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Protester's Freedom Of Peaceful Assembly

Shivansh Saxena
13 May 2021 10:18 AM GMT
Protesters Freedom Of Peaceful Assembly

In recent times, we all have been seeing the vilification of protesters and their right to peacefully assemble. Be it the case of Anti-CAA protesters or Kashmiris or Farmers, the script has been the same. Somehow the violence breaks out during a peaceful procession or protest which gives the authorities a license to baton charge the protesters and fire tear gas. These events are...

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In recent times, we all have been seeing the vilification of protesters and their right to peacefully assemble. Be it the case of Anti-CAA protesters or Kashmiris or Farmers, the script has been the same. Somehow the violence breaks out during a peaceful procession or protest which gives the authorities a license to baton charge the protesters and fire tear gas. These events are always followed with people questioning the legitimacy of the whole movement and the protesters justify the fiasco by blaming it on some "anti-social elements". The state usually imposes section 144 of the Criminal Procedure Code, 1973, or shuts down the Internet to muzzle the dissent. We have been seeing a significant rise in the number of internet shutdowns and the imposition of section 144, especially in Kashmir. This article will discuss whether the right of peaceful assembly is an individual right or a collective right, or both in the context of International Law and will briefly touch upon the imposition of Section 144 and Internet Shutdowns.

Nature of Freedom of Assembly

The fundamental right of peaceful assembly enables individuals to express themselves collectively and to participate in shaping the society. It can be found in multiple Human Rights Instruments like Article 20 of Universal Declaration of Human Rights, Article 21 of International Covenant on Civil and Political Rights, Article 11 of Europe Convention of Human Rights and Article 15 of American Convention of Human Rights. The right of peaceful assembly is important in its own right, as it protects the ability of people to exercise individual autonomy in solidarity with others. The freedom of assembly in a peaceful and non-armed manner is a fundamental right guaranteed under the constitution of the country, but a long list of incidents show that right is subject to government arbitrariness and often abused by highly-handed police. It constitutes an individual right that is exercised collectively. Inherent to the right is thus an associative element.

Human Rights Resolution 15/21 also reaffirms that "everyone has the rights to freedom of peaceful assembly and of association". This provision must be read jointly with article 2 of the International Covenant on Civil and Political Rights, which stipulates that "each State Party undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status", and article 26 thereof, which guarantees to all individuals equal and effective protection against discrimination on grounds identified in article 2.

Article 21 of the Covenant protects peaceful assemblies wherever they take place: outdoors, indoors and online; in public and private spaces; or a combination thereof. Such assemblies may take many forms, including demonstrations, protests, meetings, processions, rallies, sit-ins, candlelit vigils and flash mobs. They are protected under article 21 whether they are stationary, such as pickets, or mobile, such as processions or marches. Establishing whether or not someone's participation in an assembly is protected under article 21 entails a two-stage process. It must first be established whether or not the conduct of the person in question falls within the scope of the protection offered by the right, in that it amounts to participation in a "peaceful assembly". If so, the State must respect and ensure the rights of the participants. Second, it must be established whether or not any restrictions applied to the exercise of the right are legitimate in that context.

Although the exercise of the right of peaceful assembly is normally understood to pertain to the physical gathering of persons, article 21 protection also extends to remote participation in, and organization of, assemblies, for example online. Spontaneous assemblies, which are typically direct responses to current events, whether coordinated or not, are equally protected under article 21. Counterdemonstrations are the assemblies which take place to express opposition to another, which have recently become very common, also fall within the scope of the protection of article 21. While the right of peaceful assembly may in certain cases be limited, the onus is on the authorities to justify any restrictions. Authorities must be able to show that any restrictions meet the requirement of legality, and are also both necessary for and proportionate to at least one of the permissible grounds for restrictions enumerated in article 21. The last part of the second sentence of article 21 sets out the legitimate grounds on which the right of peaceful assembly may be restricted. This is an exhaustive list, consisting of the following grounds: the interests of national security; public safety; public order; the protection of public health or morals; or the protection of the rights and freedoms of others.

