In December, the Uttar Pradesh police was accused of brutally suppressing peaceful protests against the new Citizenship Amendment Act and the proposed National Register of Citizens. The police allegedly shot at protestors, entered homes to vandalise them and even tortured minors taken into custody.

Remarkably, only a month after these horrific events, protesters are back out on the streets of Uttar Pradesh. On Friday, groups of mostly women gathered at Lucknow’s clock tower to perform a sit-in protest against the CAA and NRC, which critics say could be used to disenfranchise Indian Muslims.

Yet, again the police reacted with prejudice, first seizing blankets and food carried by the protestors then inexplicably charging them under harsh sections such as rioting and using criminal force on a public servant.

Mass 144

How did the police justify charging peaceful protesters with rioting? According to one FIR that accessed, the trigger was Section 144 of the Criminal Procedure Code, which bans any public assembly of more than four people. The police had imposed it on Saturday – the day after the protest started – citing security ahead of Republic Day and the protests against the Citizenship Act.

The same night, when the police tried to remove the protestors, they resisted. This was then spun into charges such as rioting.

This is, incidentally, exactly how the violence in December unfolded. Just a day before massive protests broke out, the Uttar Pradesh police enforced an unprecedented state-wide Section 144. This automatically outlawed even peaceful protests. The police then used this legal fig leaf to assault protestors and book them under harsh charges.

Many of the police charges are weak and in several cases, the authorities were unable to produce evidence of acts like rioting in court, a analysis showed. But in many ways, proving the charges was never the aim of the Uttar Pradesh government: it was simply to crush the protests.

Police personnel shoot at protestors during a rally against the planned National Register of Citizens and the Citizenship Act in Khadara area of Lucknow on December 19. Credit: PTI

Muzzling democracy

As both the events in December and the FIR against the peaceful protestors at the Lucknow clock tower show, it is impossible to protest peacefully in Uttar Pradesh unless the state government wants you to.

Not only does this go against a basic understanding of what democracy is, it directly contravenes a fundamental right granted to all Indians by the Constitution. Article 19 (1) (b) reads, “All citizens shall have the right to assemble peaceably and without arms.”

Unfortunately, like a number of other fundamental rights granted in the Indian Constitution, this clashes head on with the aspects of the administrative apparatus that modern India chose to carry over from colonial times.

While the Constitution provides the fundamental right to assembly as a check on government excess – it also, via Section 144, paradoxically allows the government to regulate when that check can be exercised. “This rather contradictory approach is a refection of a colonial legacy and the unquestioning adoption of most of the provisions of the 1872 Code of Criminal Procedure by the contemporary Indian State,” writes legal scholar Maneka Guruswamy.

Like many clashes between the fundamental rights granted in 1950 by the Constitution and the earlier colonial apparatus, the latter has won out in the courts in case of the right to assembly. In 1970, for example, the Supreme Court in Madhu Limaye v. Sub Divisional Magistrate held that Section 144 was constitutional, reiterating its earlier judgment in 1961. Guruswamy has argued that the “freedom of assembly jurisprudence of the Supreme Court is legally and philosophically vague” given that it has “consistently upheld the constitutionality of section 144 CrPC, a colonial relic, but has crafted no principles that will be used to guide its exercise”.

Police beat protesters during a demonstration against the Citizenship Amendment Act in Lucknow on December 19. Credit: AFP

Article 19 in UP?

However, the courts have placed some limited restrictions on the use of Section 144. In the Madhu Limaye case, the Supreme Court held that the law was only to be used only if “the emergency must be sudden and the consequences sufficiently grave” and the ban on assembly is “able to prevent some harmful occurrences”. In the 2012 Ramlila Maidan case, the court held that the “perception of threat to public peace and tranquility should be real” for Section 144 to be used. The trigger cannot be “imaginary or a mere likely possibility”.

Further, in the January judgement related to Kashmir, the Supreme Court reiterated that the test of proportionality must apply to Section 144. This means that there should be a rational link between the imposition of Section 144 and the effect it intends to have. The court was clear that “the power under Section 144, Cr.P.C. cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights”.

Notably, Uttar Pradesh’s use of Section 144 violates every one of these conditions. The law is being used expressly by the state government to prevent any democratic expression of dissent against the ruling BJP and its citizenship policy.

Against this backdrop, its bears asking: does the fundamental right to assembly still apply to the biggest state of the Indian Union?