A Lawyer's Guide To Sustaining Protests

03 Mar 2020 8 min read  Share

'When the legislature, executive and judiciary view fundamental rights as a nuisance, defy them. When they strike back, stay firm' and other survival strategies that came handy when the police used an obscure 132-year-old law to stop CAA protestors in Chennai.

Protests against the Citizenship (Amendment) Act in Chennai/SWAROOP MAMI

Chennai: In the first protest against the Citizenship (Amendment) Act (CAA) that I attended at Valluvar Kottam in Chennai, a woman roared into the microphone, “If Hindi is the only language you know, then we Tamilians will learn it to make you understand.” The crowd thundered in approval and broke into the now ubiquitous azaadi (freedom) chant.

The protest was like a thiruvizha – people sang and chanted slogans, there were drums playing, hawkers selling tea, sukku kaapi (sugary concoction of dry ginger and milk) and Tamil translations of Marx, Engels, Gorky and Neruda. I caught up with old friends and made new ones. The next day, the police registered a first information report (FIR) against 600 people, 35 named and 565 “unknown”, for protesting without permission under section 41 of the Madras City Police Act, 1888.

In 11 years of being a lawyer in Madras, I had never heard of this law.

A few days later I got a WhatsApp forward on an anti-CAA group advertising a kolam (rangoli) protest at 7 am on 29 December, 2019, a Sunday. Kolams are patterns and designs drawn on the ground using rice flour. They are traditionally drawn by south Indian women each morning using symmetric dots and lines that either connect these dots or curve around them. The kolam protest wanted to use this traditionally south Indian art form to show dissent against the CAA and National Register of Citizens (NRC). It was a brilliant, subversive idea, but when the alarm rang on that Sunday morning, I decided to save democracy another time. Only five protestors showed up.

At about 7.45 am, still groggy, I got a call from an unknown number. The woman at the other end was frantic, “Sir, the police have arrested kolam protestors!”I left home immediately and was about halfway to the community hall where they were detained, when a fellow-lawyer called me, “They’ve arrested lawyers who had gone to release protestors.”

Until this point, I had only attended protests. Now, for the first time, I was there as a lawyer. The officers at J-S Police Station in Sastri Nagar refused to let me inside to meet my clients. They insisted that all persons arrested had gotten legal representation; a lie, since the lawyers too had been detained.

The inspector told me that even the lawyers had been drawing kolams on the road when they were picked up, which turned out to be another lie. The officer said he had video evidence to show me that the protestors had blocked traffic (five people at 7 am on a Sunday morning on the sidewalks) and that protestors had unlawfully restrained a nonagenarian (the final lie; they had never seen him). He finally told me that they did not have permission for a protest under section 41 of the Madras City Police Act, 1888.

The Madras Police Act: Vague But No Permission Needed For Protest

After the protestors were released, I went back home and finally read this Act. The Act sets out the framework under which the police in the city operate, including a vague hierarchy of officers and their powers and duties. It refers to things as outdated as “common gaming houses”, “infirmary for animals”, “driving elephant or camel”, “letting loose horses or ferocious dogs”, “wantonly frightening horse” and “beating tom-tom”.

A colonial government, in order to control anti-Governmental activities, also put in place section 41 to regulate “meetings”, “processions” and “assemblies”. But even this section 41 does not require “permission” for a protest. It only requires prior intimation to the police for processions, not meetings and assemblies. The police have the powers to regulate the routes that processions can take, and the use of loudspeakers. Hence, ordinarily, the police are supposed to react to meetings and assemblies as they happen.

The commissioner can, under section 41(2), in exceptional cases, pass an emergency-like order banning all assembly in the city to secure “public peace” and “public security”. Only then does every gathering (including private ticketed ones) require permission.

C.N. Annadurai (who became Tamil Nadu’s first chief minister in 1969) challenged this colonial-era law in 1956 as violative of fundamental freedoms under Article 19. The Madras High Court held, relying on similar laws in Bombay and Cochin, that a prohibitory order under section 41(2) can be in place for a maximum of 15 days. This 15-day limit was then incorporated in the Act.

Protestors were detained again in another community hall about a week later, and I was there, yet again, as a lawyer. But this time we were more organised. We informed police very clearly that we were lawyers (we were even dressed in white and black), and that our bar associations would “take action” if they tried to detain us.

Scaring The Police Into Good Behaviour

Nothing like the threat of a bar association to scare police into good behaviour. We also had some kind of release plan in mind — two lawyers would go inside the detention hall and badger the police with questions on procedural violations, while others would gather a large crowd outside the hall to sloganeer.

I spoke to Sivakumar, Inspector of F-3 Police Station, about section 41 and he confirmed to me that a prohibitory order was in place. I asked him for a copy of the order. He refused to share it with me, “It’s an internal order of the department,” he said. I tried reasoning with him that an order of this nature cannot be confidential, but he refused to budge.

Our release strategies, on the other hand, worked. Protestors were released.

The next day, more than 100 protestors were rounded up at Valluvar Kottam and thrown into buses. This time, like James Bond, I followed the live location of the buses on my phone’s GPS to reach a detention hall in a school. The protestors who were detained were now sloganeering in Hindi and singing Hum Dekhenge.

Every Law Quoted By The Police Did Not Apply

Our voice was probably being heard in Delhi because one of the policemen, sympathetic to us, told me that the detentions were only because there was pressure from the Intelligence Bureau. I did not hear a single credible allegation against any of the protestors in any of the detentions. Every section of the law quoted by the police, every preventive detention provision, they relied on did not apply to this case.

