Why banning protests at Delhi’s Jantar Mantar harms the right to dissent and public accountability

For years, Jantar Mantar has been the permitted site for public protests in New Delhi. The space – a wide lane behind the monument – has been hosting daily gatherings of protestors as well as people who have been demonstrating there for months and sometimes even longer.

Last week, the National Green Tribunal said that the space could no longer be used for protests or public gatherings. People living close to the venue should not have to suffer noise pollution and unhygienic conditions, the tribunal said. Protestors camping at the site must instead be moved to Ramlila Maidan, a ground in central Delhi that is the authorised site for protests involving more than 5,000 people.

The tribunal’s order, if not challenged by the Delhi government, will effectively move public gatherings and protests even farther away from the people and institutions that protestors seek to influence. Jantar Mantar is just over 3 km from Raisina Hill, the seat of India’s government. Ramlila Maidan is about 6 km away.

A peaceful public protest is a civic activity intended to draw the attention of lawmakers, policymakers and the general public to critical issues of governance and to demand redress and accountability. The space where protest takes place is, therefore, crucial. It must facilitate direct interface with officials and political representatives; it must also be situated so that interested bystanders can be enlisted for the cause.

Not that Jantar Mantar was necessarily on the way to work for ministers and government officials. It was, in fact, designated as the protest space precisely so that government functionaries would not be inconvenienced by agitators, as had been the case in 1988, when Bharatiya Kisan Sangh leader Mahendra Singh Tikait organised a massive farmers’ rally. Thousands of farmers had occupied Boat Club, the manicured lawns adjoining India Gate, from where the grandly named Rajpath ascends towards Raisina Hill. Tikait’s action clearly did not go unnoticed: the Rajiv Gandhi government accepted the farmers’ charter of demands and only then did the “siege” end.

Human rights activist Ravi Nair remembers organising marches that started from Ramlila Maidan, wended their way through the outer circle of Connaught Place and ended at Parliament Street. Smaller rallies were allowed to go even further, stopping outside Parliament, where an opposition MP would actually come down, address the protestors and accept their memorandum.

Now, Section 144 of the Criminal Procedure Code pertaining to “unlawful assembly” is permanently imposed on Raisina Hill and “its surrounding localities and areas”. This is done through notifications issued by the Delhi Police prohibiting, without written permission, assembly of five or more persons; carrying of weapons, banners and placards; shouting of slogans, speeches, processions and demonstrations; picketing and dharnas.

Arbitrary restriction

Section 144 is intended to be invoked “in urgent cases of nuisance or apprehended danger”, that is, it envisages an “emergency” situation that is temporary. The police’s notifications address this by vaguely stating that “reports have been received indicating that such conditions now exist that unrestricted holding of public meetings, processions/demonstrations etc in the area are likely to cause obstruction to traffic, danger to human safety and disturbance of public tranquility.”

Further, no order under this section can remain in force for more than two months. The Delhi police gets around this by reissuing the notification every two months. This practice has not been challenged despite the Supreme Court ruling, in Acharya Jagdisharananda Avadhuta, that the scheme of Section 144 “does not contemplate repetitive orders and in case the situation so warrants steps have to be taken under other provisions of the law when individual disputes are raised. If repetitive orders are made it would clearly amount to abuse of the power conferred by section 144 of the Code”.

It is not known how many requests the Delhi Police actually get for written permission to organise protests in this high-security zone. But that there are no reports of protests in that area shows that either such requests are denied as a matter of course, or that people simply do not conceive of organising protests in that sanitised, seemingly inviolable space.

The exception was the December 22, 2012, protest against the gangrape and murder of a young Delhi woman, during which thousands of people assembled at the foot of Raisina Hill, refusing to be contained by Section 144 orders, barricades and closed metro rail stations. A rattled administration closeted itself in its offices while the police pushed back, as is customary, with force. The next day, the Justice JS Verma Committee was constituted to examine amendments to strengthen laws against sexual violence. The eventual outcome may have been less than ideal, with the government selectively implementing the committee’s recommendations and submitting to public calls for lowering the age of juvenile offenders. But it is notable that, again, it was a highly visible mass protest, which frog-marched the issue of violence against women right up to the doors of the powers-that-be that led to state action.

