Case Note: Himat Lal K. Shah v Commissioner of Police, Ahmedabad

Introduction

Freedom to assemble for the protection of rights is regarded as essential for the efficient working of democracy. Article 19(1)(b) of the constitution of India provides right to freedom of assembly without the use of arms, but this right is not absolute it is subjected to restriction under Ar. 19(3) on the basis of public order, national security, foreign relations, etc.[1]

In the case of Himmat K. lal shah v. Commissioner of Gujrat, where rules gives police power to restrict any public meeting on public places without any reason.[2] The implication was that the police authority were given limitless power and negligible accountability of police towards the right to assembly provided by constitution.[3]

The broad aim of this case note is to advocate for an interpretation of the law that is both cognizant of and conducive to the citizen’s right to Freedom of Assembly peacefully and without arms. To the end, the author will argue firstly, the scope of Article 19(2) has been narrowed down by SC in present day, when see in context of Himmat Lal case,

Secondly, the extent of public order, to assemble in a designated place, has been increased arbitrarily without considering the Freedom of Assembly as an essential part of democracy.

Case Background of Himat Lal K. Shah v Commissioner of Police, Ahmedabad

In the case of Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, where the rules framed by the Commissioner of Police under Section 33(1)(o) powers conferred by the Bombay Police Act,1951 were challenged.[4]

The Rules contain that no public meeting with or without a loudspeaker shall be held on a public street within the jurisdiction of the Commissionerate of Police, Ahmedabad, without taking written permission from the officer authorized by the Commissioner of Police.[5]

The High Court of Gujrat dismissed the petitions challenging these Rules and thus appellant reached the Supreme Court.[6] The Court dealt with two broad questions

1. Whether the citizen of India has the right to hold a public meeting on public streets?
2. Can restrictions be placed on that right?

Court’s Opinion in Himat Lal K. Shah v Commissioner of Police, Ahmedabad

Constitutional bench of five judges heard the case, Justice SM Sikri wrote majority judgement also of behalf of A.N. Ray, P. Jaganmohan, JJ. He observed that there is no nothing wrong in requiring permission to be taken before holding a public meeting.[7] It held that the right which flows from Article 19(1)(b) is not a right to hold a meeting at any place and time, this right can be regulated for the interest of all, so that all can enjoy their right.[8]

However, judges held that the impugned Rules confers Arbitrary powers on the officer authorized by the Commissioner of Police and therefore, it must be struck down, while Court said, it is open for the Commissioner of Police to frame proper rules that will not delegate arbitrary powers to officers.[9]

Justice K.K. Mathew in his concurring opinion describes that Freedom of Assembly is an essential part of a democracy and public meeting on open spaces and public streets has been regarded as the tradition of our normal life, framers of the constitution also knew that the public meeting or assembly were being held on public streets and public have to regard this as their right and privileges as a citizen.[10]

So, according to him, public streets are natural places for the dissemination of ideas and expression of opinions.[11] He also emphasized that the power of appropriate authority has the power to impose reasonable regulations in order to assure the safety and convenience of the commuters using the highway and it is not inconsistent with the fundamental right to assembly.[12]

Justice Mirza Hameedullah Beg’s concurring opinion observed that there is no separate right of the public meeting except the fundamental right and in any case, the public streets which are dedicated for passing and repassing cannot be used for a public meeting.[13]

Right to Protest and Right to Enjoy Public Places

“Democracy thrives on listening, arguing and even dissent”    – Pranab Mukherjee

The Constitution of India provides Article 19(1)(a) denotes freedom of speech and expression and Article 19(1)(b) denotes the right to assemble peacefully without arms, both this right gives citizen of India freedom of dissent in the form of peaceful protest against the government whenever they misuse their power.[14]

This right too comes with reasonable restrictions denoted in Articles 19(2)&(3) which point that for the interest of sovereignty and integrity of India or public orders, state can make law.[15] Right to Protest was a tool for the pre-independence India to get freedom from British Rule and Gandhi’s ideology of peaceful protest which comes in our constitution in independent India getting many challenges in the name of public order.

In this series of challenges, Himatlal case decides that the right to a meeting in public places is not absolute and taking prior permission from authority is no violation of that right.[16]

In the case of Ramlila Maidan Incident v. Home Secretary, Union of India & Ors. (2012), where the supreme court held that right to assembly and peaceful protest is fundamental and cannot be taken away by the arbitrary executive or legislative action, but the court shakes the foundation of the right by ascribing the proposition that the once the right to protest has been denied, the protester must obediently accept the denial or run the risk of contributory negligence to the police oppression.[17]

In the case of Mazdoor Kisan Shakti Sangathan v. Union of India court tried to balance the interests of local residents with those of protesters and held that each fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right.[18] It was in this respect, that in this case, an attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters.

Now, in the case of Amit Sahni v. Commissioner of police court held that protesters cannot protest in public places indefinitely and the designated places must be assured for their protest and in that places only they can assemble and protest by taking prior permission of the respective authority.[19]

Similarly, the court reiterated in farmer’s protest. The moot question is that the inconveniences the commuters suffer due to the protest and therefore giving protester’s designated or limited places by the government for their protest valid?