Section 143 of the Indian Penal Code, 1860—punishment for unlawful assembly—was one allegation. But section 141, which defines “unlawful assembly” requires the accused to use “criminal force” against public officers or resist the execution of any law (not merely protest against it).

Another offence quoted was section 147 of the IPC, for “rioting”, which again applies only when “force or violence” is used by an “unlawful assembly”. Then, the police said that it was a preventive detention under section 151 of the Criminal Procedure Code, 1973. This section applies only when the persons detained were about to commit a “cognisable offence”.

Again, when I asked the police what cognisable offence protestors were likely to commit, they had no answer. One officer cited section 353 of the IPC as the “cognisable offence” - using “criminal force” to prevent a public servant from performing his duty. When we pointed out that protestors never prevented anyone from performing their duty, the police said, “We will file an FIR. You fight it in the courts.”

Police Played A Detain-And-Release Game

It was clear from the grimace on the officers’ faces that even they knew they had no case. They were just playing a detain-and-release game with protestors in the hope that the protests would abate.

After some back-and-forth negotiations, many protest permission rejections and detentions, Assistant Commissioner of Police (ACP) S Muthuvel Pandi showed one of us the order under section 41, hiding his phone from the rest of us with his palm as if he were revealing nuclear codes. The protestor who saw it confirmed that it didn’t even mention the words “public peace” and “public safety”.

“Such orders have been in place for at least 10 years now. The commissioner passes a fresh order every 15 days,” the ACP said. Police officers also told us off the record that the Chief Minister’s Office had given them oral instructions to not grant permission to anti-CAA protests. They advised us to apply for protests as a meeting on “Merits and Demerits of CAA”.

When the next prohibitory order was passed, 15 days later, we lobbied with Deputy Commissioner of Police G Dharmarajan, who said he was a Jawaharlal Nehru Univerity alumnus, and were able to get our hands on the order. The Commissioner listed various protests “proposed” to be held in the city, including stray workers protesting for increase of wages and allotment of homes and one that involved a solitary man fasting for half a day. He then concluded that it was necessary, therefore, to ban all gatherings in the city since they “obstruct free flow of traffic, [cause] inconvenience to the movement of general public/VIPs and disrupt law and order”.

As a lawyer, my first instinct was to challenge this order and its repeated promulgation. The Karnataka High Court had on 20 December, 2019, passed an interim order casting doubt on the imposition of section 144 in Bangalore. On February 13, 2020, it ruled against the use of section 144 in Bangalore.

The Supreme Court judgment on the Kashmir lockdown, in Anuradha Bhasin v Union of India, on 10 January, 2020 had given us precedent to show that the police action was arbitrary and violated fundamental rights. We filed a petition for a protestor dubbed as “Pakistani agent” by the police.

The High Court Sides With The Police

My enthusiasm for the courts dimmed when during the hearing on 28 January, 2020, Justice P. Rajamanickam of the Madras High Court identified himself with the police to the extent that he remarked, “We have to provide you protection, and we need this prohibition to help you!” A little later, he asked, “Are you relying on the law or the constitution? You can’t rely on both.”

A week later, a group of lawyers and retired judges observed Martyrs Day inside the High Court campus. We sang songs, spoke about Gandhi and Hindu-Muslim unity, and walked around the High Court silently with flags and placards with words from the Preamble.

The police wrote to the Chief Justice A P Sahi about this “security” issue. In court, on 31 January, 2020, the chief justice repeatedly remarked that it was “unfortunate that retired judges participated in such an event” and referred the whole matter to the Court’s “Security Committee”, in charge of monitoring the internal security of the High Court campus. In a country built on Gandhi’s civil disobedience, a silent rally was now a security issue.

On 14 February, 2020 videos emerged (here and here) of the police brutalising protestors in Vannarapettai in North Chennai, largely Muslim men and women, who had occupied a road. “Chennai’s Shaheen Bagh” they called it. The police detained over 200 protestors, this time at two different marriage halls. I went to one of them as a lawyer.

The videos and photos of police brutality the people here put “lathi charge” to shame. It was a lathi onslaught. At least one protestor was admitted to hospital, and dozens others injured. One protestor died of a heart attack during the attack. The Joint Commissioner of Police for north Chennai, Kapilkumar Saratkar, was in charge of Thoothukudi when police shot anti-Sterlite protestors on May 22, 2018.

The attack on 14 February, 2020, led to a wave of protests by the Muslim community all over Chennai and in Coimbatore, Trichy, Madurai, Thoothukudi, and Tirunelveli amongst others. The Madras City Police Act was extended to Coimbatore and Madurai by the Madras City Police (extension to the City of Madurai and to the City of Coimbatore) Act, 1987, and section 41 applies there as well. In other cities, the Tamil Nadu District Police Act, 1859 applies. Section 42-A of this Act gives the police the powers to regulate all kinds of assemblies, similar to section 41 of the Madras City Police Act, 1888.

Still, “Chennai’s Shaheen Bagh” is in its second week now. There is a tense truce between the police and leaders of the Muslim community who have been supporting this protest, each waiting for the other to break. After two months of us trying to work around section 41, the people of Vannarapettai have shown us their way – collect a large enough crowd and ignore the prohibition. When the legislature, executive and judiciary view fundamental rights as a nuisance, defy them. When they strike back, stay firm.

(Swaroop Mami is a practising lawyer and musician based in Chennai.)