Marches, dharnas, sit-ins and other forms of protest are integral to the experience of the Indian freedom struggle. So much so that the fight for independence is often recounted in phases of public movements centred around expressing discontentment with the British. However, the democratisation of the right to protest in India has been whittled down from an inviolable guarantee to whimsical and arbitrary patronage.
The Indian “Permit-Authorisation” regime which governs the right to protest has been insidiously designed to fail with unchecked executive discretion, a disproportionate burden on citizens and the relegation of protests to the manicured corners of society. The authorisation regime in India also views protests with an innately criminal lens. Taking the example of Standing Order L&O/10/2022 of Delhi Police dt. 25.05.2022 pertaining to regulation of rallies and processions, applicable in Delhi, “elaborate police arrangement” and presence is mandated at each protest gathering including a strategically placed Vajra Vehicle which is a riot control vehicle armed with tear gas launchers and riot control gear. Indiscriminate police presence at protests is on the face of it antithetical to the constitutional guarantee under Article 19.
This is in complete contradistinction with the International normative framework that requires authorisation regimes to function largely as notification regimes and holds that protests should not be held unlawful merely for the absence of sanction[1]. The authorisation regime in India however holds the power to declare any protest unlawful merely for the absence of a no-objection certificate and allows the police to disperse such an assembly regardless of its actual compliance with all requirements of a peaceful protest. Further, the requirement of prior authorisation nips in the bud any possibility of a spontaneous peaceful protest.
The UN Human Rights Committee has time and again reiterated that authorisation for protests should be content and participant neutral[2]. The Standing Order L&O/10/2022 dt. 25.05.2022, provides arbitrary power to the executive to judge “whether it is desirable to grant such permission” to a demonstration or rally based inter alia, on the nature of the demand and the leaders/ members likely to participate in it. It also empowers the executive to do a fishing inquiry into social media platforms, such as Facebook, WhatsApp, X (formerly Twitter), Instagram and YouTube as additional sources of information to discern whether such permission should be granted. This allows the executive the means to curtail the right to peacefully protest if the issues are critical of the powers that be, or found unpalatable to the bureaucracy.
The physical spaces for the exercise of the right to protest are also actively shrinking, silencing dissenting voices. Time and again the executive has repeatedly abused its discretion disallowing protests critical of the government and disbursing non-violent protests citing a lack of no-objection for holding the protest. Such protests are often seen as a vicious affront to the State and attacked with disproportionate use of force. Further, the use of unbridled violence by the State to disperse peaceful protestors is often dubbed as a “violent clash” between protestors and the police as a means to justify excessive use of force. The most recent example of this being the use of AK-47, pellet guns loaded with metallic pellets, shock batons to disperse largely peaceful protesters.
Understanding freedom of assembly through numbers
This author has learnt through RTI's that between 2022-2023 North District received 150 applications to hold protests/marches/dharnas and all were rejected; in West District 124 applications were filed and none were approved; in the North East District 5 applications were received and none were allowed; and in Outer North District 27 applications were received and there too none were allowed. One such RTI reply is appended below for illustration:
As per data collected by this author through inspection of records maintained by the Delhi Police under the RTI Act in the year 2022 the Central District rejected all 76 applications to hold demonstrations, it also rejected all 80 applications for dharnas and 19 applications for strikes. Out of a total of 32 applications for rallies, 9 were permitted and out of the 52 applications for taking out a march only 3 were permitted. Again, in the year 2023 the Central District rejected all 58 applications filed to hold demonstrations, while out of the 101 applications filed to hold dharna's 81 were rejected, and out of the 40 applications for holding a march 37 were rejected.
State as the custodian of public spaces
The Supreme Court in Amit Saini v Commissioner of Police did not reconcile the right to use of public spaces by protestors with their availability to the general public for regular use. It has placed on a higher pedestal the right to access such spaces for vehicular and pedestrian movement than their use for peaceful protests. The judgement shuns peaceful protests to 'designated' spaces ignoring the fact that the access to these spaces is limited by a red taped and more often than not arbitrary permit mechanism. A decision to restrict 'such protests' to only designated spaces acts as a fetter to accessing the right to assemble peaceably. It also brushes aside the fact that peaceful protests against apathetic governments, in order to be effective, may take a form that causes some legitimate disturbance to everyday life, forcing the government to acknowledge the existence of discontentment among its citizenry. Ease and comfort are an anathema to protests, and yield no results.
While commuters on a daily basis suffer extreme inconvenience due to development projects, is it a failure of the country's social conscience to not view protests as democratic development? The State routinely allows road blockades and traffic diversion for purposes such as political rallies, religious processions, VVIP movement, poor traffic management. Further, the administration's insistence on smooth movement of traffic is conspicuously absent every time the capital is blessed with rain. So what is so disdainful about peaceful protest that the same space and social tolerance is not extended to it?
One must ask the question that should the scheme of permission be different for sit-in protests as opposed to processions or rallies? Should stationary protests / dharnas shift from a no-objection regime to a notification regime, requiring only information to be shared and no permission to be taken, with very limited power of the executive to restrict the right to free assembly.
In the Indian imagination of a participatory democracy, the community plays a ceaseless role in development of society and policy through the right to freedom of speech and expression and non-violent protests. Any attempt of the State to relegate the participatory role of its citizenry to just the ballot, and that too a contested and truncated one, is incompatible with the constitutional ethos of India.