Freedom of speech the ‘bulwark’ of democracy: Why the Andhra HC struck down order seeking to regulate public assemblies, processions

Additionally, the court said that the freedom struggle is replete with examples of processions, dharnas, and satyagrahas conducted on the roads that led to India’s “tryst with destiny” on August 15, 1947. Adding that even the political history of contemporary Andhra Pradesh has witnessed many “processions, padayatras, assemblies, etc.” conducted on its public roads and highways, the court struck down the GO dated January 2, regulating the same.

What is the government order and why was it issued?

The basis of the challenge in the present case titled ‘Kaka Ramakrishna vs. The State of Andhra Pradesh’ was GO dated January 2, by which the Andhra Pradesh government sought to regulate public meetings or “assembly on roads, roadsides and margins”. The directions under this order were issued under relevant provisions of the Police Act, 1861.

The Andhra Pradesh government contended before the court that in light of certain fatal accidents that occurred in the recent past, involving loss of life, etc., in a stampede, it had decided to “regulate” the conduct of meetings without imposing a blanket ban on the same. It was also submitted that “roads are made for smooth movement of vehicular traffic and for transportation” and therefore if there is a hindrance to the same by holding meetings, the state can definitely impose reasonable restrictions.

The state government relied on Sections 30, 30A, and 31 of the Police Act, 1861, to issue directions under the GO. While Section 30 relates to the regulation of public assemblies and processions and licensing of the same, Section 30-A allows the magistrate, superintendent, or “any other officer” to stop the procession and order dispersal of the assembly if there is a violation of the licence conditions. Meanwhile, Section 31 relates to the police’s duty to keep order on “public roads, public streets, thoroughfares, ghats, and landing places”, and “other places of public resort”, along with the prevention of obstruction during assemblies and processions on such roads, streets, or near places of worship.

However, the court said that a “plain language interpretation” of Section 30 clarifies that the Police Act only gives authorities the power to “regulate” the conduct of assemblies, processions, etc., on public roads or thoroughfares.

Further, if the officer concerned thinks that the assembly may cause a breach of peace, he can ask the organisers to apply for a licence and prescribe the conditions under which the meeting or procession can be held, the court said. However, if the officer is of the opinion that there is no likelihood of a breach of peace, he cannot insist on a licence or permission being obtained. “The requirement of obtaining a license is to be preceded by the formation of an opinion of the officer that there may be a breach of peace, etc.,” the court said.

Adding that the power given to the police or magistrate is “only to regulate the conduct of assemblies, processions, etc., more so when they are likely to obstruct /block the roads”, the Court said that the right to assemble or protest peacefully in streets, public places, thoroughfares, etc. cannot be restricted totally by virtue of these sections of law.”

What did the Andhra Pradesh HC hold?

In its order dated May 12, the Court noted that the net effect of the contents of the January 12 GO was to impose a ban on all meetings on public highways, state highways, municipal and panchayat roads, etc. Striking down the GO, the court firmly opined that the “G.O. does not stand the test of law” and left it open to the state to frame proper guidelines in the future “keeping in view the law on the subject”.

In its ruling, the court reasoned that the fact that an accident or incident occurred at a particular place cannot be used as an “objective” or “cause” to curtail the right to assemble, to take out processions, etc., on all other roads. Instead, the cause of such incidents should be studied fully, and then safeguards or guidelines can be issued to prevent repetition, the court said. Stating that the “cure suggested in the G.O.” will impose a restriction on the individual and his constitutional freedom, the court said that such a restriction on the right of a citizen or a political party to assemble and hold meetings is unreasonable.

What did the court say about the right to assembly?

In its order striking down the GO, the court held that the “right to assemble, to protest peacefully, and to express one’s opinion freely” is too precious a freedom to be taken away by an “ipse dixit” (unproven assertion) given by the officer of the state. Stating that freedom of speech is the “bulwark” of democracy and is regarded as the first in the hierarchy of liberties, the court reiterated that it is too precious a freedom to be left to anyone’s unfettered discretion. Adding that the power conferred by the G.O. is “arbitrary, excessive, and also fails on the test of proportionality,” the court deemed the same to be an unreasonable restriction.

The Court also said that the objective of the state to prevent loss of life could have been a reasonable one but the directions given in the GO ultimately conferred “arbitrary power” on the officer in relation to a fundamental right under Part 3 of the Constitution. Thus, the court held that “Any G.O. or executive order which takes away the right of a political party, a citizen, or a group of people to assemble peacefully, to protest peacefully, etc., has to be viewed strictly. This is a right, which is conferred on the citizens by the Constitution.”

Building on this, the court said that such a right can only be subject to a ‘reasonable restriction’ while placing reliance on the top court’s 2018 decision in ‘Mazdoor Kisan Shakti Sangathan v Union of India and Another’, which laid down guidelines for peaceful assembly.

What were the guidelines laid down in the 2018 SC ruling?

In ‘Mazdoor Kisan Shakti Sangathan v Union of India,‘ a PIL was filed before the Supreme Court challenging the repeated imposition of police orders under Section 144 CrPC, through which a ban was imposed in Delhi prohibiting assembly and dharnas without written permission in areas such as Parliament House, North and South Block, Central Vista Lawns, and its surrounding localities and areas.

The court laid down guidelines for regulating such protests and demonstrations while adding that the fundamental right to peaceful assembly under Article 19(1)(b) of the Constitution of India can be reasonably restricted. The guidelines included regulating the intended number of participants in such demonstrations. It also prescribed the minimum distance from the Parliament House, North and South Blocks, SC, and the residences of dignitaries within which no demonstrations were allowed; imposed restrictions on certain routes where the PM, Central Ministers, and Judges pass through; and said that demonstrations would not be allowed when foreign dignitaries were visiting a place or route.

The court also disallowed demonstrators from carrying firearms, lathis, spears, swords, etc.