The Right to Assemble under Article 19(1)(b) of the Indian Constitution: A Judicial Exposition

The Right to Assemble under Article 19(1)(b) of the Indian Constitution: A Judicial Exposition

Introduction

Article 19(1)(b) of the Constitution of India guarantees to all citizens the fundamental right "to assemble peaceably and without arms." This right is a cornerstone of a democratic polity, enabling citizens to collectively express their views, voice grievances, and participate in public discourse. The Indian judiciary, particularly the Supreme Court, has played a pivotal role in interpreting the scope and limitations of this right, balancing it against the imperatives of public order and the rights of other citizens. This article seeks to analyze the contours of Article 19(1)(b) as delineated by judicial pronouncements, drawing heavily upon landmark case law and constitutional principles.

The Constitutional Mandate: Article 19(1)(b)

Article 19 of the Constitution of India confers upon its citizens several treasured rights, including the right to freedom of speech and expression under Article 19(1)(a) and the right to assemble peacefully without arms under Article 19(1)(b) (Amit Sahni v. Commissioner Of Police And Others, 2020; Amit Sahni (Shaheen Bagh, In Re) v. State, 2020). These rights, often in cohesion, enable citizens to assemble peacefully and protest against the actions or inactions of the State (Amit Sahni, 2020). The Supreme Court has affirmed that "the right of citizens to take out processions or to hold public meetings flows from the right in Article 19(1)(b) to assemble peaceably and without arms and the right to move anywhere in the territory of India" under Article 19(1)(d) (Himat Lal K. Shah v. Commissioner Of Police, Ahmedabad And Another, 1972, citing Babulal Parate v. State of Maharashtra, 1961). This right is fundamental for democratic participation but is not absolute and is subject to reasonable restrictions.

Judicial Interpretation and Scope of the Right

The judiciary has expounded upon various facets of the right to assemble, including its exercise in public spaces, the balance with public order, and the permissible extent of state regulation.

The Right to Assemble on Public Streets and Spaces

A significant aspect of the right to assemble concerns its exercise on public streets and in public parks. In Himat Lal K. Shah v. Commissioner Of Police, Ahmedabad And Another (1973 SCC 1 227, 1972), the Supreme Court examined the authority of the Police Commissioner to impose restrictions on holding public meetings on public streets without prior permission. The Court held that Rule 7 of the Police Rules, mandating prior permission, was unconstitutional as it vested unchecked and arbitrary discretion in the Police Commissioner. It was emphasized that public streets and parks are held by the state in trust for the public's use, subject to reasonable regulations (Himat Lal K. Shah, 1972, citing Saghir Ahmad v. State Of U.P., 1953).

The Court in Himat Lal K. Shah (1972) acknowledged that "the framers of the Constitution were aware that public meetings were being held in public streets and that the public have come to regard it as part of their rights and privileges as citizens." While doubting a common law basis, the de facto exercise of this right, grounded in continued practice, was recognized. The judgment stressed that "there is a constitutional difference between reasonable regulation and arbitrary exclusion." However, this does not confer an unfettered right to assemble anywhere; as observed in The Chief Secretary To Government v. Khalid Mundappilly (Kerala High Court, 2010), citing Railway Board v. Niranjan Singh (AIR 1969 SC 966), "there is no fundamental right for anyone to hold meetings in Government premises... The exercise of those freedoms will come to an end as soon as the right of someone else intervenes." The right to assemble under Article 19(1)(b) does not mean it can be exercised at any and every place (Himat Lal K. Shah, 1972; The Chief Secretary To Government v. Khalid Mundappilly, 2010).

Balancing with Public Order and Other Rights

The exercise of the right to assemble must be balanced with the state's duty to maintain public order and the rights of other citizens. The Supreme Court in Mazdoor Kisan Shakti Sangathan v. Union Of India And Another (2018 SCC 17 324, 2018) addressed the repeated imposition of Section 144 CrPC to restrict assemblies in Central Delhi. The Court recognized the fundamental right to protest but emphasized that it is subject to reasonable restrictions in the interest of public order. It directed authorities to formulate guidelines that regulate rather than outright ban protests, ensuring minimal inconvenience. This case underscored that "each fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right" (Amit Sahni, 2020, citing Mazdoor Kisan Shakti Sangathan, 2018).

The constitutional validity of Section 144 of the Code of Criminal Procedure (CrPC) as a tool for maintaining public order was upheld in Babulal Parate v. State Of Maharashtra And Othrs (1961 AIR SC 884, 1961). The Court found Section 144 to be a reasonable restriction, designed for temporary measures during emergencies. However, as clarified in Mazdoor Kisan Shakti Sangathan (2018), citing Babulal Parate (1961), Section 144 is intended for preventing public disorder and cannot be used for indefinite prohibition of assemblies. The Calcutta High Court in Rituparna Sarkar Dutta v. The State Of West Bengal & Anr. (2018), citing Madhu Limaye v. Sub-Divisional Magistrate, Monghyr ((1970) 3 SCC 746), also noted that Section 144 CrPC, authorizing temporary prohibitory orders to prevent an imminent breach of peace, constitutes a reasonable restriction upon the freedom of assembly.

