Citizenship Act protests: How a colonial-era law is being used in India

A woman reacts as she confronts police at a demonstration against Indias new citizenship law in New Delhi on December 19, 2019 Image copyright AFP
Image caption Hundreds of protestors have been detained all over India on Thursday

A draconian colonial-era regulation is being used to shut down protests against a controversial new citizenship law in India.

On Thursday, the ban was imposed in parts of the capital, Delhi, Uttar Pradesh state and some areas of Karnataka state, including the city of Bangalore. Thousands of protesters were detained in many cities as they turned up in defiance of police orders.

Section 144, as the provision is called, authorises officials to prohibit, among other things, a gathering of more than four people if they fear a possible violation of law and order. The law gives powers to state governments and the local police. Breaking the law is a criminal offence.

Many believe the law has been misused to try to stifle protests. Constitutional law expert Gautam Bhatia says problems have arisen in reconciling the law with the constitutional guarantee of free speech and the right to freedom of assembly.

Image copyright Reuters
Image caption The law makes a gathering of more than four people a criminal offence

The constitution allows for reasonable restrictions to be placed on these rights in the interest of public order. Courts have debated what constitutes a reasonable restriction - and have ruled that freedom of expression can be restricted on grounds of public order only when it involves incitement to imminent violence or disorder.

So the authorities, says Mr Bhatia, must demonstrate a "very clear and proximate risk to public order and a threat to public peace" before they can impose such a restriction.

"For example if you know that a mob is gathering somewhere and there are going to be incendiary speeches directing the mob to burn down buildings then you can preventively restrict that assembly. But you can't simply restrict these rights just on the basis of a possible fear that some people at some point can turn violent. That would defeat the entire purpose of having the right in the first place."

For example, the law was imposed on Thursday in Bangalore, where has been no recent record of people turning to violent protest. So it can argued that the essential condition for imposing the law has not been met. "This is an abuse of power and unreasonable violation of fundamental rights which can and should be challenged in the courts," says Mr Bhatia.

Image copyright Reuters
Image caption There have been countrywide protests against a controversial citizenship law

In a paper on ways to deal with mobilised violence, researchers at the Takshashila Institution and Vidhi Centre for Legal Policy Research say the problem with Section 144 is that it is "primarily meant to be applied during emergencies, but this requirement is frequently not met. In reality, it operates as a blanket prohibition which can be applied in an overly broad and discriminatory manner."

Successive governments have used the law to stifle protests. Avinash Kumar of rights group Amnesty International India says "denying permission for peaceful protests shows an apparent disdain for the right to freedom of expression". India, clearly, needs to stop criminalising protest.

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