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Every democracy, sooner or later, confronts the same difficult situation: A crowd on a public road, a police battalion, and a vehicle at the kerb. The mass detention of opposition leaders, students and other demonstrators in the ongoing protests in Delhi directed at the resignation of the Chief Election Commissioner, Gyanesh Kumar, has brought that scene into Indian lives now. We do not weigh the protestors’ grievance, nor the necessity pleaded by the authorities. We ask the prior question: “What does the Constitution say about the street and about the detention cells?
Peaceful assembly is a settled commitment of constitutional democracies, but like other rights, it is never an absolute right. The First Amendment to the US Constitution protects the right to “peaceably assemble”. American courts permit reasonable regulation of time, place, and manner, yet since Brandenburg vs Ohio, they punish advocacy only when it is directed at, and likely to produce, imminent lawless action. Article 8 of the German Basic Law protects assembly “peacefully and without arms”. In the Brokdorf decision (1985), Germany’s Federal Constitutional Court treated demonstrations as integral to democratic order and required that restrictions be proportionate, with outright bans a “last resort”. Our Supreme Court, too, on October 9, clarified that only regulation, not prohibition, is permissible. Section 17 of the South African Constitution protects the right to demonstrate and picket “peacefully and unarmed”, and in Garvis (2012), the Constitutional Court tied the liability of organisers to what they could reasonably have prevented. Under Article 11 of the European Convention on Human Rights, 1950, as applied in DPP vs Ziegler (2021) by the UK Supreme Court, even disruptive protest demands a proportionality assessment.
The common thread is simple: Protest is presumptively protected; peacefulness is the condition of that protection.
The framers of India’s Constitution confronted the same tension, and many of them had been detained without trial themselves. Draft Article 15A, which became Article 22, was debated in September 1949. H V Kamath and Pandit Thakur Bhargava, among others, warned that a Constitution should not authorise detention on mere executive satisfaction. B R Ambedkar’s answer was that a young state facing the violence of Partition could not be denied a power of preventive detention, but that the power should be hedged. The Assembly settled on safeguards: Grounds must be communicated, and detention beyond three months requires an Advisory Board’s approval. Preventive detention entered the Constitution as an acknowledged exception, not as an ordinary instrument of governance. Unfortunately, the 44th constitutional amendment of 1978 providing additional safeguards has not yet been notified.
The Supreme Court has since policed that exception. In Ram Manohar Lohia vs State of Bihar (1960), it held that even the detention on the call not to pay irrigation rates was illegal. In Ram Manohar Lohia (1966), the SC distinguished between “law and order”, “public order” and “security of the State” as three concentric circles, so that not every disturbance of peace justifies drastic measures. Only an aggravated situation of law and order can be termed as public order. The peaceful Delhi protests are at best a question of maintaining law and order. The way the police have treated MPs, lawyers and journalists despite the SC’s directions cannot be justified in the name of public order.
In Himat Lal K Shah (1973), the Court held the right to assemble peaceably to be fundamental yet regulable, but not subject to an official’s arbitrary refusal. Ramlila Maidan Incident, In re (2012) affirmed that peaceful protest cannot be extinguished by arbitrary executive action.
Justice D Y Chandrachud’s opinion in Arnab Goswami (2020) reminded us that even a day’s deprivation of liberty is a grave matter, while Justice H R Khanna’s dissent in ADM Jabalpur (1976) remains the standing answer to any suggestion that liberty rests on executive grace.
Ambedkar’s concluding speech to the Assembly on November 25, 1949, is salient in this regard. Where constitutional methods are open for achieving social and economic objectives, he said, there is no justification for unconstitutional ones, which he called the “grammar of anarchy”. He counted civil disobedience, non-cooperation and satyagraha among them. The same speech warned against hero-worship and against laying one’s liberties at the feet of even a great man. Read together, the two warnings impose reciprocal duties: Citizens must keep dissent peaceful and lawful, and the state must keep the constitutional avenues of dissent genuinely open.
In the light of this jurisprudence, three questions follow: Was the assembly peaceful? Was the apprehension of disorder specific and imminent rather than vague and general? And was the police response proportionate, with custody limited in duration, grounds communicated, and production before a magistrate within 24 hours as Article 22(1) and (2) require? Unlawful detention, even for an hour, is deprivation of one’s liberty. This right cannot be restricted to just one Arnab Goswami.
A democratic state shows its strength in tolerating the dissent it hears, and a democratic citizenry in keeping that dissent peaceful. Our Constitution asks both to remember that order and liberty are not rivals but co-tenants of one republic, and that each is safest when the other is respected.
Mustafa is a constitutional Law scholar, and Giri is a scholar at Chanakya National Law University, Patna. Views are personal
