[This is a Guest Post by Karan Gupta.]
In a society where policy brutality and clamp down on free speech is common, the Constitutional Court of Uganda recently affirmed a few commonsensical principles on free speech, the right to assemble and public order. On 26 March 2020, the Constitutional Court of Uganda declared Section 8 of the Public Order Management Act 2013 (POMA) unconstitutional (4-1 majority). Section 8, inter alia, conferred upon the Inspector General of Police (IGP), or any officer authorized by them, vast discretionary powers to: (i) Withhold permission to hold a public meeting or stop a public meeting where it is “held contrary to the Act”; (ii) Use force to disperse public meetings; and (iii) Impose criminal liability on organizers and participants of such public meeting. The Act defines a ‘public meeting’, empowers the IGP to regulate their conduct (S. 3), and requires every ‘organizer’ to give prior notice (at least three days prior and no more than fifteen days prior) of the proposed public meeting with details specified therein (S. 5). An unplanned, unscheduled and unintended public meeting is exempt (S. 7).
I explore, in seriatim, the constitutionally flawed approach, the progressive observations of the constitutional court, missed opportunities, and lessons for India.
Preliminary Point: Constitution adjudication – in personam?
In a previous case, Muwanga Kivumbi v Attorney General, the Constitution Court had declared Section 32(2) of the Police Act 2006, which empowered the officer in charge of the police to pass an anticipatory order prohibiting the convening of an assembly/procession if there were “reasonable grounds for believing” that there would be a breach of peace, unconstitutional. The Court had held that the subjective and anticipatory power was prohibitory in nature (as compared to a regulatory power, which is permissible) and ultra vires Arts. 20(1) (Fundamental Rights are inherent and not granted by the state) and 29(1)(d) (Freedom of assembly and demonstration).
The challenge in HRNU lay in narrow confines. Art. 92 of the Constitution restricts the Parliament from passing a law which “alters” a decision of the Court “as between the parties to the decision or judgment”, thus barring the alteration of rights that have accrued to parties to a case vis-à-vis each other (in personam). The petitioners in HRNU highlighted that one petitioner in Muwanga was also a petitioner before the Court in HRNU, and that Section 8 of the POMA was para materia to Section 32(2) of the Police Act. Consequently, by enacting Section 8, the legislature had unconstitutionally attempted to alter the decision in Muwanga [p. 7]. Despite a broad challenge to the POMA on a myriad of constitutional provisions, the petitioners restricted their oral arguments to only Art. 92 and Section 8.
Justice Cheborion evaded the limited ambit of Art. 92 and the nuanced differences between the two provisions (Sections 32(2) and 8)) and held that Art. 92 also applies to decisions made in public interest, and not only in relation to parties to a previous litigation. This approach was adopted by two other judges [p. 42, 50, 69] and raises two concerns: First, this militates against the plain and ordinary meaning of Art. 92 and renders nugatory the latter part restricting its application to parties in a litigation. The decision in Muwanga (as well as the present case) concerned a constitutional matter on the ambit of constitutionally permissible police powers to control assemblies, demonstrations and peaceful protests. Such matters are, by their very nature, in rem proceedings – a declaration of invalidity does not operate only between parties, but to everyone. Art. 92 which seeks to protect rights that accrue to parties from a litigation (from contract law or property law for example), has no applicability in such cases. Furthermore, the legislature did not seek to alter the decision in Muwanga, but enact a new provision different from Section 32(2) of the Police Act.
Second, the Ugandan Parliament may alter the basis of decision in Muwanga by amending the provisions on which the decision turned [i.e. Arts. 20(1) and 29(1)(d)]. However, the Court held that the decision in Muwanga could only be altered, inter alia, by amending Art. 92 [p. 19]. This flows from its erroneous reading and application of Art. 92. The right approach is for the Court to, absent any constitutional amendment, employ in its assessment the broad constitutional principles laid down in Muwanga and other relevant constitutional provisions. However, the court restricted its assessment to whether Section 8 is an “incarnation” of Section 32(2) [p. 18]. Only two judges avoided this pitfall, though without adequate explanation [p. 54, 75], analyzed the entire Act and declared it unconstitutional [p. 61].