Limitations: Indefinite Occupation and Designated Areas

The Supreme Court in Amit Sahni v. Commissioner Of Police And Others (2020 SCC ONLINE SC 808, 2020), concerning the Shaheen Bagh protests, delineated clear boundaries for the right to protest. While reaffirming the constitutional right to peaceful protest, the Court held that "public ways and public spaces cannot be occupied in such a manner and that too indefinitely." It was unequivocally stated that "demonstrations expressing dissent have to be in designated places alone." This judgment emphasized that while democracy and dissent go hand in hand, the exercise of these rights must not impede public order or the rights of other citizens, such as the right of commuters to use public ways. The Court noted, "Our constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties" (Amit Sahni (Shaheen Bagh, In Re) v. State, 2020).

Demonstrations by Government Servants

The question of whether government servants can exercise the right to assemble and demonstrate was addressed in Kameshwar Prasad And Others v. State Of Bihar And Another (1962 SCC 0 1166, 1962). The Supreme Court challenged Rule 4-A of the Bihar Government Servants' Conduct Rules, 1956, which prohibited government servants from participating in any demonstration or strike. The Court found that a blanket ban on demonstrations was unconstitutional, as demonstrations are a form of expression and assembly protected under Articles 19(1)(a) and 19(1)(b). However, it upheld the prohibition on strikes, distinguishing it from the right to demonstrate, as there is no fundamental right to strike. This judgment clarified that government servants are not wholly excluded from the protection of fundamental rights, though reasonable restrictions specific to their service conditions can be imposed.

Regulation, Not Prohibition

A consistent theme in judicial pronouncements is that the state's power concerning assemblies is primarily regulatory. In Himat Lal K. Shah (1972), the striking down of Rule 7 was due to its grant of "unchecked and arbitrary discretion" without guiding principles. The Court observed that Section 33(1)(o) of the Bombay Police Act, 1951, enabling the Commissioner to make rules to regulate assemblies and processions, "may be said to have been enacted in aid of the rights under Article 19(1)(a) and 19(1)(d)." The Madras High Court in Arappor Iyakkam Rep. By Its Managing Trustee Jayaram Venkatesan v. State Of Tamil Nadu (2017 SCC ONLINE MAD 5785, 2017) opined that if authorities apprehend law and order problems, it is open to them to permit a meeting by imposing conditions or providing adequate protection, rather than outright rejection, as the police department is created to tackle such problems.

Reasonable Restrictions: Article 19(3)

The right conferred by Article 19(1)(b) is not absolute. Article 19(3) states: "Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause." The term "reasonable restrictions" implies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The judiciary scrutinizes restrictions to ensure they are proportionate and have a rational nexus with the objectives (public order, sovereignty, and integrity of India) sought to be achieved (Vinayaga Chathurthi Madhya Kuzhu v. State Of Tamil Nadu, 1996, citing Ramji Lal Modi v. State of U.P., A.I.R. 1957 S.C.620; Rituparna Sarkar Dutta, 2018).

The Essence of Democratic Dissent

The judiciary has consistently highlighted the importance of the right to assemble and protest as a vital component of a democratic society. In Bimal Gurung v. Union Of India And Others (2018 SCC 15 480, 2018), the Supreme Court eloquently stated, "an unarmed, peaceful protest procession in the land of ‘salt satyagraha’, fast-unto-death and ‘do or die’ is no jural anathema." It further noted, "a distinguishing feature of any democracy is the space offered for legitimate dissent." This sentiment was echoed in Mazdoor Kisan Shakti Sangathan (2018), where the right to protest and assemble peacefully was described as a "distinguishing feature of any democracy" that "provides space for legitimate dissent." The Delhi High Court in Asif Iqbal Tanha v. State (Nct Of Delhi) (2021) reiterated that "holding peaceful demonstrations by the citizenry in order to air its grievances... is its fundamental right... Legitimate dissent is a distinguishable feature of any democracy." The Madras High Court in Jayaraj .J v. The Chief Educational Officer (2023) went further to state that "The right to protest is an inherent part of speech and inherent facet of right to live guaranteed under Article 21 of our Constitution." However, the Supreme Court in Amit Sahni (Shaheen Bagh, In Re) v. State (2020) also cautioned that "the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy."

Conclusion

The right to assemble peaceably and without arms, enshrined in Article 19(1)(b) of the Indian Constitution, is a cherished fundamental right, integral to the democratic fabric of the nation. Judicial interpretations have consistently upheld this right while simultaneously acknowledging the necessity for reasonable restrictions in the interest of public order, and the sovereignty and integrity of India. Landmark cases like Himat Lal K. Shah, Mazdoor Kisan Shakti Sangathan, and Amit Sahni have meticulously carved out the operational sphere of this right, emphasizing regulation over arbitrary prohibition, the need to balance competing rights, and the impermissibility of indefinite occupation of public spaces. The judiciary's role has been crucial in ensuring that the state does not unduly curtail this right, thereby safeguarding the channels for democratic expression and dissent, while also ensuring that its exercise does not devolve into chaos or infringe upon the rights of other citizens. The jurisprudence underscores a dynamic interplay between individual liberty and collective societal interests, constantly evolving to meet the challenges of a vibrant democracy.

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