Just assume the place that is designated by the person against whom you are protesting, taking permission for time, place, numbers of people without any inconvenience to other, in that situation when everything is working well, why the government will decide that will go against their interests. The very purpose of the protest is to disrupt the normal socio-cultural-political system so that authorities will hear them.

Government-designated protest site restricts the attribute of protests and exhibits the government’s undemocratic nature. Justice K.K. Mathew in Himatlal case concurred that protesters have the right to use public places and authority can make reasonable regulations for the safety or convenience of commuters. The nature of protest is not always rooted in legality, but rather derives legitimacy from the rightness of the underlying cause and the extent of public support. In most cases, protesters are against laws and regulations perceived as unjust.

The case of Asha Ranjan v. State of Bihar and others comes with a test of larger public interest to balance two fundamental rights, in which the court held that the greater community interest or interest of the collective or social order would be the principle to recognize and accept the right of the one which has to be protected.[20]

According to the report published by the Article 19 international human rights organization, authorities must always make balance before restricting the right to protest for the protection of the rights of others and the balance should always fall in the favour of the right to protest, unless there is strong evidence to justify interference with that right.[21] A

lso, restrictions should not be invoked just because people are opposing or to limit political debate. Inconvenience or disruption alone should never reason for restricting protest.[22] Failure to respect and ensure the right of peaceful assembly is typically a marker of repression and consequences of disruption like economic or stopping traffic do not reduce the protection assemblies enjoy, this general comment was adopted by UN Human Rights Committee in 2020.[23]

The Global Expression Report points out that India is now a highly restricted place in the context of freedom of expression and protest, India’s GxR Score has been decreased to 21 in 2020 which was 59 in 2010.[24] Ultimately, the tool for the maintenance of democracy or liberty of the people in now in threat, which used by people of India in many times consider it pre-independence or post-independence, let’s take the example of the three Farm Acts which farmers across India protested as they were pro-businessman laws and the government has to remove those laws, it could not have happen if farmers doesn’t protest for their right.

Similarly, in UK people protested and government has declare climate emergency legislation, Gully Bujak who is an action planner with Extinction Rebellion in the UK believes that protest has to be disruptive in order to have an effect, said climate emergency would have not declared if we were on grass or pavement hovering flags, that happen because we made it impossible for the government to ignore us, by stopping traffic, slowing down the economy and making it disruptive that they had to engage with us and unfortunately that’s how the system works.[25]

If we take the shaheen bagh protest that runs for approximately 3 months but the government does not try to come to the table with them, for which support comes from various parts of the country and the global world.[26] Now, the Supreme court wants the people to protest in only designated places that are mostly away from the city which does not attract the media, people, and authorities, which makes protest meaningless.

Conclusion

Wherever the right to protest has been repressed, in that country democracy cannot be stable like in Pakistan, Myanmar, Hong Kong, and many more. The right to protest has been regarded as an essential part of democracy but it is only in the theory because this right has been narrowed down from its existence to doing in public places to now doing only at designated places in the name of inconvenience suffered by the local residents even if the protest is peaceful.

The Supreme court has to rethink before narrow downing this right while considering the history and the situation of the country where this right has been repressed.

Not only designated places but the designated system should be in place to handle or heard the voice of protesters like the Protesters Grievance Redressal Board so that protesters can approach them and they placed their claims in various instrumentalities of the democratic system, this way directionless protest will get a leader who will help protest to remain peaceful because most of time non-negotiation by authorities makes protest violent.[27]

[1] Constitution of India 1950, Art. 19(1)(b) & 19(3)

[2] Himat Lal K. Shah v. Commissioner of Police, Ahemdabad (1973) 1 SCC 227.

[3] Ibid [44]

[4] Ibid [14]

[5] Ibid [9]

[6] Ibid [11]-[12]-[13]

[7] Ibid [43]

[8] Ibid [35]

[9] Ibid [43]-[44]-[47]

[10] Ibid [63]-[64]-[65]

[11] Ibid (n 10)

[12] Ibid [67]

[13] Ibid [81]

[14] Constitution of India 1950, Art. 19(1)(a) & (b)

[15] Constitution of India 1950, Art. 19(2) & (3)

[16] Ibid (n 2)

[17] Ramlila Maidan Incident v. Home Secretary, Union of India & Ors. (2012) 5 SCC 1.

[18] Mazdoor Kisan Shakti Sangathan v. Union of India (2018) 17 SCC 324.

[19] Amit Sahni v. Commissioner of police (2020) 10 SCC 439.

[20] Asha Ranjan v. State of Bihar and others (2017) 4 SCC 397.

[21] The Right to Protest: Principles on the protection of human rights in protests (Article 19, 2016)

[22] ibid

[23] United Nations Human Rights Committee, ‘General comment No. 37 (2020) on the right of peaceful assembly’      (United Nations, 2020)

[24] The Global Expression Report (Article 19, 2021)

[25] Jo Glanville, ‘Why the right to protest matters’ (Article 19, 2021) < https://www.article19.org/resources/why-the-right-to-protest-matters/ > accessed on 6^th May 2022

[26] Ibid (n 19)

[27] D.K. Bandyopadhyay, Arvind P. Bhanu, ‘PROTEST NEEDS TO BE ADDRESSED BY SETTING UP A NEW MACHINERY’ (Amity Law School, ed.16, 2020)

This article is contributed by Mahipal Singh, a student of NLS Bangalore.