Bengaluru: On 15 August, 2022, the police arrested 72 farmers who were protesting against a state government takeover of their land to launch a global tender to invite businesses to set up plants in Devanahalli on the northern edges of Karnataka’s capital—not for protesting the takeover but for protesting in the wrong place.
These farmers, at the time of their arrest, had been on an indefinite strike for more than 120 days against the acquisition of 1,777 acres of fertile land by the Karnataka Industrial Area Development Board. They were arrested for protesting in Devanahalli town and not Freedom Park, over 35 km away in the heart of the city and now the only lawful protest site in Bengaluru.
Since the state government passed the Licensing and Regulation of Protests, Demonstrations and Protest Marches (Bengaluru City) Order, 2021 in January 2022 it is illegal to protest anywhere else in the city.
Once the site of the city’s central jail, Freedom Park is 16 acres, of which no more than 5 acres is set aside for protests. That’s less than the size of four football fields in a city of 12 million.
This order was enacted due a suo moto Karnataka High Court public interest litigation (PIL)—meaning a case started by the court itself— launched in March 2021 that sought “unobstructed vehicular traffic”.
The 2022 order, as we show, contravenes constitutional rights, various Supreme Court judgements and international standards related to the right to peaceful assembly and right to protest. It criminalises protest, especially the facets that make it practical and effective and makes every protest in Bengaluru subject to prior police approval.
The 2022 order introduces various conditions that make the organisation of protests formidable and empowers the police to dictate where, how and when to protest. Even a single protestor now requires a police permit.
“It would have been better if they had completely banned all protests, instead of pushing us to Freedom Park, creating an illusion of protests while invisibilising the essence of the protest,” said Sharath, who only uses one name, a member of the All India Student Association who was recently detained by the police for allegedly flouting the new order.
During the peak of protests against the Citizenship Amendment Act (CAA) 2019 in December 2019, in Bengaluru, the Karnataka High Court in a landmark judgment declared a police order limiting gatherings to no more than five people to be “completely illegal”, while holding that the “right to protest” was a basic feature of democracy protected under the Constitution of India.
However, the latest intervention of the Karnataka High Court in this PIL has resulted in a reversal of the previous stand of the Court to curtail the right to protest.
The Court’s ‘Public’ Interest Litigation
Justice Aravind Kumar (then a judge of the Karnataka High Court, now the Chief Justice of the Gujarat High Court) had in March 2021 written a letter to the then Chief Justice of the Karnataka High Court pointing to newspaper reports about protests in Bengaluru on 2 March 2021 causing traffic jams.
Based on this letter, the court instituted a suo moto PIL to direct the State to regulate protests and restrict all protest-related activities to Freedom Park in the neighbourhood of Gandhinagar in central Bengaluru. High Courts and the Supreme Court can launch cases without a petition being filed.
“Due to such traffic congestion, not only that (sic) large number of working hours of the persons caught in the traffic (sic) are lost, even the movement of the ambulances is affected,” said the court’s March 2021 interim order.
“Working class is also affected as public transport buses and auto rickshaws also get stuck in traffic. It caused (sic) huge loss of fuel,” said the interim order. “This is very relevant in the context of the current prices of fuel. Hence, a suo moto Public Interest Litigation will have to be initiated.”
It is unclear why the court used this justification to restrict the fundamental right of protest, which the Supreme Court has, over the years, frequently held to be a basic feature of a democratic system which the governments are meant to not only respect but also encourage. (here, here, and here)
The Bengaluru High Court’s observations have been widely criticised, premised as the Court’s PIL was on the argument—based on a few newspaper reports—that protests were the prime cause of traffic jams. The court did not consider other reasons, such as political rallies or VIP convoys.
Traffic Is A Transport Issue: Experts
“There isn’t a culture of mass transport (in Bengaluru),” said Krishnaswamy. “Traffic is a polycentric problem. Courts are showing overreach in stepping into urban management and administrative issues.”
