Why there is no legal basis for India’s crackdown on pro-Palestine protests

On the morning of October 12, student-activist Aalam Nawaz, a resident of Hospet in Karnataka, received a call summoning him to the local police station.

He was detained at the police station from 11 am till 7 pm, before being released on bail.

His crime? Putting up a WhatsApp status message containing a manqabat – an Islamic devotional poem – with images depicting violence in Palestine. It was meant to signify support for Palestinians as the Israeli army attacks the Gaza strip.

“When I posted the status, I did not think even once that I would get in trouble,” Nawaz told Scroll. “Since then I have stopped using social media on the advice of my elders.”

The police has reportedly invoked legal provisions against him that are aimed at individuals committing offences that may disturb communal harmony or inflame tensions between social groups.

Nawaz is one of several individuals across India who have faced police action for expressing solidarity with Palestinians, either through social media posts or protests.

The police have cited the maintenance of law and order and communal harmony as grounds for the crackdown against pro-Palestine messages and protests.

However, legal experts that Scroll spoke to have criticised this justification. They say that there is no legal basis for prohibiting peaceful pro-Palestine protests.

Worldwide protests

Israel declared war on Gaza after an attack by Palestinian militant group Hamas on October 7 resulted in the deaths of around 1,400 Israelis. Incessant air strikes and a ground invasion by Israel since then have killed over 8,500 people in Gaza.

The war has generated protests across the world, with many supporting Palestinians. Large demonstrations against Israel have been seen in cities such as Colombo, Barcelona and Mexico City. Kerala has also seen large turnouts in support of the Palestinian cause.

Expressing support for Palestine is also in consonance with India’s longstanding position on the Israel-Palestine conflict, that was recently reiterated by the Modi government: that “[t] here must be resumption of direct negotiations towards establishing a sovereign, independent and viable state of Palestine living within secure and recognised borders side by side at peace with Israel”.

Police crackdowns on protests

In spite of this, public demonstrations and civil protests protesting against civilian deaths in Gaza have been prohibited in several parts of the country.

For instance, in the National Capital Territory of Delhi, permission for a pro-Palestine protest on October 16 by the All India Students Association, a left-wing student organisation, at Jantar Mantar, the designated site for civil protests in Delhi, was denied by the Delhi Police “in view of prevailing situation and in order to maintain security/law & order arrangements”. No legal provision was cited by the Delhi Police in its order.

When the All India Students Association went ahead with a peaceful demonstration at Jantar Mantar on October 16, the protestors suffered a brutal crackdown from the Delhi Police.

According to Manik Gupta, president of the All India Students’ Association’s Delhi University unit, who was present at the protest, the Delhi Police beat up and detained close to 200 protestors and moved them in two buses to a police station on the outskirts of Delhi. They were released only in the evening.

Gupta told Scroll that they were not provided any written order or legal justification by the police for their detention.

Similar prohibitions against pro-Palestine messaging and protestors have taken place in Kolkata and Bengaluru and in parts of Uttar Pradesh and Kashmir.

Pro-Palestine protests not illegal

Legal experts said that there is nothing in Indian law that bars peaceful pro-Palestine protests.

Naveed Mehmood Ahmad, senior resident fellow with the Criminal Justice Team at the legal policy think-tank Vidhi said that the charging of protestors with offences dealing with promoting enmity or participating in an unlawful assembly is strange. “These offences require an intention to either use criminal force or an intention to incite violence,” he said. “There is nothing to indicate that these protests fulfilled this criterion.”

He added: “A peaceful protest against human rights violations in another part of the world or an expression of solidarity cannot even remotely be associated with an act of creating disharmony between two groups living in India.”

According to Ahmad, Indian law is clear on this: there must be active incitement of violence to invoke offences dealing with communal provocation and the mere expression of opinions or ideas cannot attract these provisions.

Delhi-based senior advocate Mohan Katarki agreed. “Anyone can speak or express anything in public as long as it doesn’t incite violence,” he said. “Public demonstrations may only be barred if they threaten law and order.”

Senior advocate and jurist G Mohan Gopal said that the law requires that the act constituting the provocation must itself be illegal “There is protection of lawful acts of protests, which cannot form the basis of prosecution,” he said.

He added: “Cracking down on lawful protests is unconstitutional and illegal.”

Driven by islamophobia

The criminalisation of pro-Palestine protests does not bode well for the health of democracy in India, experts told Scroll.

“This is not the first time these provisions have been invoked in such an arbitrary manner,” Ahmad said. “That is perhaps why courts have been clear that these provisions cannot be used to quell free speech expression.”

Katarki did not mince his words. “These police crackdowns are an intimidation tactic,” he said. “These are high-handed acts to deter people from protesting.”

Gopal said, “What is driving this crackdown is the Islamophobia which leads people into seeing what is happening in Gaza as a legitimate crackdown on terrorism rather than as a military action against innocent civilians that is prohibited by international law.”

Katarki asked, “Pro-Palestine protests are happening across the world, so why can’t Indians hold such protests?”

With inputs from Zafar Aafaq.