Lessons on the right to assembly

The right to protest is intrinsically linked to democratic rights and is guaranteed under Article 19(1)(a) (freedom of speech and expression) and Article 19(1)(b) (right to assemble peaceably and without arms). However, these are not absolute and are subject to reasonable restrictions under Article 19(3) in the interests of the sovereignty and integrity of India or public order. The editorial highlights the tension between the exercise of these fundamental rights and the state's authority to maintain public order. The Supreme Court's jurisprudence, as seen in cases like Himmat Lal vs Commissioner of Police (1972), distinguishes between reasonable regulation and arbitrary exclusion, asserting that the state cannot entirely close public spaces to assemblies. Furthermore, the court in Babulal Parate vs State of Maharashtra (1961) clarified that preventive measures like those formerly under Section 144 CrPC should only be attracted in emergencies. The ongoing challenge lies in ensuring that state actions do not create a chilling effect on free speech and assembly.

From a governance perspective, the editorial critiques the increasing reliance on preventive laws, specifically citing Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which gives broad discretionary powers to the executive. The disproportionate use of such laws to prevent disturbances raises concerns about executive overreach and the suppression of legitimate dissent. Good governance in a liberal democracy necessitates treating protests not with suspicion but as essential mechanisms for citizen engagement and feedback. The state's response, characterized by heavy deployment of security personnel and restrictive measures, reflects a shift towards treating citizens as passive recipients rather than autonomous agents. The denotification of prominent protest sites like Jantar Mantar further exacerbates this issue by physically marginalizing protests, thereby reducing their visibility and impact. Effective governance should balance the maintenance of public order with the facilitation of democratic expression.

The role of the judiciary is critical in safeguarding the right to assembly against executive encroachment. The editorial notes the Supreme Court's directive to designate 'suitable alternative sites' for protests, acknowledging the importance of accessible public spaces. However, the lack of interim orders challenging the denotification of sites like Jantar Mantar is presented as a missed opportunity for judicial intervention. The courts must continually interpret the boundaries of reasonable restrictions to ensure they do not become tools for arbitrary suppression. The use of disproportionate force, long detentions without disclosing whereabouts, and denying access to legal counsel are severe violations of due process and fundamental rights. The judiciary must actively monitor and check the state's use of public order laws, ensuring that the constitutional spirit prioritizing the right to assembly is upheld over administrative convenience.