As thousands of journalists, activists, protestors, and opposition leaders are detained across the capital, you may have heard police or government spokespeople remark that the detainees lacked the proper “permission” to protest. Prima facie, it seems paradoxical that citizens require permission to protest from the very sovereign whose conduct they are protesting.
But the incongruity remains a parting gift from the British Raj to any future governing class in India. The Police Act of 1861, in varying sections based on the state, grants local forces the sweeping power to "direct the conduct of all assemblies and processions." To comprehend the absurdity of the antiquated permission system, one must unpack the oppressive circumstances in which it was born.
Born of Blood and Rebellion, Built for Control.
in 1857, the armed Indian Rebellion against the British Empire had just been brought to a screeching halt. Indian bodies and blood filled the streets of Delhi. It is in the immediate aftermath of this catastrophe that the crown decided its police must have a tighter leash around the Indian public. The Police Commission of 1860 was established with the primary objective of preventing local resistance by any means necessary. Born from the desire to subjugate the Indian populous: the Police Act of 1861 was written into existence. Under the act, police were given sweeping powers to arrest anyone they deemed responsible for causing a "nuisance". Further, vague provisions such as the right to arrest someone "found under suspicious circumstances between sunset and sunrise" allowed officers to exercise discretion usually reserved for courts. They became judge, jury and executioner in the streets. With military-like powers, the Raj's khaki force was able to suppress dissenters across the many civil disobedience and non-cooperation eras. The statute quickly became the bedrock upon which the mecca of British extraction was constructed.
The Raj Left. Its Police Laws Stayed.
Shockingly, the act remains largely intact today across India, closest to its original form in states such as Uttar Pradesh, Gujarat, Tamil Nadu and Delhi. Across these states, Police further have a right to arrest anyone they deem responsible for "Misbehaviour with intent to provoke a breach of the peace." With misbehavior left intentionally broad and undesigned by the Raj, officers of the independent Indian state have inherited the authority and jurisdiction to preventatively arrest citizens based on a personal apprehension and perception of their intentions.
Republic Was Not Built to Ask Permission
The Police Act's textually explicit dominion over assemblies is ironically disharmonious with the constitutional right to “assemble peacefully” under Article 19 of the Constitution of India. The Colonial Code that governs the streets is, at the very least, textually in conflict with the law that governs the land. When considering which of the two takes precedence in today's enforcement, it is important to consider the history that shaped the Indian invention.
Over 30,000 people were arrested in the Non-Cooperation movement of 1921; 26,000 in the Civil Disobedience Movement of 1932. All these suppressions of dissent were empowered by the same Police Act that gave the officers at Jallianwallah Bagh the courage, jurisdiction and protection to fire on their fellow countrymen. Having freed themselves from these legal shackles of oppression, the constituent assembly enshrined the right to express oneself and assemble peacefully under Article 19(1)(b) of the Constitution. And while Article 19(3) allows the State to impose reasonable restrictions on this right in the interests of public order, it intentionally does not make the ability to assemble contingent on permission granted by the government.
Weary of a possible fracture in the newly woven amalgamation of princely states, the Fundamental Rights Sub-Committee within the Constituent Assembly suggested adding a proviso to Article 19(1)(b) allowing the state to “prevent or control meetings which are likely to cause a breach of the peace or are a danger or nuisance to the general public”. But Vallabhai Patel, the man most intent on preserving the union at all costs, put his fut down and refused.
To the ones who paid for their right to dissent in blood and sacrifice, it was inconceivable to allow their hardfought freedom to be subject to such colonial bounds ever again.
The Courts' Balancing Act
The founding fathers were not alone in their vision of a land in which all can assemble and voice their concerns; the courts have tried to carve out this balance despite the existence of statutory law that provides the police with holistic discretion over public assembly.
In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad [(1973) 1 SCC 227], the petitioner challenged the Police's broad powers to regulate assemblies and processions in public spaces. The bench struck down the rules created by local police, holding the powers empowering their creation to be “an unguided discretion, practically dependent upon the subjective whim of an authority to grant or refuse permission to hold a public meeting on public street, cannot be held to be valid.”. While the judgement separately affirmed the practice of seeking permission for planned assemblies on public streets ,different to denoted protest sites that are intentionally chosen based on isolation from public streets, it attacked the seemingly arbitrary discretion the Indian police must refuse the permission to assemble.
In keeping with this logic, after demonstrations at Jantar Mantar, the bench in Mazdoor Kisan Shakti Sangathan v. Union of India ,directed the authorities to establish an appropriate regulatory mechanism for demonstrations, as opposed to the current unchecked dominion police have over protests from inception till end. The court's reasoning was rooted in the constitutional idea that the Police should have a system that accommodates peaceful protest, rather than just the power to effectively extinguish it.
Breaking the Colonial Shackles: A Gap We Refuse to Legislate
Frustrations with the act's propensity for misuse were not limited to arbitrary powers of arrest, detention and public processions. Jurists, Bureaucrats, and Academics alike linked corruption and exploitative Police behavior to the sweeping powers and discretion awarded to officers by the colonial code. As a result, the Model Police Act of 2006 was born. At the behest of the Home Ministry, Former Attorney General Dr Soli Sorabjee and a committee of distinguished Law Enforcement Personnel produced an act that proposed the following amended power of Police over public processions:
“Any person intending to organise a procession, religious, social, political or otherwise, on any road, street, or thoroughfare, or convene an assembly in any public place [...] shall give intimation in writing to the officer in charge of the concerned Police Station.”The text is clear: intimation, not permission.
The Model Act drafted to rid the present codes of corruption, powers prone to misuse, and unchecked jurisdiction drafted by veterans of the system was keen to uphold citizens' collective rights to gather. They understood that law enforcement need not decide who can protest and why but rather must be informed to be able to maintain public order.
Thus, in a model world: our police are not judges or juries. Rather, they are merely the civilian custodians of public order. Someone to keep informed, and trust to keep your city running. Not the overarching body that decides your rights based on its perception of your intentions. However, the Police remains a State Subject under the Seventh Schedule of the Constitution, and no state has notified the Model Act in the 20 years since its inception. 17 States have passed amendments since. Not even one of those amendments has taken away the discretionary powers of regulation or arrest the British Raj gave its boots on the ground.
Today, in the seeming conflict between colonial codes crafted to oppress us, and the constitution drafted to liberate us: the choice should be clear.
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