The recent protests over the Citizenship Amendment Act, 2019 have raised pressing questions about the right to protest and the proportionality of police action. This post uses lived experiences of this author and fellow protestors to interrogate the effect of these preventive provisions of the CrPC, 1973 [“CrPC”] on the right to peaceful protest. I do this to highlight the stark difference between law and praxis and the highhandedness shown by authorities. Majorly, I tackle three situations: the need for ‘permission to protest’, the imposition of an order under Section 144 CrPC and the issuance of notices under section 149 CrPC to protestors.

Preventive Measures Under CrPC

Section 144 provides that when an authorised magistrate is convinced that immediate prevention is desirable, he can by a written order, stating material facts of the case direct a person from doing certain acts, if he feels that the direction is likely to prevent or tends to prevent obstruction, annoyance or injury or a disturbance to public tranquillity, riot or affray. A Section 144 order can also be made to the general public if the persons who are anticipated to cause mischief cannot be identified.

On the other hand, Section 149 gives a police officer the power to interpose to stop the commission of a cognizable offence, to the best of his ability. As I shall show below, this power has been read in a limited fashion by High Courts.

Lastly, the idea of taking police permissions before the conduct of a procession or a protest is also a preventive check which is commonplace in India, though this does not find any mention in the CrPC, 1973. The common denominator of all these actions is that unless limited they pose a huge threat to freedom of speech and expression and the right to assemble peacefully and without arms.

Freedom of Speech and Expression and Right to Assemble Peacefully

Part III of the Constitution provides these two rights to all citizens. The freedom to speech and expression is subject to restrictions of among other grounds: public order. In several cases, a distinction has been drawn between ‘public order’ and ‘law and order’. Absence of `public order’ is an aggravated form of disturbance of public peace which affects the general current of public life. To illustrate this: when two drunkards quarrel and fight, there is `disorder’ but not `public disorder’. However, where the two persons fighting were of rival communities and one of them tried to raise communal passions it raises the apprehension of public disorder.[Ram Manohar Lohia v. State of Bihar – MANU/SC/0054/1965] The main distinction is that where it affects the community or public at large, it will be an issue relatable to `public order’. Mere law and order threat, therefore, cannot be a ground for restricting free speech.

The jurisprudence about the nexus between speech and public order has also been well delineated in India. The close-proximity test or the clear and present danger test provides that the threat to public order should be an ‘imminent or immediate call to lawless action’.[S Rangarajan v. Jagivan Ram – MANU/SC/0475/1989 and Lohia v. Supt of Prisons – MANU/UP/0068/1955].

Several cases like Babulal Parate (MANU/SC/0155/1961) and Madhu Limaye (MANU/SC/0147/1970) have reiterated this test for issuing preventive orders. While holding section 144 constitutional, these cases have also marshalled several inherent restrictions like a written order, need for stating material facts of the case, the option to prefer appeal and revision of the order and the right to hearing to the person.

In the recent case of In re Ram Leela Maidan (MANU/SC/0131/2012) the court observed that even secret tip-off by intelligence agencies should be mentioned while writing the material facts in the order. In summary, there should be an application of mind in making out this order.

‘No Permission No Protest!’: The Rule of Supra-Statutory Police Permission

I was part of a protest by a group of like-minded citizens. The goal of the gathering was to march silently with candles along Marine Drive, Mumbai. Our application for permission was refused. The protest was to be led by some well-established members of civil society (like former IAS officer Kannan Gopinathan) with a past of resistance within the bounds of the Constitution.

On the day of the protest, a small gathering of less than 30 had gathered. The police officers instructed us not to march. Upon asking if Section 144 was imposed we were told that areas around Marine Drive were under ‘perpetual Section 144’. No order to that effect was produced. Upon later research, no Section 144 imposition was found. Mr Kannan Gopinathan, a member of the protest read right to free speech and right to peaceful assembly out to the police officers. This provoked them. The copy of the Constitution was snatched and 10 people including this author were detained.

Similarly in Bangalore 11 students were detained after they protested after the refusal of police permission. These incidents suggest that all places according to the police are for all purposes perpetually under Section 144 unless police permission is taken.