Public interest, public order and free speech
Art. 29(1) guarantees to every person the freedom of speech and expression, assembly and demonstration, and association. While Art. 79(1) empowers the Parliament to enact laws for the maintenance of order, both provisions are silent on the permissible restrictions on fundamental rights. The answer is found in Art. 43 which stipulates that “no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest”. According to Ugandan precedent, there is no justification to restrict or abrogate a fundamental right where the its exercise comports with the restrictions in Art. 43. Art. 43(2) clarifies that the term ‘public interest’ shall not permit any limitation “beyond what is acceptable and demonstrably justifiable in a free and democratic society”.
The scheme of fundamental rights chapter is significant for two reasons: First, barring the general restrictions in Art. 43 and a few other provisions which specify restrictions therein, there are no specified grounds to restrict fundamental rights as compared to other Constitutions; Second, under Art. 43, the principles of a free and democratic society are accorded primacy and any restriction must comport with this requirement. While the Parliament may legislate on the maintenance of public order (which Muwanga held is in public interest), any restriction on the freedom under Art. 29 must be demonstrably justifiable in a free and democratic society.
Viewed in the above context, the Court (three or more judges) made three significant observations:
First, on the ambit and hierarchy of free speech protection, the Court held that speech, public processions and protests, irrespective of their nature, are entitled to equal protection (i.e. social, religious, political, economic, and so on) [p. 20, 57]. This is distinct from the preferred position doctrine which accords higher protection for political speech in American constitutional jurisprudence. The context which informed this analysis is granting equal protection to political assemblies and speech which are a common target of the political establishment in Uganda;
Second, on public order, the Court held that where a protest or public gathering is peaceful, “it does not matter that it may disruptive or even inconveniencing”. [p. 21] This is significant as any society committed to the freedom of speech and assembly recognizes that some disruption is no ground to restrict or deny the right. Beyond toleration, the celebration and protection of speech and assembly is linked to justice, equal concern and mutual respect of every individual. Recall here the judgment of the Madras High Court which affirmed that “public streets are the natural places for expression of opinions” (analyzed here); and
Third, the Court held that Section 8, in so far as it authorizes the police to prevent a public meeting, empowers them to impose a blanket ban and require prior permission for every gathering [p. 23, 25]. The Court held that this violates Arts. 29 and 43 and the state failed to demonstrate that the power conferred by Section 8 is both regulatory and acceptable and demonstrably justifiable in a free and democratic society. This is significant for three reasons:
- The burden of proof to justify the restriction on a constitutionally guaranteed right falls on the state. However, by vesting in the police the vast discretion to prohibit or prevent the freedom of speech and expression, this burden stands reversed. Every individual is then required to justify to the police why the exercise of their constitutional right will not or does not impair public order or contravene any provision of POMA. Justice Elizabet rightly noted that there is a presumption that every assembly and exercise of free speech is peaceful [ 61] and a mere apprehension of violence does not constitute a sufficient basis to prevent or prohibit an assembly, gathering or protest;
- The Court highlighted that no conditions were laid down for the exercise of the power [ 98], vesting in the police vast discretion to determine which public meetings may be prevented or forced to disperse. As noted by the American Supreme Court in Grayned v Rockford, such unbridled discretion is accompanied by the “attendant dangers of arbitrary and discriminatory application.” Where the police are an instrumentality of the state, the possibility of partisan politics to curb dissent and anti-establishment sentiments cannot be discounted. This is recognized by two judges in HRNU who documented the arbitrary exercise of power by the police to protect government interest and impose popular morality [p. 22, 100]; and
- Flowing from above, the unregulated blanket discretion to prohibit assemblies does not comport with the requirements of the ‘constitutional yardstick’ that every restriction on a fundamental right must be necessary and The police must justify, in each specific instance, why the prohibition of an assembly is the least restrictive measure and proportionate to the possible harm sought to be prevented (this post discusses context-specificity and proportionality in the context of the internet shut-down judgment in Kashmir). The judgment, despite lacking in the explicit use of this yardstick, comports with this requirement.
