Justice Markandey Katju
The recent Bombay High Court decision upholding police refusal to permit some people to peacefully assemble and protest atrocities in Gaza is against Article 19(1)(b) of the Constitution of India which gives citizens of India the right to assemble peacefully and without arms.
The Bombay High Court judges who heard the case said that people in India should focus on domestic issues, rather than foreign ones. Links here, here, here and here
The High Court advised the petitioners to ‘show patriotism’
But does patriotism mean that one cannot protest over horrors in a foreign country?
The Wire a well known Indian portal, has said that the Bombay High Court’s observations smack of political bias in line with the Central Government.
In my opinion, the Bombay High Court’s view amounts to amending Article 19(1)(b) of the Indian Constitution, making it read ” All citizens have the right to assemble peacefully and without arms, provided they only discuss domestic, not foreign issues ”.
Only Parliament, by two-third majorities in both Houses, can amend the Constitution, not judges, vide Article 368. So the Bombay High Court judges have really encroached into the domain of Parliament, violating the broad separation of powers in the Constitution, and their view amounts to judicial overreach, vide Divisional Manager, Aravali Golf Club vs Chander Haas ( see from para 17 of the judgment .
Moreover, the preamble to the Indian Constitution says that India is a democracy. But what kind of a democracy is it where citizens are not allowed to peacefully assemble and discuss all issues, whether domestic or foreign?
If the view of the Bombay High Court is accepted, another Court in India, taking the cue from the Bombay High Court, may go further and interpret Article 19(1)(b) to mean that citizens have the right to assemble peacefully and without arms, provided they do not criticize the government.
What then will remain of democracy?
C. Countercurrents
