• Overused Section 144 reveals frailty of India’s democracy

    Shakuntala Rao

    January 6, 2020

    Image Courtesy: LiveLaw

    January 25, 2011 was a critical day in the past decade. What began as a sit-in at Tahrir Square in Cairo, Egypt, quickly became a revolution where millions took to the streets to protest against Egypt’s president of three decades, Hosni Mubarak. Weeks of protests led to Mubarak’s resignation and in 2012 avowed Islamist and first civilian Mohammad Morsi was elected as the president in a free election. But Morsi’s ouster was quick and by the commander of armed forces Abdul Fattah el-Sisi, a Mubarak protégé, who took over power following weeks of intense public protests against Morsi

    The new military regime under el-Sisi immediately imposed a draconian law essentially banning all protests, sit-ins or gathering of more than ten people in public. According to Human Rights Watch approximately 1,300 people have been killed since el-Sisi came to power as all dissenting voices have been crushed. Mubarak has been exonerated, Morsi died mysteriously in prison, and el-Sisi has had a complete choke-hold on Egypt with no imminent free elections.   

    On the other end of the political and geographic spectrum was Nicaragua and its left-leaning self-proclaimed socialist democrat president, Daniel Ortega. Unlike el-Sisi, Ortega led a peasant-friendly guerrilla warfare in the 1980s against the right wing Nicaraguan government of the dictator Anastasio Somoza Debayle. Ortega was elected president of Nicaragua twice, once in 1984 and then again in 2007. While he always enjoyed the support of the poor, his politics soon veered towards authoritarianism with increasing lack of transparency, oppression of journalists, imprisonment of political rivals, and misuse of state funds by his family. When Nicaragua witnessed its first large scale street protests in April and May of 2018, Ortega came out swinging against the mostly student protestors killing more than 300 and imprisoning thousands. In September 2018, Ortega-controlled Congress expanded the definition of terrorism to include a broad range of crimes such as public protesting and vandalism. Several cases have been filed against protestors as terrorists, the first in this nation’s history. With his wife as the vice president, Ortega now rules Nicaragua with a bayonet having all but abandoned his early claims of democratic socialist governance. 

    We would like to think that the story of Egypt and Nicaragua is not the story of democracies. These countries have historically been either under direct dictatorship or have had poor electoral histories. Functional democracies such as India’s have always been more tolerant of protests compared to authoritarian states. 

    When I was young, visits to Kolkata were marked by memories of peaceful michil or marches for worker’s and union rights. Attending college in Delhi, I participated in protests against police inaction in dowry deaths and eve teasing. We watched as farmers and labourers were allowed to protest various ills of society, sometimes at Ramlila Maidan and times at Jantar Mantar which had become a proverbial site of such gatherings. When I arrived in the United States, first as a foreign student and then as a naturalised citizen, I protested President Ronald Reagan’s anti-abortion laws, President George Bush’s invasion of Panama and Iraq and against the Iraq War of 2003. Many of these protests, in India and the United States, drew large number of people with significant police presence but never did I witness any violence. In all instances, the police kept a respectable distance and the protests received fair and often favourable press coverage.

    The recent photos, videos, and news footage of CAA/NRC protests have been coming fast and furious as these protests have spread. The most violence has taken place in Uttar Pradesh where, until the writing of this column, some two dozen people were dead and thousands in custody including well-known activists and lawyers. Not only are these the most widespread and persistent protests in the country’s post-independent history they have also been most violently opposed by various police forces.

    What has changed?  

    Not unlike Egypt and Nicaragua, India’s current government is increasingly willing to use laws which oppress any and all forms of public dissent. 

    The most frequent one being used is the arcane Section 144 which was imposed a record ten times in eight months of 2019. Section 144 of the Criminal Procedure Code of 1973 authorises the magistrate of a state to issue an order to prohibit the assembly of four or more people in an area. Section 144 is meant to be imposed only in “extreme” cases of danger where trouble or damage to human life or property is anticipated. Such imposition might be necessary if the police finds a mob, having assembled, is being encouraged by incendiary speeches to engage in violence and arson, and the state is expected to act preventatively. Section 144 was never to be interpreted to suspend the fundamental right of entire populations—as in the case of Uttar Pradesh with its 204 million citizens who find themselves under such a decree. What we have witnessed thus far is the use of section 144 to stifle peaceful assembly which makes the law no longer a shield against imminent violence but a state-sanctioned method of preventing expression of dissent.

    Like in Egypt where the police have been given vast leeway to shoot at sight any persons even having the appearance to be protesting, the Uttar Pradesh government seems to have tacitly sanctioned using of live ammunition on unarmed civilians. The worst case scenarios, in the past, had been the use of lathis and tear-gas—and infrequently firing in the air—to disperse an unruly crowd, but the level and nature of force being used today has become dramatically deadlier. Reports suggest that the police have directly fired on civilians and all deaths and injuries have come from police gun violence against the protestors rather than vice versa or between protestors. 

    Whatever the multifarious reasons for these protests, India’s Constitution is clear: Article 19(1)(b) guarantees that all citizens “shall have the right to freedom of speech and expression, assembly, associations, movement, residence and practising any trade, business, occupation or profession.” The right to assembly is a fundamental democratic right—and it is being usurped in unprecedented ways. It is the right to dissent—and to express it via peaceful demonstrations—which makes a democracy functional and sets it apart from authoritarian states like Egypt and Nicaragua. 

    Besides any critique of CAA/NRC, Indian government’s coercive effort to curtail public assembly makes India a brittle democracy.  

    The author teaches at the Department of Communication Studies, State University of New York, Plattsburgh. The views are personal.

    First published in Newsclick.

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