Who will Protect the Constitution?

By Ashwin Tombat
23 December 2019 07:56 IST

Faced with the prospect of students and young people everywhere protesting against the Citizenship Amendment Act (CAA), the central government and a number of state governments have responded with exactly the same strategy that has been used to stifle all voices of dissent for the past several months in Jammu & Kashmir.

Internet services were banned for 10 days in Assam after protests broke out against the CAA. They were restored only on Friday morning, on orders of the Guwahati High Court.

Internet services continue to remain suspended at the time of writing in Mangaluru and the entire Dakshina Kannada district of Karnataka, as well as in Lucknow, the capital of Uttar Pradesh (UP) and 14 districts of the state, including large cities like Kanpur. On Thursday, Internet and SMS services were suspended in the national capital, in parts of Central and South Delhi.

Internet bans are imposed under the ‘Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017’. This law requires the authorities to provide a reasoned order. Further, it must be reviewed within five days by a committee comprising the judiciary, executive and administration, to confirm that it was a public emergency or to ensure public safety. These procedures were not followed.  

Article 19(1)(a) of the Constitution of India guarantees the right to free speech. The Supreme Court held in the case of the Marathi newspaper ‘Sakal’ in 1961, that this right extends to freedom of the press. Today, publishing a newspaper without access to the Internet is almost impossible. Several newspapers exist only on the Internet. A blanket Internet ban surely violates the Constitutional fundamental right to free speech.

An Internet ban doesn’t end at WhatsApp or SMS. It disrupts life. Shops and restaurants cannot accept credit or debit cards, as the POS machines don’t work. Patients can’t pay hospital bills electronically. Citizens can’t pay electricity, water or telephone bills online. One cannot book railway or air tickets on one’s smartphone. Businesses can’t make payments by NEFT or UPI. Any activity or transaction that requires connectivity is virtually impossible. This directly goes against Prime Minister Narendra Modi’s vision of e-governance, and of a ‘less cash’ economy in India.   

Then there’s orders for the imposition of Section 144, to prevent protests. Apart from areas in Delhi, it has been clamped in parts of the North-East, cities like Ahmedabad, and the entire states of Karnataka and UP. Citing Section 144, police cancelled all permissions already given for protests in Bengaluru and Delhi. In Kashmir, apart from an Internet shutdown, state-wide restrictions under Section 144 have continued since August.

How is any of this this legal?

Section 144 of the Criminal Procedure Code (CrPC) of 1973 authorises Executive Magistrates to issue an order prohibiting the assembly of four or more people in an area. Every member of any such 'unlawful assembly' can be booked for “rioting”. Sec 144 can only be imposed in urgent cases of nuisance or apprehended danger of damage to human life or property.

Article 19(1)(b) of the Constitution of India gives citizens the fundamental right to assemble peaceably and without arms. The Constitution allows reasonable restrictions, but they must be ‘reasonable’, and satisfy the requirements of Article 19(2) and 19(3).

The Supreme Court has held that for a Section 144 order restricting assembly, the only grounds are the sovereignty and the integrity of India, public order or morality. The threat to public order must be “imminent” and “genuine”, not merely “likely”. The measures imposed must be the least restrictive possible. The orders, as a general rule, must be against wrongdoers and not against innocent civilians, merely on grounds of convenience or expediency.

Can Section 144 orders imposed across entire states ever satisfy these requirements? Thankfully, the Karnataka High Court has questioned the imposition of Section 144 across the state.

No government can be allowed to break its own rules. It must allow people to exercise their Constitutional fundamental rights to free speech, as well as to assemble and protest peaceably against a law which they believe to be unjust and unconstitutional. The fact that the ruling party has a brute majority in parliament does not mean people lose their right to dissent.

When the government breaks its own rules, citizens have to rely on the courts. Unfortunately, the Supreme Court of India has not yet come forward to protect the fundamental rights of the people of Kashmir. Cases challenging the egregious and continuous violation of fundamental rights in the state were not heard for three months; because former Chief Justice Ranjan Gogoi couldn’t find the time owing to the Ayodhya case – a title suit about a piece of land. Another Bench heard the matter much later, and reserved judgment on 27 November. No verdict is likely till 6 January at the very earliest.

Earlier this week, the Supreme Court declined to hear petitions on police brutality in Jamia Milia Islamia University and Aligarh Muslim University, and directed that they be taken to the concerned High Courts. Is this why the Assam, Karnataka and UP governments feel emboldened enough to ban the Internet and impose Section 144 in any manner they please?

Who will stand up for democracy? Who will protect the Constitution?

One caveat here. Violating fundamental rights is not the BJP’s prerogative. Police in Congress-ruled Rajasthan arrested TV actress Payal Rohatgi for making and uploading a video on Motilal Nehru. “Freedom of Speech is a joke," she wrote. In the present situation, she’s absolutely right…!

Disclaimer: Views expressed above are the author's own.

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Ashwin Tombat

Ashwin Tombat has been the Editor of Gomantak Times and Herald. Worked as an Associate Editor of national magazine Gentleman in Mumbai, before shifting to Goa. Loves sailing, also participates in Marathons. Has worked as an activist in students's union and trade unions in Maharashtra. Also an artist of Street Theatre during student days.

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