Maintaining public order
How then must the State maintain public order? Justice Cheborian (with whom three other judges agree) answered this. He held that where the police anticipate a breach of peace, there is a positive obligation on the state to provide protection and police deployments and not prohibit the assembly [p. 17, 60, 90]. The Court held that the duty to maintain public order “cannot be discharged by prohibiting sections of the public from exercising their constitutionally guaranteed rights to demonstrate peacefully or hold public meetings of any nature.” This is sound as it reaffirms: (i) the holding in Muwanga that the state must provide channels and structures to ensure that legitimate protest “find voice”; and (ii) the principle that the failure of the state to provide adequate security cannot be a ground to deny people the freedom of speech and assembly. Furthermore, the Court noted that the state is also empowered to act in various situations (unlawful assemblies, riots, malicious damage against public order) by the Penal Code of Uganda [p. 33,89] and may, in accordance with the law, arrest or take appropriate action against any perpetrator [p. 23, 32].
Despite the significant observations above, the Courts missed out on two opportunities:
First, only Justice Kenneth attempted to specify which values underlie a free and democratic society – inter alia, the acceptance and accommodation of a variety of cultural, religious and political beliefs and free political debate, human dignity and freedom of speech, association and movement [p. 90]. The Court could have laid down a comprehensive base for the protection of free speech and association as an values inhering in a free and democratic society; and
Second, despite the challenge in the petitions to numerous provisions of the Act, the Court examined the validity of only Section 8 (admittedly, only this was pressed by the petitioners). Only two judges examined the deeply inherent flaws in the entire Act to conclude that it was ultra vires a myriad of constitutional provisions. In the end, these draconian provisions were left standing and the Court concluded that guidelines must be framed for the exercise of powers under the Act [p. 33]
India and Section 144
Recall here that Section 144 of the Indian Code of Criminal Procedure 1973 confers wide discretionary powers upon executive magistrates to prohibit assemblies. This is regularly invoked on the basis of an apprehension that there would be a breach of peace or public order. The Constitution Court in Muwanga struck down a similar provision [Section 32(2) of the Police Act] on the ground that it was prohibitory in nature and reversed the burden of proof – every individual was required under it to justify why the exercise of the right to free speech and assemble would not cause a breach of public order. The Court held that this suppresses the “powerful tool” of peaceful assemblies and protests when a free and democratic society must encourage the “greatest possible freedom of expression.” This reasoning was reiterated in HRNU to strike down the wide power to impose blanket anticipatory bans on assemblies under Section 8 of the POMA.
The power under Section 144 [similar to Section 32(2) and Section 8] allows the imposition of anticipatory bans and is prohibitory in nature This falls foul the constitutional standards espoused in Uganda. Indian courts have attempted instead to narrow the discretion conferred by the provision. The judgment of the Supreme Court in Anuradha Bhasin (internet shutdown in Kashmir) recently affirmed that a valid exercise of power under Section 144 is premised on: (i) the existence of objective material facts which form the basis of the opinion formed by the Magistrate; (ii) its general invocation being confined to a specific area and issue; (iii) the existence of a demonstrably urgent situation; (iv) such measure being the least restrictive course of action; and (v) compliance with proportionality standard.
Despite these restrictions, the burden of proof continues to rest on individuals as magistrates are empowered to impose anticipatory orders prohibiting any assembly. Even where these orders are challenged before courts, the preliminary burden falls on the individual (as a petitioner) to prove that the issuance of the order violated their fundamental right. This was most evident in December 2019 where when faced with the legitimate expression of dissent against the Citizenship Amendment Act, numerous orders under Section 144 were imposed across the country without any well-founded apprehension of violence, citing inconvenience.
Despite its failings, the judgment in HRNU held that there is “absolutely no legal authority” to stop peaceful expression on the basis of an alleged breach of peace [p. 22] and builds on Muwanga to add to the growing jurisprudence that restrictions on the right to free speech and assembly are exceptions which the state is required to justify in every case prior to its imposition, reaffirming a commitment to a culture of justification, not authority. With this, it also provides guidance to India in the exercise of the power under Section 144. While Section 144 remains operative, one can only hope that the government of the day responds proactively to the protection of the right to free speech and assembly in scrutinizing more closely the impositions of these orders in the first place.