Citizenship Amendment Act: Imposition of Section 144 to prevent democratic protests smacks of colonialism; shows inability to handle dissent

As the protests against the controversial Citizenship Amendment Act continue to gain momentum the government had resorted to coercive measures like imposition of Section 144 in different cities across India. As a precautionary measure, the Bengaluru City Police has imposed Section 144 of IPC in the city from 19 December till 21 December. Section 144 prohibits gatherings of more than four persons. The step has been taken in an anticipation of a series of protests, dharnas and marches planned by various students groups and organisations. The steps taken by police send a very wrong signal as the protest against CAA are dominantly organised students across the country. Any preventive measure adopted by the government to stop students’ protest is the suppression of voices which go against the establishment. [caption id=“attachment_7793031” align=“alignleft” width=“380”]  Students protests against Citizenship Amendment Act (have found display placards and raise slogans during a protest against the Citizenship Amendment Act and police excesses on the students demonstrating over it, in Mumbai. PTI[/caption] It is not the first time where the government is using the law to stifle the dissent registered by different groups on several issues. History is replete with examples where governments have used the instrument of law to take on dissenters. The government uses draconian laws such as the sedition provisions of the penal code, the criminal defamation law, and laws dealing with hate speech to silence dissent. These laws are vaguely worded, overly broad, and prone to misuse, and have been repeatedly used for political purposes against critics at the national and state level. The problem in India is not that the Constitution does not guarantee free speech, but that it is easy to silence free speech because of a combination of overbroad laws, an inefficient criminal justice system, and the aforementioned lack of jurisprudential consistency. India’s legal system is infamous for being clogged and overwhelmed, leading to long and expensive delays that can discourage even the innocent from fighting for their right to free speech. Section 144: Dangerous weapon in the armor The purpose of Section 144 is to issue an order absolute at once in urgent cases of nuisance or apprehended danger. The gist of action under Section 144 is the urgency of the situation; its efficacy is the likelihood of being able to prevent some harmful occurrences. In Radhe Das v Jairam Mahto the Supreme Court held that Section 144 can only be invoked in order to prevent a disturbance of the public tranquillity or a riot or an affray. Further in cases Manzur Hasan v Muhammad Zaman and Shaik Piru Bux v Kalandi Pati it was stressed that the section must only be imposed keeping in mind the urgency of the situation and the power is to be used for maintaining public peace and tranquillity. If there is neither an urgency calling for the application of a speedy remedy nor apprehension of danger to human life, health or safety, etc., the magistrate cannot issue an order under this section. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave without it the exercise of power would be totally futile.

Any restrictions must not be opposed to cardinal principles of the right to life, liberty and freedom. Article 19(a) and 19(b) of the Constitution of India clearly grants the right to freedom of speech and expression and right to assemble peaceably without arms. However, whenever authorities sense an opinion building up against them they take refuge behind Section 144, a legacy of British rule. Colonial rulers introduced the rule in 1861, a few years after the first war of independence to keep the rebels in check. No more than five persons could assemble on Indian streets. However, even after 150 years of its formulation and more than 60 years of independence, we are still being treated as rabble-rousers, up against our own country. Today, 158 years later, the echoes of colonialism reflect in our realities as the section is little changed. The right to protest peacefully for a just cause is equated with conspiracy to destabilise the government. Authorities decide to suppress public movements instead of initiating dialogue with the protesters. In such a scenario, nobody can help but mourn the death of democracy.

In the present case, the line differentiating peaceful protest and disturbance of public tranquillity has been overlooked by officials imposing Section 144. The students of different universities are peacefully protesting and registering their dissent against CAA. The imposition in such a scenario is extremely arbitrary and should only be imposed in exceptional circumstances. In Mazdoor Kisan Shakti Sangathan v Union of India and Anr., the Supreme Court held that it [the order to impose section 144] was not unconstitutional but recognised the right to protest and asked the government and police to frame guidelines. In our country which cherishes the freedom struggle against colonialism and tenacious revolutionary spirit of freedom fighters the attempt to suppress the protests and dissent hits at those very basic ideals. A democracy without a dissenter in it is impossible. Free men, in the exercise of free thought, will give vent in free speech. No matter how abhorrent the thought, or its manner of expression, a mature democracy will tolerate it, and even encourage its publication.