In Mumbai, the Fundamental Right to Show Dissent Has Been Violated for 30 Years

Successive and overlapping Section 144 orders since 1993 have put paid to Mumbaikars' ability to protest where and when they want to.

Mumbai: On January 25, the Mumbai Police Commissionerate issued a notification claiming that “terrorist or anti-social elements may seek hideouts in the residential areas of Mumbai and that there is a likelihood of breach of peace and disturbance of public tranquillity”.

The notification further talked about the “grave danger to human life, health and safety and injury to public property”.

The order listed a series of precautions that one would have to take while renting out or subletting their house.  

Soon after, in another overlapping order on February 8, the police department issued similar apprehensions. This time, the order stated that five or more persons cannot assemble in the city and any kind of procession was prohibited. 

Serious as it may sound, the concerns as stated in the notifications, however, were not issued on the basis of any specific intelligence input or on anticipation of any particular threat. It was merely a build-up for a prohibitory order issued under Section 144 of the Criminal Procedure Code (CrPC) and several sections of the Maharashtra Police Act in the city.

The order, issued by Pranaya Ashok, Deputy Commissioner of Mumbai Police, Operations, was a “routine” one, that is being signed by the department every two months. According to senior police officials, it is almost ritualistic, and has been renewed at a regular interval for nearly three decades, without a break. Sometimes multiple orders are issued under both the CrPC and the Maharashtra Police Act at the same time. 

Also read: Police’s Stern Response Fails to Dampen the Spirit of Women in Mumbai Bagh

The continuous, almost permanent imposition of prohibitory orders started soon after the communal violence that broke in Mumbai city in 1992-93, following the Babri Masjid demolition. The city’s secular fabric was completely ripped apart, killing over 700 and leaving several thousand severely injured. As a response to this, the city police decided to apply a blanket ban on protests in the city. Since then, assembling of more than five persons is unlawful; and protests, only with a police order, an exception. 

This practice of orders issued by the executive magistrate, in this case the Deputy Commissioner of Mumbai police, has been for a very long time alarmingly snatching away the citizen’s right to assemble, right to organise and take out processions and also their crucial right to protest peacefully in the city.

The unceasing succession in which these orders, most times even overlapping and issued before the earlier order would expire, has kept individuals from exercising their fundamental right as enshrined under the Indian constitution. 

Similarly worded orders issued by Mumbai Police.

Mumbai police, however, do not see a problem in this imposition.

Justifying the reasons for these orders, DCP Ashok tells The Wire that the primary reason that such orders are imposed is because of the prevailing “threat perception in the city.”

Ashok says since Mumbai city is constantly under threat, the imposition of such orders become mandatory. But their application, he says, has mostly been a matter of routine than out of any particular fear of attack that the city has faced in the recent past. “It is a serious concern but this order, so to say, is issued regularly,” he adds. 

The Wire has accessed orders issued in the past year and almost all of them are worded similarly. Even the concerns raised in them read the same. Ashok says since these are routine orders, much emphasis is not put on redrafting them. “Every two months, these orders get issued and they are mostly almost worded the same way,” he tells The Wire

In the past six months, the police department, along with orders prohibiting people’s assembly, has also issued orders on house owners letting out flats, use of loudspeakers, bursting of crackers, flying lanterns, among other things. And all this is issued in the name of peace, public safety and tranquillity.  

Two more orders by the Commissionerate.

Such suspensions of fundamental rights, particularly of an individual’s right to protest has been contested time and again in the court and has also been critically looked at by both the high court and the Supreme Court.

In the past decade, in at least two landmark judgments, the Supreme Court has observed that by permanent or semi-permanent issuance of such prohibitory orders, the fundamental rights of citizens are completely denied. The court has recognised that the right to peaceful protest was a fundamental right under Article 19(1), (b) and (c) of the constitution, subject to reasonable restrictions.

These restrictions, the courts have said, should be imposed with application of mind and with great responsibility. 

In the Mazdoor Kisan Shakti Sanghatan vs Union of India case, the apex court in 2018 had made several sharp observations against the Delhi police’s arbitrary decision of imposing unlawful assembly sections in the region. 

Looking at Section 144 of the CrPc critically in the Delhi police’s case, the court observed:

“No doubt, an order passed under section 144 of the Cr.P.C. remains valid for a period of sixty days which is the limit prescribed in that provision. However, just before the expiry of one order, another identical order is passed. Such repeated orders, in continuum, have created a situation of perpetuity.” 

