Andhra HC’s model for shielding citizens’ rights

May 28, 2023 08:06 PM IST

The HC’s judgment, which reaffirmed the right to protest, is an excellent example of the judicial safeguarding of rights against executive impunity

Earlier this month, the high court (HC) of Andhra Pradesh delivered an important judgment reaffirming the rights of citizens to protest, and to assemble in public spaces. At the beginning of the year, the state government had passed an order, stating that licences for conducting meetings on state or national highways would only be granted in rare and exceptional cases, and with reasons recorded in writing. According to the government order, the reason for this was a spate of accidents, accompanying such meetings or assemblies.


This order was challenged before the HC. It was argued that in the guise of regulating public assemblies, the order effectively operated as a ban. Under the existing law – the police act – licences were meant to be required only in cases where a breach of peace was anticipated, and for the purposes of setting out the conditions under which the assembly could take place to prevent such breaches. The government order, on the other hand, was wielding the licence requirement as a vehicle of prohibition. It was also a disproportionate measure, as the problem of accidents could be resolved in ways that did not require an outright ban on public assemblies.

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The HC agreed with these arguments and struck down the order as unconstitutional. Chief justice (CJ) Prashant Kumar Mishra (who has since been elevated to the Supreme Court) located the right to hold meetings and assemblies on public roads within the sweep of modern Indian history: Such assemblies had been integral to the freedom struggle, and furthermore — in the specific context of Andhra Pradesh — to the history of the state. CJ Mishra, thus, held that the fundamental rights to freedom of speech and expression and assembly included the right to exercise those freedoms in public spaces (without which they would become illusory).

Having thus established the existence of the right, the HC went on to note that the government order essentially acted as an effective ban, by taking away the discretion of local police officers to determine when a licence was required, and upon what conditions. It, therefore, amounted to an executive takeover of when and how fundamental rights could be exercised, and not only that, in using phrases such as “rare and exceptional” without defining them, the order essentially vested vast and unconstrained discretion in the executive.

This level of unchecked discretion — amounting to arbitrariness — was enough of a ground to strike down the order. The HC, however, went further: It deployed the doctrine of proportionality to substantively review the order. The doctrine of proportionality is a four-step test that requires the State to demonstrate multiple justifications for infringing a fundamental right (such as, for example, a rational relationship between the restriction and the goal, the restriction being the least restrictive measure for achieving the goal, and so on).

The HC began its analysis of proportionality by noting that a restriction on an important fundamental right would have to be reviewed strictly, with a high burden resting upon the State to justify its actions. In the present case, it found that the government order failed on the second step of the proportionality test — the requirement that there be a rational relationship between the restriction and the goal. The mere fact, the HC noted, that an accident had occurred at a particular place could not provide a rational or objective ground to curtail the right of assembly on all roads; and indeed, the State had produced no evidence or material to show the causes of the accidents that it had cited, in a manner that would justify the order’s effective ban. The HC, therefore, found that there was no objective basis underlying the order, and that it deserved to be struck down as unconstitutional.

The HC’s judgment is an excellent example of the judicial safeguarding of rights against executive impunity. Its stand-out features include the use of constitutional history to establish the right to free speech and assembly, especially on “public” roads; the clear statement that the executive’s rationale for constricting rights has to be reviewed strictly, with the burden of justification lying upon the state, and not upon individual citizens to show why they should be allowed to exercise their rights; the HC’s careful analysis of how, in practice, the government order amounted to a restriction upon the right, and not simply a regulation, as it claimed; and of course, the HC’s use of the proportionality doctrine to provide effective relief and strike down the order. The verdict, thus, is a model when it comes to the protection of crucial civil rights and deserves to be emulated in similar cases across the country.

Gautam Bhatia is a Delhi-based advocateThe views expressed are personal

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