Other experts have said that the poor infrastructure and inadequate public mass transit are the prime reasons for traffic congestion in Bengaluru.
“Protests are probably one of the lowest drivers of traffic congestion, and it is a mystery as to why the courts link the two,” said Krishnaswamy, who argued that the case was about “a larger issue of the right to access public space, which should be provided equally to all citizens irrespective of who they are”.
“If the State can accommodate traffic woes for these political parties or VIPs, what’s wrong in reasonably accommodating protestors as well?” said Krishnaswamy. “Don’t protestors also have the right to access these public spaces?”
As a consequence of the intervention of the High Court, the State, with no consultation, as Deccan Herald reported on 10 March 2022, formulated the new order to regulate protests. The 2022 order exists now alongside a previous order, the Licencing and Controlling of Assemblies and Processions (Bengaluru City) Order, 2008.
Right To Protest Basic Democratic Feature: Courts
Indian courts have repeatedly held that the right to protest is a basic feature of democracy, protected under the Constitution under the right to freedom of speech and expression [Article 19(1)(a)], peaceful assembly [Article 19(1)(b)], association [Article 19(1)(c)] and free movement [Article 19(1)(d)].
At the heart of the right to protest lies the right to peaceful assembly, which can be, in cases like the one in Bengaluru, restricted on the grounds of “public order” as provided for under Article 19(3), which means that as long as the assembly is peaceful and does not affect “public order”, it is well within limits set by the Constitution.
The challenges involved in ensuring that the right to protest is effective relates to a conflict of interest for the State, since an exercise of the right to protest, is, often, a threat to State interests.
The role of the Courts in dealing with such cases requires a fine balancing of interests: enabling the right to be exercised without imposing disproportionate burdens on citizens.
To justify restrictions to the right to protest, reference is often made to a 1973 constitutional bench ruling of the Supreme Court in Himat Lal Shah vs Commissioner of Police, where the court observed that the right to assemble was subject to regulation, but regulation could not include outright prohibition.
“The State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place,” said the Supreme Court in the Himat Shah judgement. “The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order.”
The condition of “reasonable restrictions” and the requirement of putting restrictions to a test of proportionality, as is now mandated, is often overlooked.
While the Karnataka government’s 2022 order clearly interferes with and greatly restricts the right to protest, the Karnataka High Court did not examine these restrictions.
On 1 August 2022, the court finally disposed of the PIL and directed the State to implement the new government Order in “letter and spirit” by ensuring that all protests were restricted to Freedom Park.
What Changed Since 2008
The 2008 order enacted by the commissioner of police, in its preamble noted that “smooth flow of traffic in Bangalore City is being affected adversely due to processions and assemblies of persons that are organized by political, religious and social groups”.
The 2008 order was promulgated to regulate these assemblies and processions to ensure traffic was not affected.
The 2008 order did not discriminate between protest assemblies and other forms of assemblies and mandated a prior police license for an “assembly”, if the number of people exceeded 250; for a “procession”, 25. Marriage and funeral processions were exempt.
The constitutional validity of the 2008 order was upheld by the Karnataka High Court in February 2020 and, in an earlier case in July 2019, the court ordered the State “to give wide publicity to this Order” and “ensure strict compliance with the said Order”.
In the latest PIL, the high court did not consider the 2008 order, its inefficiencies, implementation issues and whether it succeeded in regulating traffic.
Why Are Protests Different From ‘Assemblies’?
The 2022 order defines protest as “the action of congregation of one or more persons at one place, in a peaceful and lawful manner with the intention of showing dissent or expressing opposition or objection to issue(s) including political, social, religious, cultural, farmers, workers or any other issues”.
The order treats protests differently from “assemblies” or processions. These assemblies or processions could include election rallies by political parties or marriage processions or religious processions, which are free to be held in the city, even though they would cause traffic jams.
By treating protests differently, the 2022 order discriminates between protestors and organised political parties or other citizens not expressing dissent. There appears to be no rationale as to why these assemblies get a free pass when the effect on vehicular traffic is similar.
