Delhi police cannot use preventive laws to silence dissent | LME 170 | Dhanya Rajendran

Imagine you are on your way to a protest.

You haven't reached the protest site.
You haven't broken any law.
In fact, you haven't even joined the gathering.

And yet, the police stop you.

Maybe at the airport, outside your home, or on your way there.

They put you in a vehicle. And hours later, they let you go.

That is what happened to people in New Delhi in the crackdown on protests against Chief Election Commissioner Gyanesh Kumar.

And it wasn't just protesters.

Journalists covering the protests were detained.
Lawyers trying to reach people in custody were stopped.
Phones and cameras were seized.
People were taken away from the protest site, and in some cases, before they even got there.

 The Delhi Police say they were maintaining law and order.

But there is a fundamental question here:

How much power does the police have to stop a protest before it even begins?

And when does preventive policing become a way of preventing dissent?

We looked at what happened in Delhi, what the law allows, and where the police may have crossed the line.

Let me explain.

Nearly 30 journalists were detained. We spoke to them.

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The Delhi police’s action in New Delhi

In the last few weeks, we have all seen how sweeping the Delhi Police’s response to the protests against CEC Gyanesh Kumar has been.

Section 172 of the BNSS says that a police officer can detain or remove a person who is resisting, refusing, ignoring or disregarding a lawful direction given by the police.

But there is an important distinction here.

This provision does not give the police a blanket power to detain anyone they want for 24 hours.

The provision says they must be taken before a magistrate, or, in petty cases, released within 24 hours.

So where is the grey area?

Senior Advocate Sanjay Hegde has pointed out that Section 172(2) is new. There was no equivalent provision in the old CrPC that specifically allowed the police to detain or remove someone for refusing to follow a police direction.

Hegde has also pointed out something else: the law around the safeguards applicable to this kind of short-term detention remains largely untested.

And that brings us to the distinction between arrest and detention.

If you are formally arrested, constitutional safeguards kick in. Article 22 gives an arrested person the right to know the grounds of arrest, the right to consult a lawyer and the right to be produced before a magistrate within 24 hours.

But what happens when the police say: we haven't arrested you. We've only detained or removed you?

As Hegde explained, the person is temporarily not allowed to leave, but is not formally arrested either.

And this distinction matters because the safeguards and legal scrutiny associated with a formal arrest will not apply during a detention. 

Also also think about what that means during a protest.

You can be stopped from reaching the protest site. Now multiply that across hundreds or thousands of people.

The effect can be significant.

The protest is disrupted without arresting anyone.

So the question is not whether the police should have powers to maintain public order. Of course they should.

The question is: when the state takes away your freedom, what legal safeguards apply?

The next question in front of us: Can the police stop you before you reach a protest?

Delhi Police has also invoked Section 163 of the BNSS, which allows authorities to impose urgent restrictions to prevent threats to public order. 

Look at what happened at Delhi's Indira Gandhi International Airport.

In the case of CJP leaders Abhijeet Dipke, Saurav Das and Ashutosh Ranka- they were picked up even before they could get off a plane.

There were similar reports of student leaders, including members of AISA and SFI, being intercepted at their doorsteps, in trains, and generally away from the main protest locations. Political commentator Dhruv Rathee also was not allowed to step out of his house.

Section 163 does not give the police the power to detain anyone, anywhere, simply because they suspect the person might join a protest. 

While the law allows preventive action in certain circumstances, the police must have a legal basis for it. The possibility that someone may attend a protest is not, by itself, enough to justify their detention.

The crackdown has also affected people who weren't there to protest at all, but to provide legal assistance or report on what was happening.

Senior Advocate Shadan Farasat was manhandled and dragged by Delhi Police personnel while attempting to provide legal assistance to detained citizens. 

People in police custody need access to lawyers to protect their rights. When lawyers trying to help them are themselves caught up in police action, what will detainees do?

Then there are the journalists.

The Network of Women in Media, the Free Speech Collective and the Committee to Protect Journalists, have documented reports of journalists being detained while covering the protests. The reports refer to at least 35 working journalists being affected.

Journalists have said they were bundled into police buses even after identifying themselves as members of the press.

Police seized phones, cameras and broadcasting equipment without providing the required documentation. Some journalists have alleged that they were pressured to delete footage before being released.

Reporting on a protest does not make a journalist a participant in an unlawful assembly. Nor can the police seize equipment or force someone to delete footage without a legal basis.

And the consequences go beyond individual journalists being affected. Such actions make sure that there is no proper documentation of how things unfolded.

There are also questions about the detention vehicles used by the cops.

Some have described these vehicles as cage-like fitted with heavy iron grilles, wire mesh and locked compartments. Activists, including AISA's Neha Bora, have shared footage and accounts of conditions inside these buses, with detainees alleging that they were packed into vehicles for hours.

The Supreme Court’s guidelines in the D.K. Basu case lay down safeguards to prevent custodial abuse and arbitrary arrests. The police are responsible for the safety of anyone in their custody, regardless of the grounds on which they were detained.

But here, many protesters have alleged that they were dragged or handled by police personnel. Women protesters were hit by male police as female officers were not present. 

Another concern is what happens when people are released.

Several protesters have alleged that they were dropped off in distant areas, including near city borders, and left to find their own way home.

Being detained for hours and then released late at night in an unfamiliar location, potentially without access to a phone or transport, raises obvious safety concerns. The police cannot ignore their responsibility for a person's welfare simply because the detention has ended.

Now 18 petitions have been filed before the Supreme Court. Together, these petitioners are challenging the manhandling and arbitrary detention of lawyers, the holding of over 37 working journalists, and the widespread use of illegal house arrests, mass transit closures, and internet shutdowns.

The Delhi Police have defended their actions as lawful preventive measures necessary to maintain public order and protect important installations in the capital.

The court must examine that defence against the specific facts and the constitutional protections at stake. 

The police must be able to prevent genuine threats. But they must also be able to explain the legal basis for their actions and demonstrate that they have complied with constitutional safeguards.

The bottom line is this: 

The Constitution protects peaceful assembly under Article 19, subject to reasonable restrictions. Article 21 protects life and personal liberty.

These protections are not just for people whose opinions the government agrees with. They matter most when citizens are challenging those in power.

The existence of a law is not, by itself, proof that every action taken in its name is lawful.

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Produced by Megha Mukundan, script by Pooja Prasanna, edit by Nikhil Sekhar, camera by Ajay R