The International Human Rights Framework on the Right of Peaceful Assembly
India is a state party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
India is not a state party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the state has violated their human rights as protected under the Covenant.
There is no regional Asian human rights treaty to which India could become party.
The Domestic Legal Framework on the Right of Peaceful Assembly
Under Article 19(1)(b) of the 1949 Constitution of India (as amended), "All citizens shall have the right ... to assemble peaceably and without arms".
Section 144 of the 1973 Criminal Procedure Code allows an executive magistrate to prohibit an assembly of more than four persons in an area. Section 142 of the Penal Code in turn prohibits participation in an unlawful assembly:
Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.
Section 144 institutes the crime of joining an unlawful assembly armed with deadly weapon:
Whoever, being armed with any deadly weapon, or with anything which, used as a weapon of offence, is likely to cause death, is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the state and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
While, as a federal state, India's different states are entitled to have different laws, rules, and procedures for police officers, the administration of criminal law is governed by a federal law, the 1973 Code of Criminal Procedure. This legislation complements the 1860 Indian Penal Code.
Chapter X of the Code of Criminal Procedure concerns the “maintenance of public order and tranquillity”. Section 129 allows the dispersal of an assembly by force but does not address the force that may--and may not--be used to achieve this.
Chapter V of the Code addresses arrests by the police. Section 46 authorises a police officer to use "all means necessary" to effect an arrest when either the person forcibly resists arrest or attempts to evade arrest.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Under the Code of Criminal Procedure, if a person resisting arrest is accused of an offence punishable with death or life imprisonment, the police officer may use lethal force. This does not comply with international law.
The 1990 Armed Forces (Jammu and Kashmir) Special Powers Act remains in force for the state of Jammu and Kashmir. Section 4 of the Act gives sweeping powers to the members of the armed forces, allowing an officer who
is of the opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances;
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
India has not come before the Human Rights Committee in recent years. In its 2017 Universal Periodic Review under the Human Rights Council, India did not address the right of peaceful assembly.
There is no regional human rights mechanism with jurisdiction over India.
Anita Thakur v. State of Jammu & Kashmir (2016)
In its judgment in this case, the Indian Supreme Court observed:
In those cases where assembly is peaceful, use of police force is not warranted at all. However, in those situations where crowd or assembly becomes violent it may necessitate and justify using reasonable police force. However, it becomes a more serious problem when taking recourse to such an action, police indulges in excesses and crosses the limit by using excessive force thereby becoming barbaric or by not halting even after controlling the situation and continuing its tirade. This results in violation of human rights and human dignity. That is the reason human rights activists feel that police frequently abuses its power to use force and that becomes a serious threat to the rule of law.Anita Thakur v. State of J&K, (2016) 15 SCC 525.
In 2016, the Bengaluru police filed a sedition case against Amnesty International based on a complaint filed by the Akhil Bharatiya Vidyarthi Parishad for organising a programme that portrayed the human suffering from the Kashmir conflict. The police charged Amnesty India with sedition under Section 124A of the Indian Penal Code. Sedition is defined as “whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law.” The government also filed cases against Amnesty’s representatives under sections 142, 143, 147, and 149 for unlawful assembly and rioting and Section 153a for promoting enmity between groups.
Views of Civil Society
According to Freedom House's 2019 report on India:
While there are some restrictions on freedoms of assembly and association — such as a provision of the criminal procedure code empowering authorities to restrict free assembly and impose curfews whenever “immediate prevention or speedy remedy” is required — peaceful protest events take place regularly. However, in recent years, central and state governments have frequently suspended mobile internet services to curb collective action by citizens.