Among the questions the Supreme Court has asked the high-powered enquiry committee to answer on the Cockroach Janata Party protest crackdown, one has received more attention than others: did the police use “excessive force and violence” against protesters at Jantar Mantar on July 20?

The question undoubtedly merits attention. Going by the accounts of the petitioners, witnesses and human rights bodies, the clampdown was ferocious. Apart from batons and tear gas, the police allegedly used nail-studded lathis, rubber bullets, electric batons and even pellet guns. A Human Rights Watch report quotes a 24-year-old photojournalist as saying, “I have photos of protesters just standing there and the police beating them.”

But beyond the specifics of the protest at Jantar Mantar, there is another question in the Supreme Court order raised by the petitioners. What is “a proportionate and measured police response” to protests and peaceful assemblies that strikes an “appropriate balance between the maintenance of public order and the constitutional right to peaceful dissent”?

It is not hard to see the inherent conflict between the two mandates. Article 19(1)(b) of the Indian Constitution guarantees all citizens the right to assemble peaceably without arms, while Article 19(3) places restrictions on this very freedom in the interest of public order and the sovereignty and integrity of the country.

The tension is not diminished with the Bharatiya Nagarik Suraksha Sanhita. In the new avatar of the Code of Criminal Procedure, as in the old, the police are empowered to use force to disperse any assembly of five persons or more that is deemed unlawful and a threat to public peace.

But what is this force? And when does it go beyond justifiable levels? That is what the petitioners hope to get at.

As topical as it may seem, the question goes beyond the events of July 20 at Jantar Mantar.

When the police lathi-charged and tear-gassed workers staging a protest for higher wages in Noida in April, the action was described by the workers as merciless and uncontrollable. When the police lathi-charged activists resisting the felling of trees in Aarey Colony to make way for a........

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