Freedom of Association and Assembly / Protests, Political Expression
Tatár v. Hungary
Closed Expands Expression
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The Bombay High Court set aside orders issued by police and a magistrate which had prohibited peaceful protests against the Citizenship Amendment Act (CAA) in India. The police had refused the application for police permission to hold daily peaceful protests and referred it to the magistrate, citing concerns over threats to law and order. The Court noted the importance of the right to freedom of expression and assembly in India and stressed that in executing their duties government officials must be sensitive to not unjustifiably hinder the exercise of those rights.
On January 21, 2020 the Police Inspector at the City Police Station in Majalgaon, India refused permission for protestors to hold daily peaceful protests from 6pm to 10pm at the old Idgah Maidan in Majalgaon. The protests were against the controversial Citizenship Amendment Act (CAA) which many protestors believed to be discriminatory on religious grounds.
After receiving the request for permission and issuing their prohibition order, police officials wrote to the District Magistrate suggesting that the protests posed a law and order problem by, for example, the blocking of roads. The police letter noted that the protests were in relation to the CAA as well as other political and economic complaints. On January 31, 2020, the Additional District Magistrate passed an order prohibiting various activities including sloganeering, singing and beating drums.
Iftekhar Zakee Shaikh, one of the protestors, approached the High Court in Bombay to challenge the police prohibition and the order from the agistrate.
Judges Nalawade and Sewlikar delivered the judgment of the Bombay High Court. The central issue for the Court to determine was whether the orders issued by the police and magistrate were justifiable.
The police and magistrate submitted that they did not intend to continue to prohibit Shaikh and other protestors from peaceful protests against the CAA, and the police committed to providing the requisite protection to protestors.
The Court noted that the magistrate’s order appeared to be neutral by prohibiting all protests, but that “in reality the order is against persons who want to agitate, to protest against CAA”, and held that “[t]hus, it can be said that there is no fairness and the order was not made honestly” [para. 4]. The Court recognized that there was an ongoing constitutional challenge to the validity of the CAA, but that this was not of concern to the Court in the present matter.
The Court considered India’s political history of the freedom struggle and the role of peaceful dissent – particularly in the period of British rule. The Court noted that “India got freedom due to agitations which were non-violent and this path of non-violence is followed by the people of this country till this date”[para. 8]. It also observed that many pre-independence laws, “which ought to have been scrapped after getting freedom,” remained in force and were being used against Indian citizens [para. 12].
The Court discussed the effect of fundamental rights protection in India and noted that India is a “democratic republic country and our constitution has given us rule of law and not rule of majority” [para. 6]. Accordingly, the Court stressed that when a specific group (in this case, Muslims) believe that an Act jeopardizes their interest and protest against it “the Court cannot go into the merits of that perception or belief” [para. 6]. The Court’s duty is solely to determine whether that group has the right to agitate to oppose the law, and the Court distinguished this duty from a government’s duty, noting that “it is not open to the Court to ascertain whether the exercise of such right will create law and order problem” [para. 6]. The Court recognized that in the agitation against the CAA the protestors have not been only Muslim citizens, as “many persons of all communities may feel that it is against the interest of mankind, humanity of basic human values” [para. 7].
The Indian Constitution protects the rights to equality in article 14, to freedom of expression and assembly in article 19 and to life in article 21. The Court stressed that if the protestors believe their right to equality is threatened by the CAA they have “the right to express their feelings as provided under Article 19” [para. 10].
In noting the right to protest against laws, the Court emphasized that the protestors “cannot be called as traitors, anti-nationals only because they want to oppose one law” [para. 9]. It also observed that the government and bureaucracy should be sensitive to the fact that the protestors are entitled to protest when they believe their rights are being infringed and that “[i]f they are not allowed to do so, the possibility of use of force is always there and the result will be violence, chaos, disorder and ultimately the danger to the unity of this country” [para. 12]. It added that bureaucrats should be given “proper training on human rights which are incorporated as fundamental rights in the constitution” [para. 12].
The Court held that both the police and Additional District Magistrate’s orders were illegal and set them both aside. It granted permission for the protests as well as police protection, subject to permission of the board that owned the property where the protests were proposed to be held.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court affirmed that the right to protest was a legitimate democratic means of expressing dissent against Government legislation. The Court also noted that the judicial officer could not judge the merits of the view that the legislation is discriminatory and that as long as such belief was held by the protesters, the right to protest was a fundamental right under article 19 of the Constitution.
Case significance refers to how influential the case is and how its significance changes over time.
The decision is of a Division Bench of the High Court of Bombay and therefore, binding on single-judge decisions of the High Court as well as all lower Courts. It holds persuasive value for other High Courts in the country.
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