The Supreme Court observed in In re Ram Leela Maidan (supra) gave legitimacy to the idea of police permission and held that consultation with the police in deciding timing and venue is important. It held however that the refusal of permission similarly has to be subject to Article 19 test of imminent danger. Thus the determination of permission has to be ‘objective’ not vague.

Such a perpetual refusal of permission amounts to a complete ban on protest in some places and is therefore disproportionate. The Supreme Court in Hanif Qureshi case (MANU/SC/0027/1958) has held that an absolute ban has to meet the proportionality test and it has to be shown that no lesser restriction is effective. That any protest at all times near Marine Drive, Mumbai or Town Hall, Bangalore pose such an imminent danger to public order is outlandish.

In Himmat Lal Shah (MANU/SC/0583/1972) similarly striking down a law which provided that ‘no public meeting would be held without Commissioner’s permission, the court held that the commissioner must give reasons for why he denies permission and there should be criteria for evaluating permissions. Thus a blanket denial of permission cannot be contemplated as a preventive measure as it is disproportionate and does not meet any objective criteria.

The Imposition of Section 144

Section 144 as discussed above should also meet the imminent danger test. However, as of writing this, Section 144 has been imposed in the ‘whole of Bangalore’ and the ‘whole of UP’ in anticipation of a nationwide call for protest against CAA on 19th December 2019. The reason given for this by the Police commissioner of Bangalore is that fundamental rights stop when ‘inconvenience to others begins’. The ‘material fact’ stated in the Bangalore order is this: ‘anti-social elements may take advantage of the situation and cause problems’.’ Such a statement is based solely on law and order issues and therefore untenable as per the cases expounded above. The close connection test is also not met by the conjectures of ‘anti-social elements’ mentioned in the order.

What is also important to note about the Bangalore protests is that permission was given by the police for the meeting at Town Hall and later withdrawn. What led police to withdraw the permission? The Bangalore police commissioner or the order mentions no such ‘new and unforeseen’ imminent danger which necessitated withdrawal of permission and then the imposition of Section 144.

Reasonable time and notice

In In re Ram Leela Maidan, the court observed that that reasonable time and notice must be given before imposition of the order unless the very purpose of the order is frustrated by such notice.

The notice of Section 144 in Bangalore arrived at 10:00 pm in the night and was to be effective at 6 am in the morning. What is more, when students tried to assemble before the section 144 order effectuated at 6 am, they were barricaded and detained. Thus no reasonable notice for imposition has been given in this case. Further, no urgency of imposition is made out from the order of the Bangalore police which vaguely mentions ‘threat of anti-social elements’

Section 149 notice to restrain protestors

Section 149 gives a police officer the power to interpose to prevent the commission of a cognisable offence, to the best of his ability. This author was detained by the police for protesting without permission and issued a notice under Section 149 CrPC upon release asking to ‘restrain from protesting again’. Similarly, two students have been issued section 149 notices for doing a signature campaign in Pune against CAA. Crucially, no order under Section 144 was in place at that point of time in both these places. So an assembly of ‘four or more’ cannot be called an ‘unlawful assembly, as it is not an assembly in violation of ‘any law or legal process’ under Section 141 IPC. What other anticipation of ‘cognisable offence’ from these small groups of protestors?

Even so the ambit of orders made under Section 149 CrPC is curtailed. Courts have also held that this preventive power of the police should not overlap with the preventive powers of magistrate given in other preceding chapter in the CrPC. The words ‘to the best of this ability’ have been read to qualify ‘interpose to prevent cognisable offence’ holding that his powers are limited to a. ‘scheduled cognisable offences’ b. ‘limited in scope than magistrate’s preventive powers in CrPC’ [In re Hriday Biswas MANU/WB/0436/1981].

Thus, such wide restraining notice under Section 149 in such cases of peaceful, lawful protest is a severe violation of liberty. The lived experiences of protests are bringing to light what Somnath Lahiri said in the Constituent Assembly: ‘Many of these fundamental rights have been made from the perspective of the police constable’. While the constitutional law has evolved to provide the ‘imminent danger’ test, policing in India lags centuries behind making fundamental right to protest a mirage.

The article has been written by Amlan Mishra

This article was first published in the Blog namely The Criminal Law Blog