Protests vs 'public order': Prevention and policing, Pg12

Key Highlights:

• Recent protests in Delhi, demanding the resignation of Chief Election Commissioner Gyanesh Kumar, faced extensive restrictions including prohibitory orders, detentions, and transport disruptions.
• These measures, including the denotification of Jantar Mantar as a protest site, have reignited debate on the constitutional balance between the right to protest and public order.
• The Supreme Court questioned the broad transport restrictions, cautioning against disproportionate measures.
• Police cited past conduct during July 20 protests to justify preventive actions, while legal provisions like Section 168 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) support preventive policing.

Detailed Insights:

• Articles 19(1)(a) and 19(1)(b) of the Constitution guarantee freedom of speech and expression and the right to assemble peacefully.
• However, Articles 19(2) and 19(3) allow for reasonable restrictions on these rights, particularly in the interest of public order.
• The Supreme Court in Himat Lal K Shah vs Commissioner of Police (1973) affirmed the State's power to regulate assemblies on public streets, but not to prohibit them arbitrarily.
• In Mazdoor Kisan Shakti Sangathan vs Union of India (2018), the court rejected a blanket ban on protests at Jantar Mantar, advocating for a balanced regulatory mechanism.
• Preventive policing, backed by Section 168 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) (formerly Section 149 CrPC), allows police to prevent cognisable offences.
• The Supreme Court in Madhu Limaye vs Sub-Divisional Magistrate (1970) emphasized that extraordinary powers like Section 144 CrPC require urgency and gravity.
• The Anuradha Bhasin vs Union of India (2020) judgment stated that preventive orders must be proportionate and cannot suppress legitimate democratic expression.
• The Shaheen Bagh judgment clarified that the right to dissent does not permit indefinite occupation of public roads.
• The Supreme Court is examining alleged excesses by security personnel and protestor violence, as well as the use of blanket Section 163 orders.

Key Concepts Involved:

• Right to Protest: A fundamental right under Article 19(1)(a) and 19(1)(b), subject to reasonable restrictions.
• Public Order: A ground for imposing reasonable restrictions on fundamental rights, ensuring peace and safety in society.
• Preventive Policing: Actions taken by law enforcement to prevent anticipated crimes or public disturbances, supported by statutes like BNSS Section 168.
• Proportionality: A legal principle requiring that any restriction on rights must be appropriate, necessary, and not excessive in relation to the objective.