Activists who undertake to keep the peace to end their detention should be able to keep pressing their political demands, provided they do so lawfully. When authorities cite repeated protest attempts to justify continued imprisonment, the court must ask whether the duty to maintain peace is eclipsing the right it is meant to protect.
The question has grown urgent after authorities sent Cockroach Janta Party (CJP) leaders Saurav Das and Ashutosh Ranka to judicial custody for two more days on Monday (October 19). Their detention and later judicial custody at Tihar jail followed protests against Chief Election Commissioner (CEC) Gyanesh Kumar at Jantar Mantar, whom authorities had removed from its designated protest venues. Their judicial custody now runs until the afternoon of October 21.
Also read: CJP alleges deliberate delays in release of Ranka and Das
In the October 19 order, Special Executive Magistrate (SEM) Ritu Raj records the police’s allegation that the two leaders breached October 11 undertakings they gave to secure their liberty from detention by renewing calls to protest at Jantar Mantar, a venue that was designated earlier and later denotified. The defence for the two accused, however, said neither issued a protest call after October 10 and that both went individually. After hearing both sides, the magistrate found a deliberate breach of the condition they agreed to and said their conduct showed no respect for the law. He, therefore, rejected their assurance that it would not be repeated.
Maintaining peace and the right to assemble
Article 19 protects free expression and peaceful, unarmed assembly, while permitting reasonable restrictions under Article 19(2) in the interests of public order. Peaceful conduct is thus part of the constitutional guarantee itself. The question is how restrictions can protect public order while preserving a meaningful opportunity to exercise the right. Courts have interpreted the word ‘reasonable’ in the Article to suggest proportionality.
In Kameshwar Prasad v State of Bihar (1962), the Supreme Court struck down a blanket prohibition on demonstrations by government servants. It recognised peaceful demonstrations as protected expression and assembly, requiring a close, reasonable connection between the conduct restricted and the public disorder apprehended. The authorities could regulate demonstrations likely to cause disorder, but a prohibition extending to harmless demonstrations would be disproportionate to that offence of breaching peace.
Also read: Can Delhi Police take Jantar Mantar off the protest map?
The availability of another venue is relevant to assessing the police’s case. It also raises a question about the remedy: could compliance with a lawful venue restriction secure release and allow political activity to continue? Even where earlier conduct gives grounds to distrust a fresh assurance, the reasons for rejecting it should address whether the proposed condition to not breach peace is unreasonable.
Testing the apprehension
A useful example comes from Medha Patkar v State of Madhya Pradesh (2007). Narmada rehabilitation protesters were arrested and detained under preventive provisions. Police alleged that activists blocked a road and manhandled officials, thus leading to apprehension that the situation would go out of control.
The Madhya Pradesh High Court concluded that the protesters had been arrested because they refused to withdraw their agitation, held their arrest and detention unconstitutional, and awarded compensation.
In the present case, the published order’s silence on the dates and contents of the disputed renewed protest calls is noteworthy. It also records an anonymous message to the previous magistrate without explaining how it connects to either detainee. An allegation of intimidation against the accused deserves investigation, with evidence establishing their guilt.
Also read: Tiranga protests: Tricolours, jostling and chants: Delhi’s night of flash stirs
The Supreme Court addressed the relationship between preventive powers and liberty in Madhu Limaye v Sub-Divisional Magistrate, Monghyr (1970). A seven-judge bench upheld peace-bond provisions while insisting on safeguards. Some inquiry into the truth of the allegations was necessary before demanding an interim bond and ordering custody for failure to furnish it. Preventive measures required definite findings and recorded reasons by the police.
The October 19 order raises several questions about the detention of the two leaders. What specific evidence did the authorities submit to justify their ongoing judicial custody?
The state can act before an anticipated offence occurs, but the reasons must be open to challenge. Otherwise, the police would be tempted to treat persistent dissent as sufficient ground to allege danger and justify extending custody.
The conditions governing release
The present proceedings invoke Sections 126 and 170 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). Section 126 permits proceedings to require security for keeping the peace. Section 170 authorises preventive arrest when police know of a plan to commit a cognizable offence, for which arrest without a warrant is permissible, and consider that it cannot otherwise be prevented. Detention beyond 24 hours requires a legal basis.
An interim peace bond under Section 135(3) requires an inquiry to have begun and written reasons for immediate measures; custody is linked to failure to execute it. Imprisonment for breach of a final peace bond under Section 141(1)(b) requires proof of breach and recorded grounds. The provision identifies the magistrate who made the original order, or their successor, as the authority competent to act. The original bond and the legal basis invoked for continued custody therefore require examination.
The October 19 order raises several questions about the detention of the two leaders. What specific evidence did the authorities submit to justify their ongoing judicial custody? Furthermore, how do alternative protest locations compare in terms of visibility and their impact on political expression? Additionally, what measures are in place to ensure the right to protest is not unduly constrained under the guise of preserving public order?
Balancing public safety with the fundamental rights to free expression and assembly is not merely important; it is essential to a thriving democracy.
Courts must consider verification of sureties alongside safeguards for release. In Aldanish Rein v State of NCT of Delhi (2018), the Delhi High Court directed release on a personal bond pending police verification of sureties. It required follow-up where a release order failed to bring someone out of jail. A personal bond places the undertaking on the person being released.
Here, the magistrate rejected the sureties after questioning them, raising an issue distinct from a delay in verification. Even so, the judgment makes alternatives to continued incarceration an important consideration when defects in sureties obstruct release.
The wider constitutional issue remains whether a peace undertaking preserves a practicable way to continue dissenting. Each additional day in custody removes organisers from an unfolding movement and may deter their followers. The duty to maintain peace should regulate how citizens protest while preserving their freedom to organise, assemble and press their demands.