'Free Speech Week’: Right to protest upheld

On February 13, the division bench of the Karnataka High Court, consisting of Chief Justice Abhay Sreeniwas Oka and Justice Hemant Chandangoudar gave much needed relief to the petitioners fighting against the arbitrary prohibitory order passed under Section 144 of the Code of Criminal Procedure (CrPc). That order had halted protests against the Citizenship Amendment Act (CAA) which were happening in Bengaluru in December. The court held that the order issued by the Magistrate was “illegal” and “did not stand the test of judicial scrutiny” laid down by the Supreme Court in Anuradha Bhasin vs Union of India and the In Re: Ramlila Maidan. The Advocate-General defended the Commissioner of Police’s decision to impose such a restriction. He argued that there was “credible information” regarding “several student and political organizations posting provocative statements” which resulted in sudden protests without prior permission. The government’s apprehension was that “some people may take law into their own hands.” This raises the question: Are precautionary orders under Section 144 intended to prevent assembly or to prevent speech in assembly?

On February 18, the Islamabad High Court held that Islamabad police had violated the constitutional rights of protesters who were arrested for protesting the arrest of human rights activist Manzoor Pashteen. While the advocate on behalf of the government defended the charge of sedition against the protesters on account of it being “speech against the State,” Justice Athar Minallah gave a progressive judgement stating, “An elected democratic government cannot place curbs on freedom of expression.” There is a clear trend that is noticed here: The executive’s tendency to use its powers to curb the fundamental rights of citizens. Be it Pakistan or India, the right to fully and freely criticize the government is looked down upon.

‘This is Pakistan, not India’

Justice Minallah couldn’t resist taking a jibe at India for not protecting the constitutional rights of protesters – “Everyone’s constitutional rights will be protected. This is Pakistan, not India.” And that makes one wonder when Pakistan obtained such bragging rights over adhering to constitutional values, and as to how bad the state of affairs are in our country.

Where protests are concerned, the rights of the protesters are essentially nullified whenever there is an arbitrary imposition of an order via Section 144 of the CrPC, or if there are charges of sedition levelled against protesters for statements that are allegedly made during the protests.

An excellent example of the latter instance would be when the Mumbai Police filed an FIR against a protester holding a placard with a “Free Kashmir’’ slogan. The protest had been organized to protest against the violence against the students and faculty of Jawaharlal Nehru University in early January. The protester issued an apology and had also “clarified her stance” via a video message on Facebook.

The problem here is not just the fact that the basic freedom of individuals to express their concerns is severely affected. The problem here is that the very same executive branch that is responsible for imposing a Section 144 order also takes the extra initiative of filing sedition charges against protesters. While the executive order of Section 144 is a preventive action to ensure that the state of affairs are in control, the police (themselves) filing a sedition charge further makes it apparent that the State is not comfortable with allowing citizens to exercise their basic fundamental right to free speech and expression, which seems to be more problematic than their assembling together.

Reports state that about 600 anti-CAA protesters have been accused of sedition in Uttar Pradesh. Even if the charges are later dropped, it is to be noted that “The process of a long-drawn trial then becomes the punishment.” The social and economic costs thus imposed on the protesters once they are charged during a protest has a potentially ‘chilling effect’ on free expression by them and by others.

Bombay HC’s comeback

In the same week, the Bombay High Court, on yet another progressive note, delivered a judgment that quashed a previous executive order prohibiting protests against the CAA. The protest, which was supposed to be peaceful, was denied permission through this order by the District Magistrate, who even banned activities such as sloganeering, singing and beating drums. The court, in its order, discouraged the culture of terming protesters as “anti nationals” and “traitors” and also upheld the importance of their right to peaceful protests.

The issue of suppressing protests was addressed in the judgement of the Bombay High Court discussed above as it also provides a solution for the arbitrary decisions taken by the executive.

The court suggested that officers from the bureaucracy who are vested with powers of suppressing protests “need to be sensitized by giving them proper training on human rights, which are incorporated as fundamental rights in the Constitution.”

The need to train and sensitize the bureaucracy is an important solution to be considered in order to ensure that the fundamental rights of protesters are not overridden, especially when there is no imminent threat to public interest in the first place.

History is filled with examples and cases where the State has used the law as an instrument of oppression. However, whenever such State-sponsored suppression has occurred, citizens have always risen to the occasion. Our judiciary has upheld this long tradition by rightly choosing to allow for non-violent means of dissent to persist, despite the executive will to the contrary. The week from Feb 13 to Feb 18 was an empowering and memorable one, unlike the entire winter session of Parliament.

(The writer is Policy Officer, Centre for Internet and Society, Bengaluru)