There are likely to be grey areas. For example, May Day celebrations, or pride parades may not per se involve an expression of dissent or disagreement and maybe celebrations of sorts, but the police may, potentially, still treat them as protests.
Some protests that support the party in power, such as the pro-CAA protests, would potentially not be treated as a protest under the new order.
Global Developments Around Protest
Internationally, the human rights committee of the United Nations, based on jurisprudential developments pertaining to freedom of peaceful assembly, note that prior permits are antithetical to the idea that peaceful assembly is a basic right and are essentially incompatible with the right to peaceful assembly.
Although prior-notification requirements are held to be valid globally, they are meant to be couched in narrow terms, so as to enable the State to facilitate peaceful assemblies and protect the rights of protestors by making it such prior permits requirement for large assemblies and not for smaller assemblies.
Giving such broad discretionary powers to the police, as Supreme Court advocate Vrinda Grover noted, in her December 2021 report to the International Center for Not-for-Profit Law on the right to peaceful assembly, enables them to discriminatorily exercise their powers to grant permission.
This has been evident in the past in Bengaluru, where pro-CAA protesters were allowed to display their support to the law, while anti-CAA protesters were denied permits.
Internationally, the ‘principle of sight and sound’ which stipulates that the protesters must be enabled to organize their protest within the sight and sound of their target audience, is considered to be a core ingredient of the right to protest.
The Importance Of Place In Protest
When protests are limited to Freedom Park, they are, said protestors, hidden from public view because it is a confined space, behind barricades and trees.
In the case with the protesting farmers of Devanahalli, Sharath, the protestor who was detained, said farmers were protesting in Devanahalli because that was where the land was being taken over. The protests were meant to be held before visiting lawmakers.
“You can’t force these farmers to take buses to Freedom Park and travel all the way there to protest against injustices happening in their locality,” said Sharath. “This would serve no purpose”.
Krishnaswamy pointed out how in 2016 it made little sense to hold a protest at Freedom Park against a flyover that was to take down 800 trees. The protest took place where the flyover was to be built. Protestors pinned posters to the trees in question and peacefully held placards without disrupting traffic. The protests worked, and the flyover was cancelled in 2017.
Similarly, in 2017, there were protests against sexual attacks on women on New Year’s eve on Brigade Road, where the city traditionally allows a party on the street. The police pressurised protestors to take the protest to another place.
“But the whole point of this protest was to reclaim public spaces for women, it was specifically directed to counter the molestations, which signalled that women do not belong in public spaces or have safe access to public spaces,” said Krishnaswamy. “Therefore it was imperative to protest at the same space where women were denied this access.”
Police Allowed Discretion, But It’s Meaningless
While the high court’s ruling directs the State not to allow protests anywhere other than the Freedom Park, the 2022 government order allows the commissioner of police to permit protests at other places.
This is unlikely because not only are the police not likely to violate a high court ruling, the government order also lists almost all public spaces within central Bengaluru as a “prohibited area” for protests, which means the discretion granted to police is effectively meaningless.
The prohibited area covers central Bengaluru, where prominent governmental offices are located, including the state legislature, offices of high-ranking government officials, the high court and other courts. In essence, the 2021 Order insulates and shields those with offices here from the dissent or disagreements expressed by protestors.
This is an area that has been historically important for the symbolic value it has traditionally held for protestors.
In practice, the 2021 order could be likened to the eternal imposition of section 144 of the Indian Penal Code, 1860, a law used to stop assemblies of five or more people. Courts have held the repeated use of section 144 orders to be unconstitutional.
While internationally State obligations with respect to the right to peaceful assembly are moving towards making it the duty of the State to facilitate and protect protests, the intervention of the Karnataka high court, and the State Order, clearly moves in the opposite direction.
(Mohith Shivakumar recently completed his LL.M from the National Law School of India University and is an independent legal researcher based in Bengaluru.)