Hi tribe!
In the last few years, as a society, we have witnessed many challenges and life-altering events. You may think I am referring to the covid pandemic, but no. The events that I am talking about are the number of protests our country has seen - CAA, farm bills, hijab ban, agniveer being a few of the recent ones.
While protests have been a powerful tool across many movements in Indian history, recent events have left us with many questions - Is protesting legal in India? How can something that involves disruption of society and destruction of property be legal? If someone is arrested during a protest, do they have the same rights as any other citizen?
As these questions mount, this issue will attempt to explain the law on protests in India. Here goes..
Is protesting legal?
Yes, it is. But there are some conditions attached to it. As you may know, rights and duties are said to be different sides of the same coin - this means that every right comes with a correlative duty. Similarly, in this case, if you want to exercise your right to voice your concerns and protest, you can do so, provided you do it peacefully and with appropriate permissions wherever necessary.
A citizen’s right to protest is derived from the fundamental rights given in our Constitution. It flows from your fundamental right to freedom of speech and expression and your right to assembly in public places without arms(Article 19). But it is important to note here that just like other fundamental rights, these too come with certain reasonable restrictions. This means that your right to protest is not unconditional.
If you are holding a protest at a public place, you must ensure that it is a peaceful public gathering and all necessary permissions for that gathering have been taken from the police prior to the day of the protest. This is the correlative duty to your fundamental right to protest. If you want to carry out a protest you must ensure that you promote harmony and spirit of brotherhood, safeguard public property and not participate in any violent activity (Article 51A, Constitution of India).
To know more about how to carry out a peaceful protest and what permissions to apply for, check out this guide I had worked on when I was working at Nyaaya.
Can you carry out a protest when a curfew is in place in a particular area?
No, you cannot assemble in groups to protest when a curfew is imposed. A curfew order is usually passed by a District Magistrate in cases where immediate prevention is required in anticipation of activities like riots, fighting, disruption of public peace, any obstruction, annoyance or injury to any person, danger to human life, etc.
There have also been cases where curfew order has been imposed to disburse a protest.
In 2011 as a part of the anti-corruption movement, when the mass protests were ongoing in the Ramlila Maidan in Delhi, a curfew order was imposed at midnight and protesters were forcibly evicted from the maidan. Extreme measures like water cannons, lathi charge and tear gas shells were used to evict people who were peacefully protesting. This injured several people and killed one. The Supreme Court initiated the case on its own and held that the people gathered at the Ramlila maidan had the right to carry out peaceful gatherings sand demonstrations to voice their opinion as it formed a part of their right to free speech and expression under the Constitution. If a curfew was to be imposed then sufficient notice had to be given to the protestors to evacuate.
There have also been cases in the past where the courts have held that the police need to provide sufficient cause if they are to apply a curfew to disburse a protest.
What about those protests that take place without police permission, carry out violent protests and destroy property?
In law, such protest would be considered as ‘unlawful assemblies’. According to the Section 141 of the Indian Penal Code, and an unlawful assembly would be ‘an assembly of five or more persons whose common objective is to either of the following:
Show or use criminal force to intimidate the Central or State Government, Parliament or State Legislature, or any public servant
Resist the execution of a particular law or legal process
Commit any mischief, criminal trespass, or other offence
Show or use criminal force to take possession of any person’s property, or to deprive them of their rights in any way;
Show or use criminal force to make someone do an illegal act, or to stop them from doing a legally permitted act.
If an unlawful assembly uses force or violence, under Sec 146 of the Indian Penal Code they can be charged with rioting. The punishment for rioting is either imprisonment between two and three years or a fine.
What to do if you are arrested at a protest?
If you are arrested at a protest, your rights are the same as any other citizen.
Ensure the police has clear identification marks, like a name tag, etc. If not ask for their names. If it is an unlawful arrest, this information will be helpful at a later stage.
When you are arrested you can ask the police to call your lawyer and also inform a family member or a friend.
When you are arrested, the police will make a memo of arrest at the police station. Please ensure you read this memo properly. It states the details and conditions under which you were arrested – like time of arrest, witness to arrest, medical condition when arrested. All of this needs to be recorded accurately. Only after you’ve reviewed it properly, go ahead and sign it.
If you were injured during the protest or while being arrested, ask the police to get you a medical check up and to make a note of it in the memo.
Ask the police if you are eligible for bail. If the offence you are being charged with is bailable, you can complete the formalities and request bail there itself. If it is a non bailable offence, you will be produced before a magistrate where your lawyer can make the bail application. If you can’t afford a lawyer, you can ask the Magistrate to appoint you one. Remember, everyone has the right to free legal aid! The court will appoint one from the District Legal Services Authority.
Contrary to popular belief, protesting is the most democratic thing you can do! Just make sure, you do it in a peaceful manner with all necessary permissions.
A special note for Mumbaikars: We have had a very tough week. And amid all the political drama, we are now on the verge of losing our beloved green cover – Aarey. I’m sure everyone will want to raise their voice against the recent Aarey decision, but Kanooni Ben’s humble request is that you heed this newsletter and do it in peaceful and appropriate manner.
If you have any questions on the law and processes, feel free to write back and I’ll help you in any way I can.
Yours,
KB
P.S.: I’m on Twitter now. Go follow me @KanooniBen :)