When the state paints dissent as disorder

Why in the News

The mass detention of Opposition leaders, students and demonstrators in Delhi protests demanding the Chief Election Commissioner‘s resignation has reopened whether the state may treat peaceful dissent as disorder. The Supreme Court has clarified that such assemblies may be regulated, not prohibited.

What does the right to peaceful assembly protect?

1. What it is: Article 19(1)(b) guarantees citizens the right to assemble peaceably and without arms. It works like a public road that traffic police may regulate but not close for good.
2. Limits on the right: Article 19(3) permits reasonable restrictions, including for public order, so only a peaceful assembly is protected.
3. Regulable, not refusable: Himat Lal K Shah (1973) held that assembly is a fundamental right the state may regulate but not refuse arbitrarily. Ramlila Maidan Incident (2012) held that arbitrary executive action cannot extinguish peaceful protest.
4. The takeaway: The state may manage when and where people protest, but cannot treat a peaceful crowd as a threat.

How do other democracies draw the line?

1. United States, First Amendment: It protects the right to “peaceably assemble”, subject to reasonable time, place and manner rules.
2. United States, Brandenburg vs Ohio (1969): Speech urging unlawful acts is punishable only when aimed at, and likely to cause, imminent lawless action.
3. Germany, Article 8 of the Basic Law: It protects assembly “peacefully and without arms”.
4. Germany, Brokdorf decision (1985): The Federal Constitutional Court treated demonstrations as integral to democracy and required proportionate limits, with a ban only as a “last resort”.

What did the framers decide on preventive detention?

1. Article 22’s origin: Draft Article 15A, debated in September 1949, became Article 22.
2. Fear of executive whim: H V Kamath and Pandit Thakur Das Bhargava warned against detention on mere executive whim.
3. Ambedkar’s compromise: B R Ambedkar held that a young state facing Partition violence needed preventive detention, with safeguards: grounds communicated, and an advisory board‘s approval for detention beyond three months.
4. 44th Amendment safeguards: Preventive detention entered as an exception, not a routine tool. The 44th Constitutional Amendment (1978) added safeguards that are still not in force.

Why do the Delhi detentions fail the constitutional test?

1. Concentric circles test: Ram Manohar Lohia vs State of Bihar (1966) separated “law and order”, “public order” and “security of the State”. Only an aggravated breach of law and order becomes a public order issue.
2. Earlier Lohia ruling: In Ram Manohar Lohia (1960) the Court held illegal a detention over a mere call to stop paying irrigation rates.
3. Delhi as law and order: The peaceful protests are at most a law and order matter, so detaining MPs, lawyers and journalists even after the Supreme Court’s directions is not justified as public order.
4. Liberty precedents: Arnab Goswami (2020) held that even a day’s loss of liberty is grave. Justice H R Khanna‘s dissent in ADM Jabalpur (1976) rejects liberty resting on executive grace.
5. Three tests: Detention is valid only if:
   • the assembly was not peaceful;
   • the feared disorder was specific and imminent;
   • custody was proportionate: short, with grounds given and production before a magistrate within 24 hours under Article 22(1) and (2).

Challenges

1. Elastic “public order”: The Constitution leaves the ground undefined, so police can stretch it to cover mere inconvenience.
2. Routine prohibitory orders: Blanket bans on gatherings under Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 can foreclose assembly before any disorder.
3. Short detentions escape review: Release within hours ends the case before any court tests the grounds.

Way Forward

1. Notify the 44th Amendment: The Union government should bring the pending advisory board safeguards into force.
2. Written grounds: Police should record grounds and timings for each detainee, open to a magistrate’s review.
3. Alternative venues, not bans: Authorities should offer a larger site or capped numbers before refusing any assembly.

Conclusion

The Constitution lets the state manage protest and, in narrow cases, detain in advance, but never recast peaceful dissent as disorder. The test now is whether courts examine each Delhi detention or let it lapse.

Back2Basics: Preventive detention

1. Nature of the power: Detention to prevent a future act, not punish a past one, on executive satisfaction without trial.
2. Ordinary safeguards excluded: Article 22(3) switches off the arrest safeguards, including the magistrate rule, for preventive detainees.
3. Longer detention: Article 22(7) lets Parliament prescribe cases where detention may exceed three months without an advisory board’s opinion.
4. Central statute: The National Security Act, 1980 allows preventive detention to protect security and public order.

Matching Previous Year Question

“[2014, GS2, 12 marks] What do you understand by the concept “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss.”