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 of the Penal Code 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.
Most provinces empower the police to prohibit or grant permission for an assembly. For instance, the 1888 Madras City Police Act empowers the City Police Commissioner to “prohibit any assembly, meeting or procession if he considers such prohibition to be necessary for the preservation of the public peace or public safety”. When such a prohibitory order is in force, any person who intends to convene an assembly is expected to seek “permission” from the Commissioner at least five days prior to the date of the assembly.S. 41, 1888 Madras City Police Act.
Similarly, the 1951 Bombay Police Act empowers the Police Commissioner and the District Magistrate to “prohibit any assembly or procession whenever and for so long as it considers such prohibition to be necessary for the preservation of the public order.”S. 37, 1951 Bombay Police Act.The Act empowers the Police Commissioner to “regulate the conduct of and behaviour or action of persons constituting assemblies and processions on or along the street and prescribing in the case of processions the routes by which the order in which and times at which the same may pass”. Under this provision, the Bombay Police require persons to seek prior permission before assembly.S. 33(1)(o), 1951 Bombay Police Act.
Jammu and Kashmir
Following the revocation, on 5 August 2019, of Jammu and Kashmir’s semi-autonomous status under the Constitution of India, the Indian Government imposed severe restrictions on individual freedoms in the province, including on the right of assembly.
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 2019 List of Issues for India's next periodic report, the Committee asked for
information on measures taken to ensure accountability for the alleged serious human rights violations committed primarily in “disturbed” areas by the security forces and by police personnel, such as: (a) excessive use of force and extrajudicial killings, including in response to the large-scale protests that started in July 2016 throughout the Kashmir valley and in Jammu district....
In its 2017 Universal Periodic Review under the Human Rights Council, India did not address the right of peaceful assembly.
Office of the United Nations High Commissioner for Human Rights
In 2018, the Office of the United Nations (UN) High Commissioner for Human Rights (OHCHR) issued a report on the human rights situation in Indian-Administered and Pakistan-Administered Kashmir, noting restrictions on freedom of speech and expression in Indian-administered Kashmir.OHCHR, "Report on the Situation of Human Rights in Kashmir: Developments in the Indian State of Jammu and Kashmir from June 2016 to April 2018, and General Human Rights Concerns in Azad Jammu and Kashmir and Gilgit-Baltistan", 14 June 2018, at: https://www.ohchr.org/Documents/Countries/IN/DevelopmentsInKashmirJune2016ToApril2018.pdf.In 2019, the OHCHR noted:
Authorities in Jammu and Kashmir employ various means to disrupt the right to freedom of peaceful assembly and association of separatist or pro-independence leaders. They are often placed under house arrest for several days in order to prevent them from participating or leading protests, public meetings and even religious congregations. Authorities use sections 144, 107 and 151 of the Jammu and Kashmir Code of Criminal Procedure 1989 to thwart the political work of separatist or pro-independence leaders.
UN Special Procedures
On 16 August 2019, UN Special Procedures wrote a joint letter to the Government of India “concerning severe restrictions on freedom of expression and freedom of peaceful assembly and of association imposed during the past week in the state of Jammu and Kashmir, as well as the arbitrary arrests and detention of political figures, journalists, members of civil society and human rights defenders in the state, and violations to the right to life.”Mandates of the Working Group on Arbitrary Detention; the Working Group on Enforced or Involuntary Disappearances; the Special Rapporteur on extrajudicial, summary or arbitrary executions; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; and the Special Rapporteur on the situation of human rights defenders.They expressed “deep concern over the severe restrictions on the rights to freedom of expression and freedom of peaceful assembly and of association, and violations to the right to life, in Jammu and Kashmir”. They further expressed concern "over the imposition of Section 144 of the Code of Criminal Procedure in region, that blanket bans on the right to freedom of peaceful assembly are intrinsically disproportionate, because they preclude consideration of the specific circumstances of each proposed assembly.”
The UN Special Procedures expressed “grave concern at reports on the use of force by the authorities, including live ammunition”.
There is no regional human rights mechanism with jurisdiction over India.
Sahni v. Commissioner of Police (2020)
This Supreme Court ruling was set against the backdrop of the protests against the 2019 Citizenship Amendment Act. The right to assemble and protest was balanced against the inconvenience caused to the public by road closures. “Agitation in the form of public protest organised in Delhi lead to closure of the KalindiKunj-ShaheenBagh stretch, including the Okhla underpass. Petition challenging such closure was also filed before the Delhi High Court, which however was disposed on the same day by directing authorities to take appropriate action. The closure amounted to inconvenience at large and blockage of the public way.
The Court stated that:
Public ways and spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters.
Such kind of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.
Himat Lal K Shah v. Commissioner of Police (1973)
In its 1973 judgment in this case,Himat Lal K Shah v. Commissioner of Police, Ahmedabad, (1973) 1 SCC 227.the Supreme Court of India made it clear
that there is nothing wrong in requiring previous permission to be obtained before holding a public meeting on a public street, for the right ... is not a right to hold a meeting at any place and time. It is a right which can be regulated in the interest of all so that all can enjoy the right.
"Kashmir Lockdown" case (2020)
In its judgment of January 2020,Anuradha Bhasin v Union of India and ors, Writ Petition (Civil) No. 1031 of 2019, available at: https://main.sci.gov.in/supremecourt/2019/28817/28817_2019_2_1501_19350_Judgement_10-Jan-2020.pdf.the Supreme Court of India addressed the interpretation to be given to Section 144 of the 1973 Criminal Procedure Code as follows:
The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed…
The power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights…
An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner….
While exercising the power under Section 144, Cr.P.C., the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure…
Repetitive orders under Section 144, Cr.P.C. would be an abuse of power.
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 2021 report on India:
There are legal restrictions on freedom of assembly, including a provision of the criminal procedure code that empowers authorities to restrict public gatherings and impose curfews whenever “immediate prevention or speedy remedy” is required. State and central governments have repeatedly suspended mobile and internet service to curb protests in recent years, including in 2020. Peaceful demonstrations take place regularly in practice, although the pandemic led to fewer such events being held in 2020.
The national government and some state governments used assembly bans, internet blackouts, and live ammunition between December 2019 and March 2020 to quell widespread protests against the Citizenship Amendment Act and proposals to roll out a citizens’ registration process across the country. Protesters, including students and academics, were detained, denied access to legal representation, and subjected to harsh treatment. In February, more than 50 people were killed in protest-related violence in Delhi; there were reports of indiscriminate attacks against Muslims and police officers failing to respond, as well as some attacks against the police and Hindu residents. Critics alleged that the country’s COVID-19 lockdown, which was imposed in March and gradually eased beginning in May, was conceived by the government in part to forestall further Citizenship Amendment Act protests and to silence dissent.