It also mattered that the demonstrators were mostly middle class, drawn from the colonies and neighbourhoods of Delhi. In a similar sized gathering of people with lesser privilege, the lathi charge may well have been more brutal, and police firing may not have been ruled out.

Hemmed in

In Mumbai, the designated space for protests is Azad Maidan, about 4 km from Mantralaya, the state secretariat. A corner within the Maidan was reportedly earmarked for “public speaking” after the Bombay High Court ordered the Maharashtra government to regulate protest rallies and dharnas. Those wishing to hold demonstrations must first seek permission, which is not always given, says the activist Sandhya Gokhale. The restriction of space is also problematic, she adds: “They put you in a ghetto so that you can’t reach out to people.”

There is no question of organising protests closer to government buildings, Gokhale says. In Mumbai’s Central Business District, a “permanent” Section 144 restriction is in place since the 1992-’93 communal violence. As in Delhi, the notification is reissued every 60 days. In the 1960s and 70s, says Nair, demonstrators could go all the way to Kala Ghoda. Today, smaller gatherings are allowed at Dadar, Churchgate and Chhatrapati Shivaji Terminus railway stations, says Gokhale, but that depends on what the protest is about. If the issue is deemed to be sensitive, protestors may not be allowed to gather for long.

The alternative? There isn’t one, Gokhale says, and even courts can’t be expected to grant relief. “We have to brazen it out,” she added.

Larger rallies have been organised, though. In 2015, a march against the killing of the rationalist Govind Pansare was taken out from Byculla to Azad Maidan. In August this year, a march by the Maratha Kranti Morcha reportedly saw between 600,000 and 900,000 take the same route. In these cases, the authorities presumably chose to let the demonstrations go ahead because of the numbers involved; refusing permission could have resulted in a law and order crisis.

Implicit right

International human rights law does not recognise a right to protest but it is implicit in Article 21 of the International Convention on Civil and Political Rights. It states:

“The right to peaceful assembly shall be recognised. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.”

The right to protest is also linked to the freedom of expression and the right to participate in the conduct of political affairs.

The United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association has affirmed that “states have a positive obligation under international human rights law not only to actively protect peaceful assemblies, but also to facilitate the exercise of the right to freedom of peaceful assembly”.

The gradual constriction of public spaces for the expression of dissent is troubling. Peaceful protests have often resulted in detention, arrest or the use of force, reflecting the state’s perception of all gatherings and protests as a nuisance, or worse, a threat to national security or public order. The list of people killed or injured in police firing in India is long, despite the existence of numerous standards and procedures for crowd control and norms, domestic and international, regarding the use of force. The mildest forms of dissent lead to police action; even small gatherings that take place without permission result in detention for a few hours, regardless of the nature of the protest.

Last week in Mumbai, the police detained 17 people holding a silent protest at Marine Drive against the murder of the journalist Gauri Lankesh. In Chennai, 50 people who had gathered at Marina Beach, also to protest Lankesh’s murder, were detained and allegedly roughed up when they went to garland a statue of Gandhi and raised slogans.

In a report to the UN General Assembly in 2016, former UN Special Rapporteur Maina Kiai stated:

“Assemblies are an equally legitimate use of public space as commercial activity or the movement of vehicles and pedestrian traffic. Any use of public space requires some measure of coordination to protect different interests, but there are many legitimate ways in which individuals may use public spaces.”

He warned “against the practice whereby authorities allow a demonstration to take place, but only in the outskirts of the city or in a specific square, where its impact will be muted”.

Freedom of peaceful assembly is a right, not a privilege. It is thus necessary to reclaim spaces that are not officially designated for public gatherings but are public – parks, mohallas, beaches, outside malls, Parliament, state secretariats and Raisina Hill – and, therefore, legitimate sites for civic engagement.