The judgment further observes:

“It is argued on behalf of the respondents that as there is no change in the situation, which remains the same insofar as the sensitivity of this area and specific/peculiar conditions prevailing, such orders in the repetitive form are necessitated. Even if we accept this position and proceed on that basis, this would only mean continuous regulation of the proposed public meetings, processions, demonstrations, etc. by not allowing the same in ‘unrestricted’ manner. However, in reality, no such activities are allowed at all.” 

Similarly, in the Ramlila Maidan incident of 2011, when the Supreme Court was faced with the issue of police excesses for the purpose of enforcing an order under Section 144, the court had observed that the right to assembly and peaceful agitation were basic features of a democratic system and the government should encourage the exercise of these rights. 

It observed

“The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance. The Government has to respect and, in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of the right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate the exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that the direction in the name of reasonable restrictions.”

Disha Wadekar, a young lawyer practicing in the Supreme Court and also one of the lawyers handling cases related to the recent protests in Delhi, including the alleged police brutality on Jamia Millia Islamia students, says these prohibitory orders are specifically designed to talk of an imaginary threat and maintenance of “public order”.

“This term ‘public order’ finds a mention in both the CrPC and the Constitution. While the task of ensuring the public order is bestowed upon the police, it can’t go beyond the ambit of the constitution,” she points out.

In these judgments, the courts have amply made it clear that it is on the state government to not only ensure law and order of the state but to also provide conducive atmosphere for its citizens to exercise the right to assemble and protest. In Mumbai, however, irrespective of the government, these rights have always been compromised with, says senior human rights lawyer Mihir Desai.

“When people take to the street, they are there for a reason. They are out in public demanding something or protesting against something that impacts their life. Protesting is the essence of democracy. But in Mumbai, one can’t do that. At best, the police allow people to gather at Azad Maidan, that too after going through a complicated procedure,” Desai says. 

Protestors turned up in huge number at Azad Maidan in Mumbai. Credit: Sukanya Shantha

Protesters at Azad Maidan in Mumbai. Photo: Sukanya Shantha

Azad Maidan, in South Mumbai, has for decades been a demarcated space for workers unions and various protesting groups to demonstrate. While these protests too have to be carried out with permissions, civil society groups say pushing the protesters away from the government offices they are protesting against only dissipates the real effect of it.

The continuous use of prohibition, Wadekar says, allows police to act as per their whims and fancies, as seen in the recent cases where people protesting against the Citizenship Amendment Act were indiscriminately attacked and fired at, particularly in BJP- ruled states.

The states harp on the term ‘restrictions’ while justifying these probatory orders. Wadekar says: “While both the constitution and the court mention ‘restrictions’ on the fundamental rights, these restrictions have to be reasonable and can’t just blindly extinguish individual’s rights forever. Such situations only give rise to a ‘police state’, like what we have been seeing in Delhi right now.”

“Imagine if a group of Asha workers are protesting against the state government’s decision of not raising their wages and instead of protesting outside Mantralaya, they are forced to stay in a small demarcated space in a field. No one cares for their issues and this way the state is also marring their efforts to make themselves heard,” Desai says. 

There have been various perspectives on the imposition of such prohibitory orders.

While rights activists and lawyers have maintained that such a law is violative in nature, senior police officials have looked at this as a tool to maintain peace in the locality.

Also read: Bombay HC Says Peaceful CAA Protesters Cannot Be Called Traitors, ‘Anti-National’

Retired Director General of Police, Dr. Meeran Chadha Borwankar, says, “Sometimes we would perceive an upcoming law and order issue and would get regulatory orders from the commissioner’s office in advance. This was done to only avoid a last-minute rush.”

She further said the commissioner could raise a query or ask for more facts while passing such an order. “All this is a drill to maintain peace,” she added. While she feels that most of these orders are issued in the larger interest of people and to maintain peace, she considers the continuous issuance of such orders as a serious problem. 

In the past months, Mumbai city like most other cities, has been particularly active as voices have risen in dissent against the recently passed Citizenship Amendment Act and other two imminent countrywide exercises, the National Register of Citizens (NRC) and the National Population Register (NPR).

Desai says the law has been effectively used to diffuse voices that counter and question. “When the Pride March in Mumbai decided to go beyond the purview of gender and sexuality and also raise important questions mattering to this country, the police got frightened. They immediately showed Section 144 order and denied them permission for a rally. This is precisely how the law gets used against citizens. Every divergent view and disapproval get scuttled under some imaginary threat to public safety or danger. And if this is not challenged, our constitutional rights will slowly corrode,” he warns.