Delhi Police is not allowing protests against the Narendra Modi government at the Centre.
Opposition leaders and social workers are being detained for protesting.
Many questions are being raised on this stance of Delhi Police.
The first question is whether Delhi Police is violating the freedom of expression guaranteed to every citizen under Article 19(1)(a) of the Indian Constitution?
The right to peaceful protest is enshrined in this article of the Constitution and is considered very important in a democracy.
Human rights organization Amnesty International has also questioned the stand of Delhi Police, saying, "The right to demonstrate peacefully is not dependent on the permission of the government. It is protected under the Indian Constitution and international human rights law."
Article 19 (1) (b) of the Constitution gives the right to all citizens of India to assemble peacefully and without arms.
The Supreme Court has considered these two provisions together as the constitutional basis of the right to protest.
In paragraph 61 of the judgment given on 23 July 2018 in the Mazdoor Kisan Shakti Sangathan vs Union of India case, the Supreme Court had said, "Undoubtedly, the right of the people to peacefully demonstrate and protest is a fundamental right given under Articles 19(1)(a) and 19(1)(b) of the Constitution."
What is the provision in the Constitution?
RK Singh, former Home Secretary of India and a minister in the Modi government, has also described the attitude of Delhi Police as a violation of fundamental rights.
RK Singh has written on X, "Under Article 19 of the Indian Constitution, it is the fundamental right of the citizens to demonstrate or march peacefully and without weapons. Why is the police stopping the protest at Jantar Mantar in Delhi? IAS and IPS take oath to work as per the Constitution and law. Delhi Police should work accordingly and not according to the illegal orders of any leader.
Police denial of permission to protest is a ban on a particular activity, not a suspension of Article 19. Its validity will depend on the law, the reasons for the refusal and whether it meets the test of a constitutionally reasonable restriction. The police cannot use the permission system as a right to impose arbitrary restrictions on peaceful assembly.
Dushyant Dave, a senior Supreme Court lawyer, says that the police no longer follow the Constitution and the law but follow the orders of the ruling party.
Dushyant Dave told BBC Hindi, "The right to protest is our fundamental right. If the countrymen want to protest against any decision of the government or any action of the government, then they can protest. It has got a guarantee in the Constitution. Democracy will not function without opposition.
Dave says, "If you say that India is a vibrant democracy, then these protests must happen." Whenever BJP wants a rally, they are immediately given permission. A big rally of Narendra Modi is taking place today itself. They get permission immediately. The police provides all facilities to the ruling party. When the same demand is made by the opposition, there is a completely different behavior.
Dushyant Dave says, "This is definitely a violation of fundamental rights." Freedom of speech and expression is guaranteed under the fundamental rights. The misfortune of this country is that every government uses the police as political agents. Nothing in our country, whether government officials or the justice system, is independent anymore.
“In case of violation of fundamental rights, you can go to court, but today even our courts are no longer independent. Police will come and say that this protest may lead to law and order situation. Police can give any excuse. In such a situation, if the opposition is protesting without police permission, there is no harm in it.
On what basis is Delhi Police not giving permission?
In such a situation, the question arises that on what basis is Delhi Police suspending this fundamentalist? Dushyant Dave says, "You can stop freedom of expression." If someone misuses the freedom of expression and makes any objectionable statement against the country, conspires to remove the government and simultaneously indulges in violence and violates law and order, then the police can suspend this right.
Dushyant Dave says, "But that happens only when you have given permission and the permission is being misused." You are not giving permission in the first place. I think that the government and Prime Minister Modi himself should understand that this protest is an important part of democracy, which should not be stopped.
On what basis does the police deprive this right?
Freedom of expression is subject to reasonable restrictions under Article 19(2), while the right to peaceful assembly is subject to reasonable restrictions under Article 19(3). Therefore, considering the right to protest as a fundamental right does not mean that it is mandatory to allow every demonstration at every place and at all times.
Article 19(2) allows laws imposing reasonable restrictions on freedom of expression on eight grounds:
1. Threat to sovereignty and integrity of India
2. Threat to state security
3. Threat to friendly relations with other countries
4. Threat to public order
5. Violation of etiquette or ethics
6. Contempt of court
7. Defamation
8. Incitement to commit a crime
Fundamental rights cannot be suspended merely by saying something that the government does not like. But its interpretation is also a complex process.
