Assessing India’s Legal Framework on the Right to Peaceful Assembly (original) (raw)

PUBLISHED: DECEMBER 2021

The right to freedom of peaceful assembly is central to democracy. This report maps the Indian legal framework governing the right to freedom of assembly and the right to protest, and analyses how various laws and orders erode the full enjoyment of this constitutionally protected right. It critically examines Indian constitutional law and relevant domestic laws, and undertakes a comparative analysis of the Indian experience against the backdrop of international standards and good regulatory practices on the freedom of assembly. Recommendations are proposed to bring the exercise of the right to freedom of assembly in conformity with the guarantee envisaged under the Indian constitution and international law.

Report Overview

The report explores several issues surrounding the Indian government’s approach to regulating assembly, including:

Despite constitutional protections at the national level, the devolution of specific policing powers and law-making to the states has created a web of regulations that dilute protections for free assembly.
A punitive, security-focused approach has been increasingly deployed, amidst a growing trend of demonizing and criminalizing public protests, including the vilification of assembly organizers.
Criminal law is often misused to deem peaceful assemblies illegal and unlawful, either through using the absence of official ‘permission,’ or using stray incidents of violence to initiate criminal proceedings against the leaders and organizers.
An increasingly common requirement for prior permission for assembly, which is in conflict with international standards that only speak of prior notification systems.
Local law enforcement agencies have often failed to protect protesters, and have encouraged or stood by while provocateurs or counter-protesters have used violent means to attack peaceful protesters.
Legitimate justifications for restricting assembly have been abused by Indian authorities, who have used public health or traffic considerations as excuses to shut down or prevent assemblies, rather than going to the lengths required under international law to accommodate protests and gatherings.
Protesters have been penalized using the full range of criminal law and saddled with prohibitory bail orders, movement limitations, and even bills and liability for alleged property destruction – all measures that have a chilling effect on peaceful protest.
Independent journalists reporting on public assemblies are being targeted through arrests and criminal prosecutions, being charged with circulating fake news, sedition, and other grave offences; no recognition is accorded to observers or monitors of assemblies, further creating a void in accountability mechanisms against State excesses.
As with many countries during the COVID-19 pandemic, and consistent with a global trend of democratic backsliding, the Indian state used the justification of public health to further curtail the freedom of assembly, expanding the use of prohibitory orders under the Criminal Procedure Code, as well as invoking provisions of the colonial Epidemic Diseases Act, 1897 and The Disaster Management Act, 2005, to prohibit public assemblies and punish violations.

In short, despite some protective laws and jurisprudence around assembly, there is a disturbing trend of growing intolerance towards democratic processes and social movements. Oftentimes, inconvenience to everyday life caused by peaceful public protests receives greater attention than the protection and promotion of rights or the concerns of disadvantaged and marginalized groups.

The report offers a detailed analysis of the legal framework, standards, and realities around assembly in India, and proposes recommendations for the Government, law enforcement agencies, and the National and State Human Rights Commissions. The recommendations are tailored to bring the substantive and practical framework governing the freedom of assembly in conformity with both international standards and the protections enshrined in the Indian Constitution:

For the Government of India and State Governments:

Carry out a comprehensive review of specific public order and Criminal Code provisions and amend the law to ensure that restrictions on the right to freedom of assembly are in compliance with the Constitution of India.
Further direct the Law Commission of India to review all relevant central and state laws, as well as Standing Orders issued by the police and administrative authorities, that restrict the right to freedom of assembly, and recommend legal reforms to the government.
Repeal or modify Rules and Administrative Orders to ensure that the existing ‘permit regime’ is replaced by a ‘notification regime’ for the holding of public meetings by assemblies.
Ensure that absence of ‘prior permission’ for an assembly does not result in penal sanctions for members of the public assembly.
Ensure members of peaceful assemblies are not burdened with criminal prosecution, especially under anti-terror and sedition laws, merely for nonviolent participation in assemblies.
Direct that, in the absence of a data protection law, standard operating procedures be prepared and implemented to ensure the right to privacy is protected when public assemblies are filmed or captured by police personnel and stored on State servers.
Provide institutional recognition to independent observers and monitors for public assemblies to ensure that rights are respected and there is no abuse of power.
Recognize that the right to freedom of assembly extends to digital platforms, and commit to ensuring that arbitrary internet shutdowns will not be ordered in areas where public assemblies have formed or protests are being carried out.
Recognize that the State has an added responsibility to protect, facilitate, and enable assemblies organized by marginalized and oppressed groups, and take steps to protect assembly participants in case of majoritarian counter assemblies.
Ensure that public assemblies are not routinely dispersed under the guise of public convenience.
Ensure that designated spaces for protests are in prominent areas of cities where the protest is visible to its target audience.
Ensure that India’s commitment to international treaties and conventions on freedom of assembly is rigorously implemented and reflected in its domestic laws and policy.

For Law Enforcement and Security Personnel:

Carry out training and orientation of police and security personnel on their role as facilitators of the right to freedom of assembly, sensitizing police on their duty to enable and protect non-violent public assemblies, as opposed to ‘controlling’ or ‘managing’ them.
Ensure police tactics that deal with public assemblies emphasize de-escalation based on communication.
Train police personnel on the use of minimal force as a ‘last resort,’ not as the default response to assemblies.
Establish internal accountability mechanisms to check arbitrary, disproportionate, and excessive use of force by police personnel while dispersing public assemblies.

For the National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRC):

Nominate observers to monitor and document public assemblies if a request is made by the organizer of the said assembly or protest, especially when there is a threat of disruptive counter-assemblies.
Investigate and produce reports on cases where public assemblies are disrupted by provocateurs or State agents.
Lay down guidelines for police and administrative authorities to follow to ensure that the freedom of assembly is respected, protected, and promoted.

You can read the full report and findings here.