Representative Image Only

Andhra’s draconian government order gone: A win for civil liberties

The judgment is a good example of judicial review coming to the rescue of citizens’ civil liberties. This law could be seen as the ruling party’s attempt to curb the dissent of the opposition and suppress deliberative democracy.

What did the impugned government order do?

AS a knee-jerk reaction to the tragic loss of eight lives in Kandukuru in the Nellore district of Andhra Pradesh in December last year, the state government issued Government Order. Rt.No.1, Home (Legal.II) Department (GO), dated January 2, 2023, which in effect banned the conduct of “public meetings/gatherings on roads and road margins”.

Many viewed this as a draconian step by Chief Minister Jagan Mohan Reddy’s government to prevent opposition leaders from conducting rallies or public meetings.

The irony in this whole saga was that the current chief minister, when he was in opposition, undertook the ‘Praja Sankalpa Yatra’, covering 3,648 km in the state, conducting various political meetings.

This GO was challenged by various political leaders of the opposition parties at the High Court of Andhra Pradesh. The high court initially gave an interim stay on the operation of the Order and finally declared it to be unconstitutional on May 12. This article analyses the judgement rendered by the division Bench of the High Court setting aside the GO from the lens of the principles of administrative law applied in this judgement.

Also read: Protests are a legitimate use of public spaces

What were the grounds for legally challenging the GO?

Though the GO was challenged on the basis of the fundamental rights of freedom of speech and expression, and the freedom to assemble peaceably without arms under Article 19 of the Constitution of India, the reliance of the court on the principles of administrative law such as ‘taking away the discretion, ‘subordinate legislation beyond the scope of the Act’, ‘proportionality’ and ‘lack of guidance’ while setting aside the GO is noteworthy.

The Police Act only intends to regulate processions or assemblies on public roads and not ban them altogether. 

The GO was issued under the aegis of the Police Act, 1861 which allows for the regulation of rallies or public assemblies by the police. According to Section 30 of the Act, the police can prescribe a route and time the processions may pass. It also provides that a licence should be taken from the police only if in the opinion of the magistrate of the district or of the division, the procession or the assembly, if uncontrolled, would cause a breach of peace. 

While granting the above licence, the police may prescribe conditions under which such assemblies or processions can take place. In case any of the conditions are not met by the licencees, the police can order the processions to be stopped or the assemblies to be dispersed, and in the event of disobeying the order, the gathering would be considered an unlawful assembly. All these provisions make it clear that the Police Act only intends to regulate processions or assemblies on public roads and not ban them altogether.

Also read: Can the State Curb All Protests if Some Turn Violent?

Why did the high court strike down the GO?

But the impugned GO goes contrary to the intention of the Act. It states that since national highways and state highways are essential for travelling and transportation of logistics, “it is therefore ideal that no licence be granted for any application seeking permission to conduct the meeting on state highways and national highways”. This statement has the effect of banning processions or assemblies, rather than merely regulating them.

Also, it intends to influence and take away the discretion given to the police in granting the license by the state government. When the government (the GO was issued by the state’s principal secretary in the name of the governor) itself says that licences should not be granted, the police are very unlikely to go against those orders. This is ultra vires of the Act because the Act contemplates taking off the license only in situations where, in the opinion of the magistrate, if it is uncontrolled, it would amount to a breach of peace.

This means the licence is not mandatory for every procession or assembly and before asking the parties to apply for the licence, there should be pre-assessment by the magistrate that the procession or the assembly is likely to cause a breach of peace. When the GO concludes that it is not ideal to grant the licence at all, all these mechanisms or safeguards provided by the Act are disregarded by it.

A blanket ban, without due regard to the number of participants, the mode of processions, purpose, length of the procession or rally, route, and place of assembly, among other things, would violate the principle of proportionality.

The court also opined that a blanket ban, without due regard to the number of participants, the mode, purpose and length of the procession or rally, route, and place of assembly, among other things, would violate the principle of proportionality.

The GO also provides that the police may, in “rare and exceptional circumstances”, consider granting the licence. But, in the opinion of the court, there is no executive guidance provided in the GO to ascertain what amounts to a ‘rare and exceptional circumstance’. We do not know if a political rally during the election period is ‘essential’ or not. Can a rally against the violations of human rights or a march to show solidarity with victims in a rape case be considered an ‘exceptional circumstance’? As the said term is vague and very subjective, it would amount to an arbitrary use of power, which is impermissible in a State governed by the rule of law.

Also read: A constitutional appraisal of non-violent disruptive protests

What is the significance of the judgment?

This case is a good example where judicial review has come to the rescue of citizens’ civil liberties. As this law could be seen as the ruling party’s attempt to curb the dissent of the opposition and suppress deliberative democracy, this whole situation alludes to what American political scientist and jurist Alec Stone Sweet calls the Constitution as a contract negotiated among the political elites. Here, judicial review is used as a ‘political insurance’ by opponents not in power to keep political elites or the ruling class in control and to ensure that they do not destroy the spirit of the Constitution.

It is important for those in power to respect institutions and Constitutional traditions because when the tide changes and when they are no longer in the ruling class, it is the same courts, laws or conventions that would help them.

Click here to view the full judgment of the Andhra Pradesh High Court in Kaka Ramakrishna versus The State of Andhra Pradesh.

The Leaflet