Police fails test of law every time Chandrashekhar Azad or an anti-CAA protester is detained

Every citizen, including the women at Delhi’s Shaheen Bagh, has the right to protest peacefully, especially, against government. And police can’t detain them.

Bhim Army chief Chandrashekhar Azad leads a protest against the CAA at Jama Masjid in Delhi | Photo: Suraj Singh Bisht | ThePrint

Bhim Army chief Chandrashekhar Azad is an untested leader. He speaks about Dalit rights and against the ruling BJP’s Hindutva policies. But what makes him stand out is his repeated presence at protests, including those organised by others, and his ability to attract law enforcement agencies. Azad has been arbitrarily detained multiple times, but these have only helped increase his stature and followers.

Governments, whether it is Yogi Adityanath’s in Uttar Pradesh or at the Centre led by Narendra Modi, seem to be afraid of him. Why else would he be repeatedly jailed or barred from entering a state on specious grounds like his presence at a protest could endanger public peace? The Telangana Police claimed that the anti-Citizenship Amendment Act (CAA) rally that Chandrashekhar Azad was planning to attend was being organised without proper permissions. In December too, the Bhim Army chief had been arrested and forced to spend nearly a month in prison for trying to take out a march from Delhi’s Jama Masjid to Jantar Mantar against the CAA. But Azad isn’t alone. There are others who have been detained arbitrarily, mostly to prevent them from making it to anti-CAA rallies. Although, BJP members or its supporters haven’t faced similar action despite their pro-CAA rallies containing provocative slogans and threats.

In the lawbook

The Indian law favours those opposing any arbitrary decision by the government. To detain anyone for this reason is a strict no-no.

The repeated detentions of Azad show that the law enforcement agencies are ignoring the fact that to protest against injustice – factual or even perceived – is guaranteed under the Constitution that all Indians, including those in power, celebrate every year. In trying to force peaceful protestors to retreat, the Narendra Modi government appears to have overlooked what its own former Finance Minister Arun Jaitley had said on the matter.

Every citizen, including the women protesting at Delhi’s Shaheen Bagh – who are being labelled “anti-national” by ministers and journalists – has the right to protest peacefully, including, and especially, against the government. The fundamental right of peaceful assembly is guaranteed under Article 19 (1)(b) of the Constitution of India. Raising slogans against the government is also okay and can’t be termed sedition.

SC on arbitrary detentions

In several judgments, the Supreme Court has reiterated that the police can’t deprive anyone of personal liberty as guaranteed under Article 21 of the Constitution, which declares that “no person shall be deprived of his life or personal liberty except according to procedure established by law”.

In Maneka Gandhi versus Union of India, the Supreme Court held that, “The procedure established by law which affects the liberty of a citizen must be right, just and fair and should not be arbitrary, fanciful or oppressive and that a procedure which doesn’t satisfy the said test would be violative of Article 21 of the Constitution.”

But, police action, including against CAA protesters, shows that the police force across several states has chosen to ignore the settled law.

More worrisome is the absence of an adequate and strong response from the courts to put a curb on police excesses.

Supreme Court on right to protest

In February 2012, the Supreme Court bench of Justices B.S. Chauhan and Swatanter Kumar, in the matter of midnight action by Delhi Police on protesters, including Ramdev, held: “Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitation are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the government on any subject of social or national importance.”

And guess who lauded the judgment? Arun Jaitley.

In a column headlined ‘Can The State Restrict A Citizen’s Right To Protest?’, written after the Supreme Court judgment, in that case, the lawyer-turned-politician wrote: “The right to peacefully protest subject to just restrictions is now an essential part of free speech and the right to assemble. Additionally, it is an affirmative obligation of the State to make that exercise of this right effective.”

If the anti-CAA, or even pro-CAA, protesters need any inspiration, it can be found in the BJP leader’s comment on the judgment: “A citizen cannot be compelled to abdicate his fundamental rights merely because the State decides to restrict his right to protest… However, it (judgment) shakes the foundation of the fundamental right by laying down a highly doubtful proposition that once the right to protest is denied, the protester must meekly accept the denial or run the risk of a contributory negligence to the police oppression.”

Jaitley also found glaring loopholes in the Supreme Court’s understanding of the citizens’ right to protest peacefully if the police doesn’t permit an assembly. “It (the judgment) imposes an obligation on the protesters to obey every lawful order. Admittedly, neither the imposition of section 144 in this case (Ramdev-led protest) nor the withdrawal of permission or the manner of forcible eviction was lawful. Why should the protesters have accepted such an order? How then can the principle of ‘contributory negligence’ be imposed on a protester who was exercising his fundamental right to protest? The concept of ‘contributory negligence’ is born out of a law of tort. It cannot be used to dilute the width and exercise of a fundamental right,” Jaitley wrote.

What courts can do

In recent times, Indian courts have shown a growing tendency to ignore serious violations of citizens’ right to protest, often agreeing to claims and assertions made by the government and its agencies. There is urgent need for the courts, especially the Supreme Court, to show more concern in protecting the rights of the citizens, even if the reason to hold a protest seems flawed or is based on questionable claims.

There can’t be any ifs and buts when it comes to upholding the fundamental rights of the citizens. The scales of justice, in such cases, should ideally tilt towards the citizens.

The author is a senior journalist. Views are personal.