Baton to Ballot Boxes: The Need to Look for Reforms

“ The state is a Leviathan."

When Thomas Hobbes wrote this line, he imagined the state as a sovereign so powerful that citizens would surrender their liberty in exchange for order and protection from chaos. It was meant to be a bargain, not a threat. Three centuries later, on the streets of Ranchi, that bargain looked badly frayed. The state did not protect its citizens from disorder. It became the source of it. Students who had simply asked for a fair recruitment exam found themselves facing water cannons and batons instead of answers. Leviathan, it turned out, had forgotten which half of the contract it was supposed to honour.

 Illustration by The Geostrata

With the kind of absurdity with which the violence plays out in protests, it seems as if the authorities do not find much relevance in the idea of a Protest. It is, however, debatable whether these movements of mass agitation really translate to something substantial or not. Because sometimes they do, sometimes they don't. A protest can dominate headlines and still fail to reshape institutions.

Yet, almost every right we casually enjoy today was once dismissed as someone's unreasonable demand. Weekends, women's voting rights, civil rights, safer workplaces, environmental protections; none of these appeared because power woke up one morning feeling generous. Someone questioned, someone organized, and Someone refused to accept, "That's just how things are."

THE CONSTITUTIONAL GUARANTEE

The founding fathers and supporters of the liberal democratic order understood how important it is to have an institutional vent for public discontent, especially in a representative democracy. However, the present ground reality shows a different story. On one hand is Article 19 of the Indian Constitution enabling the right to freedom of speech and expression, with supporters like Kazi Syed Karimuddin and N.G Ranga who advocated for its presence in the Constituent Assembly of newly Independent India.

On the other hand, there were mighty voices like Dr. Ambedkar, who pointed out the significance of ‘restraint’, considering the fragile nature of the Indian state back then.

To date, Protests remain constitutional, given that they are conducted in a Peaceful and just manner under legal guidelines. Reasonable restrictions exist, of course. Article 19(2) and 19(3) permit the state to regulate assembly in the interest of public order. But regulation does not mean obliteration. A peaceful march toward a legislative assembly, even one that breaches barricades, does not automatically forfeit constitutional protection. The Supreme Court has repeatedly held that the right to protest is integral to a functioning democracy, most notably in the Shaheen Bagh Case, where the Court affirmed that dissent is not disorder.

Then there is also Article 21. The right to life and personal liberty has been read expansively by Indian courts to include the right to live with dignity. A student who is baton-charged while attempting to exercise a constitutional right does not merely lose a few hours to injury. She loses faith in the idea that the Constitution protects her from the state, not just from her neighbour.

LOSING SIGHT OF THE REMEDIES

The first name that comes to mind when one thinks of availing ‘Justice’ in India is the Bharatiya Nagrik Sanhita, the BNS, or the Criminal Procedure Code, the CrPC. Let's look at the latter first. Section 151 of the CrPC allows a police officer to arrest someone without a warrant and without a magistrate's order, simply on the officer's own belief that the person is “designing” to commit a cognizable offence.

The same officer who decides that a protest might turn into an offence is also the one authorised to act on that belief, immediately and without waiting for anyone else's sign-off.

This is not a hypothetical concern but one that even the courts have flagged as a violation of Article 21, awarding compensation. Courts have also asked authorities to exercise ‘great caution’ while doing so, but caution is an afterthought, applied months later in a courtroom after the sweeping lathis have done the work. The loophole is therefore clear and structural: it hands the dagger in the hands of the same individual who is most likely to use it.

Moreover, the BNSS provisions with respect to producing a copy of the FIR to the accused members of the protest also need deeper thought.

Section 173(2) of BNSS requires a copy of the FIR to be given forthwith and free of cost to the victim but does not mention the accused. However, the Supreme Court in Youth Bar Association of India v. Union of India gave directives on FIR entitlement to the accused too under Section 207 of the CrPC, but an exception exists that puts the whole ruling into jeopardy and proves to be problematic in cases where mass arrests take place in a short span of time.

The catch is that only offences which are labelled as ‘sensitive ’, like sexual offences, cases under POCSO, and terror offences, are exempted from this ruling, but the list is not exhaustive. More so, the decision to declare an offense sensitive cannot be taken by a police officer below the rank of a Deputy Superintendent of Police, which is often not the case at the complaint registration table.

TOOTHLESS TIGER: NHRC

Justice H.L. Dattu once famously remarked that the National Human Rights Commission in India is a toothless tiger. This is because the whole purpose of a Human rights body is to take suo motu cognisance of cases that arise in matters like these and ensure legal remedies. But what we witness is completely obscured from reality.

The NHRC, under the Protection of Human Rights Act 1993, can only recommend. It cannot be compelling. Its findings are merely advisory in nature. So basically, a state government can simply thank the Commission for its report and file it away.

The NHRC can investigate. It can summon officials. It can write scathing reports on custodial deaths and disproportionate use of force. But it cannot be punished. It cannot order the state and make it legally bound to pay any compensation. It cannot prosecute an errant police officer. Compliance is voluntary, and voluntary compliance from a state accused of wrongdoing is, unsurprisingly, rare. So when students in Ranchi are baton-charged, the NHRC only acts as a bystander.

WAY FORWARD 

These provisions are living proof that the Human Rights legislation in India is in need of reform. Until critical provisions like these are discussed in the mainstream, the hope of change remains piecemeal. A stronger country can only thrive where there is a healthy institutional ecology to breathe. And we all understand how power without accountability drifts towards dominance. Politics without participation drifts towards apathy. And protest, despite all its imperfections, remains one of the ways societies remind themselves that no arrangement is beyond question.

Because history rarely changes when everyone agrees. It changes when enough people decide that silence has become more uncomfortable than speaking. We shall not forget that Hobbes's Leviathan was supposed to trade liberty for protection, not liberty for silence. Every baton that landed on a student's back, every FIR that never gets filed, every NHRC report that gathers dust on a shelf, chips away at that original bargain a little more. And the irony is that the very students being beaten on the streets of Ranchi today will be standing in queues outside polling booths tomorrow.

They are not a fringe group the state can afford to alienate. They are the demographic dividend, the voters of the next decade, the ones who will eventually decide who gets to sit in the assembly they were once baton-charged for approaching. A state that wants its mandate cannot keep teaching it, protest after protest, that the Constitution's promises apply to everyone except it. Sooner or later, that lesson gets remembered exactly where it matters most: at the ballot box. 

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BY RIYA

TEAM GEOSTRATA

info@thegeostrata.com