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Even the walls shout inquilab

Forces resisting public protest must first revisit the Constitution. The law enshrines dissent as much as its venue, writes Karan Lahiri.

india Updated: Jan 20, 2013 22:09 IST

With the police 'lathi-charging' protesters, and with the government deploying Section 144 of the Code of Criminal Procedure to restrict public assemblies, it is time again to think about the right to protest. This time, however, we may want to think about it differently.

Article 19(1)(a) & (b) of our Constitution protects the rights of citizens to speak freely and to assemble peaceably without arms. However, the subsequent portions of Article 19 permit the State to make laws that impose 'reasonable restrictions' on these rights for certain specified reasons, including the preservation of 'public order'. The question is this - how do we ensure that such restrictions are truly 'reasonable'?

One way, perhaps, would be to think of the solution in spatial terms. Article 19 mentions 'citizens' and 'the State', but it is also, in my view, about places. I believe that our shared political heritage protects certain physical spaces and makes them special, inasmuch as the government's power to restrict the ability of the people to speak as a collective is reduced within these spaces. To illustrate, the government may be justified in interfering if protesters picket in the corridors of North Block, or even in an ordinary municipal park in a residential area, but if they congregate in a place like Jantar Mantar which has been used for protests as a matter of historical practice, the place itself has a constitutional significance that limits the State's power to intervene, by making such State action inherently less 'reasonable'.

Judgements rendered by the Supreme Court seem to give traction to such an argument. In a case called Himatlal K Shah vs Commissioner of Police, Ahmedabad, the late Justice Mathew's concurring opinion emphasised the importance of public assemblies to democracy. In doing so, however, he stressed on our national tradition, born before independence, of holding meetings in open spaces and public streets, and on how, with the past practice of citizens acting as a gloss on the Constitution, this right to assemble in public spaces had become one of the privileges and immunities of citizenship. State entities may own these places, said he, but they are held by these entities for the public.

These concepts were carried forward in the Supreme Court's more recent judgement in 'In Re: Ramlila Maidan' Incident. This judgement, delivered last year, dealt with the widely televised happenings at Ramlila Maidan in June 2011, when the police chased away Baba Ramdev and his sleeping congregation. While I find portions of this judgement problematic, there are some elements of it that are both important and interesting. The first is that its title does not mention the names of the litigants (as is usually the case), but instead refers to incidents at a specific place. The second aspect of this case worth highlighting is how Dr Rajeev Dhavan (as amicus) gestured towards the historical significance of Ramlila Maidan, mentioning how it was an "accurate barometer of the country's political mood in 1960s and 1970s". The third important feature of this decision is how Justice Swatanter Kumar, at times, echoes Justice Mathew. Writing for the court, he mentions the fact that people have a "right to raise their voice against the decisions and actions of the government", denial of which requires the existence of 'exceptional circumstances'. He then goes on to characterise the MCD, which owns Ramlila Maidan, as a 'public trustee', entrusted with the land for the people.

The point is that we may, as a politically aware populace, need to think beyond merely our right to protest. It may, instead, be useful to think about and affirm how our Constitution does protect our political heritage - a heritage embracing not only how we dissent, but also where we gather to raise our voices.

Karan Lahiri is a lawyer and currently pursuing his LLM degree at Harvard Law School
The views expressed by the author are personal