Our Rights to Assemble and Protest

Public assemblies play a crucial role in holding the authorities accountable and to voice demands on issues that matter. While it is important that a balance be struck between citizens' right to assemble and other counterbalancing interests, the very essence of the right to assemble ought to be safeguarded. Section 29 of the Dhaka Metropolitan Police Ordinance 1976, and section 144 of the Code of Criminal Procedure 1898 (CrPC) grant the police commissioner and other authorities the power to impose restrictions on public assemblies if deemed necessary. The central question here is to what extent can the authorities exercise this power.

Article 37 of the Constitution grants citizens the right to assemble and participate in peaceful public meetings and processions without arms. However, Article 37 also allows the government to impose reasonable restrictions on such gatherings in the interest of public order or public health.  In the case of Oali Ahad v Govt. of People's Republic of Bangladesh (1974), one Oali Ahad, a political activist from Bangladesh, challenged an order issued under section 144 of the CrPC. This section allows certain authorities to issue orders to prevent disturbances of public tranquility and other similar situations. The petitioner challenged the order, arguing that it violated his fundamental rights, specifically the right to peacefully assemble and participate in public events, as Article 37 of the Constitution guaranteed. He argued that the order, which banned the exercise of these fundamental rights for an indefinite period, was unreasonable and not in the interest of public order.

To assess the reasonableness of restrictions on these rights, the court highlights the importance of establishing a clear connection between the restricted acts and potential harms to public peace. Additionally, restrictions under section 144 of the CrPC and similar provisions restricting public gatherings must directly relate to maintaining public order.

The High Court Division (HCD) of Bangladesh held in favor of the petitioner, saying, "It would be inconsistent with this expression of the intention of the Legislature that a Magistrate should pass under this section an order meant to have more than a temporary duration…such restraint ought clearly not to be indefinite in terms or to have effect beyond the urgency which it was intended to provide for."

The HCD also stresses the need to balance the fundamental right to assemble and to maintain public peace. To assess the reasonableness of restrictions on these rights, the court highlights the importance of establishing a clear connection between the restricted acts and potential harms to public peace. Additionally, restrictions under section 144 of the CrPC and similar provisions restricting public gatherings must directly relate to maintaining public order. They should not be based on hypothetical or remote considerations. Unless there is a clear and direct connection between the restriction and the preservation of public order, such limitations will be unreasonable and against the interests of public order. Lastly, the judicial observation clarifies that the power exercised under section 144 ought to be a judicious one, subject to scrutiny for its necessity, effectiveness, and scope when applied.

The importance of striking a balance between safeguarding citizens' fundamental rights and maintaining public peace is crucial. The case of Oali Ahad exemplifies the importance of this delicate equilibrium, particularly in the context of public gatherings and assemblies. It underscores that while authorities possess powers to restrict such gatherings in the name of public order, they must be firmly grounded in concrete evidence of an immediate threat rather than vague or hypothetical concerns.

The author is a student of Law, North South University.