The duty of the state to preserve public order should never extend to the suppression of political views contrary to those of the government. It is quite unedifying for the state to use its power to regulate public protests to negate the people’s right to assemble peacefully. The State-wide clamping of prohibitory orders under Section 144 of the Code of Criminal Procedure in Uttar Pradesh and Karnataka are stark examples of the misuse of regulatory power to suppress the lawful exercise of constitutional rights. As protests against the Citizenship (Amendment) Act escalate in several cities and towns, the invocation of Section 144 in a whole State does not seem to be in conformity to the general rule that such a restriction on fundamental freedoms should be “reasonable, least invasive and bona fide”. On top of it, Internet and mobile phone services were suspended and some Metro Rail stations shut down in Delhi. Restrictions wider than necessary tend to suppress rather than regulate. Were all these steps justified, especially in the light of judicial pronouncements that draw the limits of the power to regulate assemblies? The apex court has often said an order under Section 144 has to be reasonable and be “minimal”. It meant that the order should be limited to specific localities, and in response to a particular situation. “Such restraint should not be allowed to exceed the constraints of the particular situation, either in nature or in duration,” it observed.
A widespread protest may indeed regress into violence, but “the perception of threat to public peace and tranquility should be real and not imaginary or a mere likely possibility,” the court observed, while examining the lawfulness of the police action on a gathering of peaceful protesters at Delhi’s Ramlila Maidan in 2011. In this backdrop, the action of the police in Bengaluru and Delhi in preventing protesters from gathering, and the denial of permission to hold any protests in several other places, was excessive. An orderly assembly armed with a permission that contains limits on duration and number is normally not likely to degenerate into violence. It is somewhat satisfying that in most cities, the protesters gathered peacefully or courted arrest. However, the incidents of disturbances from a few cities, including the police firing in Mangaluru, underscore the burden cast upon the state in protecting the constitutional guarantees of peaceful dissent on the one hand, and public order on the other. On the political side, India’s leadership will have to respond to the widespread public fears over the implementation of the new naturalisation norms. On the administrative side, however, the authorities should aim to facilitate the exercise of the people’s rights, rather than suppress them.