The right to freedom of peaceful assembly includes the right to plan, organize, promote and advertise an assembly in any lawful manner. Any restrictions on such activities should be considered as a prior restriction on the exercise of the right. Restrictions on freedom of association and of expression may also effectively serve as a restriction on freedom of peaceful assembly, whereas Disha Ravi, a 22-year-old climate activist was arrested for editing a document called "toolkit" for promoting and organizing ongoing farmer protests, which police alleged is evidence of a co-ordinated international conspiracy against India. She's currently out on bail.

Violent nature of a particular individual does not take away the right of another individual to peacefully assemble in order to exercise the solidarity of a collective. It is the responsibility of the state to rectify the violent individual and help in the execution of other peaceful individual's right to assemble.

Section 144 and Internet Shutdowns

The imposition of Section 144, shutting down Internet and stoppage of Railways as a "precautionary measure" to stifle to protests is the new normal. Shutdowns in our country's political and press network and around the republic on a daily basis are incompatible with the new vision of digital India and our founding idea of constitutional, democratic respect for rights. India has faced 510 Internet Shutdowns since 2014, the number of shutdowns have increased by each passing year. It started with 3 in 2012 and now we're at 129 only in 2020. Longest Internet Shutdown has been faced by Kashmir for 213 days after the abrogation of Article 370 from the Constitution of India.

While the State has power to shut down the Internet in cases of "public emergency", it must pass the test of proportionality wherein, a rational nexus should exist between the objects and the means adopted to achieve them. The court in People's Union for Civil Liberties (PUCL) v. Union of India (AIR 1997 SC 56) clarified the meaning of "Public Emergency" to be the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. It is one which raises problems concerning the interest of public safety, the sovereignty and integrity of India, the security of the State, friendly relations with sovereign States or public order or the prevention of incitement to the commission of an offence. A four pronged test was curated in K.S. Puttaswamy v. Union of India to assess the proportionality of state action as: a) The action must be sanctioned by law; b) The proposed action must be necessary in a democratic society for a legitimate aim; c) The extent of such interference must be proportionate to the need for such interference and d) There must be procedural guarantees against abuse of such interference.

Section 144 of CrPC is purposed to be imposed when immediate prevention or speedy remedy is desirable. Section 144 (1) of Code of Criminal Procedure, 1973 provides that mere opinion of the Magistrate as to the existence of sufficient ground for proceeding would be enough or issuance of order contemplated under the section. However, the Supreme Court has established the objective tests to undo the risks of subjectivity attached u/s 144(1) (Babulal Parate vs State of Maharashtra, 1961 AIR 884). The test laid down in the Section is not mere likelihood or tendency. The section says that the magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. As per the Ramlila Maidan Incident case ((2012) 5 SCC 1), some necessary prerequisites of the order under Section 144 Cr. P. C are: a) It is an executive power vested in the officer so empowered; b) There must exist sufficient ground for proceeding; c) Immediate prevention or speedy remedy is desirable; and d) An order, in writing, should be passed stating the material facts and be served the same upon the concerned person. It is established that in the absence of any "imminent danger" to the peace and tranquillity, the imposition of section 144 cannot be done on remotely related evidence. Therefore, a mere apprehension is not a valid ground for the imposition of section 144.

The Apex Court has established in Anuradha Bhasin v. Union of India that orders passed under the section have direct consequences on the fundamental rights of the public and such power, if used in a casual and cavalier manner, would result in severe illegality. The danger contemplated should be in the nature of an 'emergency' and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. The power under Section 144, CrPC cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.

Imposition of Section 144, Internet Shutdown and Railway stoppage all result in the violation of our right to peaceful assembly as discussed above. International Law has been quite progressive in terms of human rights but it still feels like a utopian concept in terms of states executing them. Unpeaceful nature of some has been an excuse for the state to suppress the rights of the peaceful ones. One has to take the permission from the authorities to gather for a procession or a protest, if a permission is required to exercise an intrinsic right, is it really a right?

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