23, Jul 2018 | CJP Team
On Monday, July 23, 2018, the Supreme Court ruled that there could not be a “complete ban” on protests at Jantar Mantar in New Delhi, and directed the Central Government to formulate guidelines regarding protests. The ruling came after a petition was filed by the Mazdoor Kisan Shakti Sangathan (MKSS), challenging a 2017 order by the National Green Tribunal (NGT) that called for the banning of all protests in the Jantar Mantar area, in central New Delhi because they were breaching environmental laws.
Supreme Court Justices Ashok Bhushan and A. K. Sikri said, “There cannot be a complete ban on holding protests at places like Jantar Mantar and Boat Club (near India Gate)”. Nikhil Dey of MKSS called the ruling “a big victory” and “a very encouraging sign,” saying it is “a big step forward for the freedom of expression because all these spaces were being completely closed off and Jantar Mantar was the last remaining space…” He also noted that the court mentioned Boat Club, which Dey said “people have lost for decades”.
The curbing of spaces for public protest seems to be widespread, with Dey saying, “It’s the same kind of situation in many, many states,” naming Maharashtra as one such state, along with Rajasthan, Andhra Pradesh and others. “Traditional spaces for protests have been closed off,” Dey explained, adding, “Peaceful protests where the centres of power lie are also being closed off”.
CJP is working on a campaign to highlight instances in which protests are curbed or quashed, and appealing to authorities to safeguard the fundamental right to freedom of expression. To help support our campaign, please donate here.
The Supreme Court judgment can be read here:
The MKSS petition can be read here:
The issue of the right to protest, ingrained in Article 19(1) of the Constitution and increasingly widespread instances of the mis-use of Section 144 of the Criminal Procedure Code (CrPC) to perennially bar protests in Indian cosmopolitan towns has become an unfortunate part of public life in India.
Protest in Mumbai
Earlier this month, the Mumbai Mirror reported that a public hearing on complaints against the Aadhaar system that was due to be held at Mumbai’s National College in Bandra had to be moved because the local police allegedly pressured the college’s principal. Although National College Principal Dinesh Punjwani said the organisers had not formally booked the college venue, the event’s relocation to a Peasant and Workers Party (PWP) office in Mahim led to lower attendance than was expected.
Months before this, in late March, the Mumbai Police denied permission for a rally led by Bharip Bahujan Mahasangh president Dr. Prakash Ambedkar; DCP Deepak Deoraj, spokesperson for the Mumbai Police said, “Protesters can protest at Azad Maidan but they are not allowed to take out rally from Rani Bagh to Azad Maidan,” DNA reported. The rally had been planned to demand the arrest of Sambhaji Bhide, who was allegedly involved in the anti-Dalit violence in Bhima Koregaon in January 2018.
Again, in January 2018, the Mumbai Police denied permission to some Muslim groups to hold a protest in Mumbai’s Azad Maidan against Israeli Prime Minister Benjamin Netanyahu, who was then visiting India. Also in January 2018, the Mumbai Police denied permission for a Chhatra Bharti-organised event that was to be addressed by Dalit leader and Gujarat MLA Jignesh Mevani and student leader Umar Khalid, both of whom have been critical of the ruling party and government. The Times of India (TOI) reported that the police detained several student protesters in Mumbai’s Vile Parle. Sagar Bhalerao of Chhatra Bharti told the TOI that event “had been fixed earlier” and the hall had been booked, but that they were denied entry, saying “Reason police is citing is the news doing the rounds about Umar Khalid and Jignesh Mevani for the past few days”. Around the same time, an FIR had been filed against Mevani and Khalid for allegedly inciting violence, among other charges.
Incidents in which protest has been curbed or quashed are not isolated to 2018 alone. In December 2016, Congress leader Sanjay Nirupam accused the BJP government of silencing dissent, the Indian Express reported, after the Mumbai Police denied the Congress permission to hold a ‘silent protest’ near Prime Minister Narendra Modi’s public meeting at Mumbai’s Bandra Kurla Complex (BKC). Nirupam also alleged that he was “virtually put under house arrest” after the police invoked Section 149 of the CrPC and barred him from leaving his residence.
In April 2016, gender equality activist Trupti Desai was barred from protesting at Mumbai’s Haji Ali dargah. Police detained her before she could protest; meanwhile, Samajwadi Party leader Abu Azmi and Shiv Sena leader Haji Arafat Sheikh were permitted into the dargah, the Deccan Chronicle reported. Desai said that they wanted to hold a “peaceful protest, but were restricted from doing so. The police did not do anything against other protestors (who disrupted the women brigade’s agitation”. Desai had said she wanted a “peaceful agitation” for the right of women to enter dargah’s inner sanctum.
About the Right to Public Protest
Courts have found the right to peaceful assembly, including for the purpose of a protest, as a fundamental right, with its roots in the freedom of speech and expression outlined in Articles 19(1)(a) and 19(1)(b) of the Indian Constitution. This was held by the Supreme Court of India in Re Ramlila Maidan Incident (2012) and the High Court of Kerala in Peoples Council for Social Justice v. State of Kerala (1997). In the latter, a full Bench of the Kerala High Court considered a writ petition in which reliefs were sought against the State to ensure that all public demonstrations and processes in Cochin are conducted without impeding pedestrian traffic and free movement.
The Kerala High Court ruled that
“The right to assemble peaceably and the right to form association or union and to have freedom of speech and expression for such association or union are valuable fundamental rights recognised under our Constitution. The right to take procession along the highway is a part of this right. However, these rights should be exercised without causing injury or annoyance to others. As regards procession and street marches, the authorities have got every right to impose reasonable restrictions just as the participant of these processions and marches have got right to use the highway the ordinary citizens and pedestrians have also got equal right to pass and re-pass along the highway.”
The High Court issued certain guidelines for public processions, such as requiring advance notice to be given to the highest Police Officer for the District, and saying that the processions’ participants will not be permitted to occupy the full breadth of the road, among others.
Multiple states have local laws for regulation public processions and demonstrations. In the case of Maharashtra and Mumbai, the Bombay Police Act of 1951 affords the local police the power to formulate rules to regulate traffic and preserve order in public spaces.
As per Section 33(1)(o), the police has the power of
“regulating the conduct of and behavior of persons constituting assemblies and processions on or along the streets and prescribing in the case of processions, the routes by which, the order in which and the times at which the same may pass”.
In Mumbai and Maharashtra, it is typically necessary to acquire prior permission from the local police station that has jurisdiction over the area where the proposed protest, procession or demonstration is planned; if permission is not secured, then the police typically break up the gathering.
Requiring prior permission to stage a public protest, demonstration or procession has previously been upheld by a Constitution Bench of the Supreme Court in Himat Lal Shah v. Commissioner of Police. In this case, the court considered the right of citizens to hold meetings on public streets, and the restrictions that could be imposed on on this right. The Supreme Court ruled that “the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place,” but “can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order.” The court also stated, “We may make it clear that there is nothing wrong in requir- ing previous permission to be obtained before holding a public meeting on a public street, for the right which flows from Art. 19 (1) (b) is not a right to hold a meeting at any place and time. It is a right which can be regulated in the interest of all so that all can enjoy the right.”
According to Article 19 of the Indian Constitution, “Protection of certain rights regarding freedom of speech etc:”
“(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations and unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practise any profession, or carry on any occupation, trade or business”
The complete text of Article 19 may be found here.