Also by Ayan Aditya Giri

Every democracy, sooner or later, confronts the same difficult situation: A crowd on a public road, a police battalion, and a vehicle at the kerb. The mass detention of opposition leaders, students and other demonstrators in the ongoing protests in Delhi directed at the resignation of the Chief Election Commissioner, Gyanesh Kumar, has brought that scene into Indian lives now. We do not weigh the protestors’ grievance, nor the necessity pleaded by the authorities. We ask the prior question: “What does the Constitution say about the street and about the detention cells?

Peaceful assembly is a settled commitment of constitutional democracies, but like other rights, it is never an absolute right. The First Amendment to the US Constitution protects the right to “peaceably assemble”. American courts permit reasonable regulation of time, place, and manner, yet since Brandenburg vs Ohio, they punish advocacy only when it is directed at, and likely to produce, imminent lawless action. Article 8 of the German Basic Law protects assembly “peacefully and without arms”. In the Brokdorf decision (1985), Germany’s Federal Constitutional Court treated demonstrations as integral to democratic order and required that restrictions be proportionate, with outright bans a “last resort”. Our Supreme Court, too, on October 9, clarified that only regulation, not prohibition, is permissible. Section 17 of the South African Constitution protects the right to demonstrate........

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