“Freedom of speech is freedom above all for those whose views you dislike the most”
-Peter Hitchens
An especially important keyword in the lines italicized above is Freedom. Rightly so, at the heart of every democracy lies freedom, freedom to move freely, freedom to speak what we want to, freedom to express our ideas, and freedom to follow the religion of our choice. Therefore, it is only imperative for us to say that the more open any democracy is to such ideas of freedom, the more likely it is to thrive. However, at the same time, it is crucial to highlight the distinction between freedom and excessive freedom. While freedom is a lucrative idea with the scope of development, too much leeway can harm society. In this sense, freedom should always be coupled with certain duties and reasonable restrictions to keep society in check while also providing it with significant space to thrive in any given scenario. When these reasonable restrictions just become restrictions without any rationale, society’s integrity goes into vain. In this context, the new Kenyan Bill and how new bill has led many constitutional scholars to go back to the pages of their constitution and rethink the very existence of what the Kenyan government refers to as; The Kenyan Assembly and Demonstration Bill becomes relevant.
GENESIS OF CONTROVERSY: BREAKING DOWN THE BILL
Although the bill was introduced on April 26 of this year, its principles and issues have roots that trace back 14 years to the promulgation of Kenya’s constitution. The document enshrined in its Bill of Rights not only several fundamental freedoms but also features that contribute to a framework aimed at promoting democracy, justice, and social equity in Kenya. The bill is a living and one of the most recent examples of how the balance between freedom and development can be jeopardized when the state arbitrarily addresses dissent, to say the least. The bill, which was until recently under public participation, was portrayed to be aimed toward the maintenance of public order but the provisions it proposed as well as the controversies it sparked drew significant criticism for potentially curbing freedom. The bill in this context becomes a thought-provoking lesson for other democracies like India.
When we dive deeper into the provisions of the bill, we realise that the Bill has some seriously troublesome fundamentals that require urgent attention. It primarily imposes restrictions on the constitutionally guaranteed Fundamental Right to Assemble, Picket, and Present Petitions which was vested in Article 37 of Nairobi’s constitution. There exist three main provisions that the bill seeks to propose;
- The bill provides that no person shall hold an assembly or demonstration except as permitted by the provisions of the Bill.
- It requires the convenors of any assembly or demonstration to notify the police between three to fourteen days before the event.
- It outlines specific regulations governing the exercise of the Right to Assemble, Demonstrate, Picket, and Present Petitions.
However, it does not end here. Adding on to this, the bill includes problematic provisions that prohibit protestors from wearing any clothing that could conceal their faces, thereby taking away their freedom to remain anonymous and at the same time increasing their fear of retaliation from the state. It clearly states that if any property damage occurs in the course of the protests or demonstrations, all participants may be held jointly and severally liable unless they can provide reasonable justifications to the contrary. It was also specified that merely claiming that a person ‘forbade’ the act does not meet the threshold for reasonable justification.
FROM RIGHTS TO RESTRICTIONS: KEY TAKEAWAYS FOR INDIA
Each provision of the bill thus sparks numerous concerns regarding the democratic integrity of Kenya. It is also imperative to note that the bill was brought in at a time when the country was already dealing with anxious demonstrations related to the Finance Bill proposed in Kenya. It was perhaps ironic that the government, instead of addressing the demands and needs of the population decided to propose an altogether new legislation that curtailed the same fundamental freedom that was relevant at that particular point in time. The ongoing conundrum in Kenya in this sense lays down numerous key lessons and takeaways for India. India, just like Kenya is a democracy with its constitution that guarantees fundamental freedoms to its individuals. Any attempt made by the recent acts of Kenya can turn out to be extremely disputable for India.
Whenever in a democracy, the government tries to make provisions that indirectly attempt to curtail the rights of the citizens, the very essence of the democracy is undermined. Freedom of speech and expression has been guaranteed under Article 19 of the Indian constitution. This very article includes the right to assemble peacefully, the right to form associations, the right to move freely, the right to reside and settle, etc. Time and again the significance of these freedoms has been emphasised in popular precedents. The Supreme Court of the United States of America in 1969, gave a judgment in the famous case of Tinker Vs. Des Moines Independent Community School District, 1969 where the Honourable Supreme Court reiterated the constitutional right to freedom of speech or expression by ruling in favour of the students wearing armbands to their school as a symbol of protest was a case similar to the issue concerned. The ratio of the 1969 Supreme Court decision in Tinker v. Des Moines Independent Community School District was 7-2 in favour of the students. The Court found that the school’s actions were unconstitutional because they had not shown that the armbands caused a substantial interference with schoolwork or discipline. The Court also noted that the school had singled out the armbands for prohibition, rather than banning all political symbols.
Amit Sahni Vs. Commissioner of Police,2020 is another important legal precedent where the protests against the Citizenship Amendment Act at Shaheen Bagh were protected. The closest example of a legal precedent in this context is the case of Mohammad Aamir V. State of Maharashtra, 2017. The Honourable Court in this case reinforced the importance of public protests as a means for citizens to voice their opinions and engage in democratic processes, ensuring that the state cannot unduly suppress their rights. The appellant argued that the protest blocked the public way and caused grave inconvenience to commuters. Accepting this contention, the Court ruled that despite the existence of the right to peaceful protest against legislation, public ways, and public spaces cannot be occupied indefinitely. These cases underscore the vital significance of fundamental freedoms, reaffirming their role as essential pillars of democracy.
CONCLUSION
“A Democracy is a government of the people, by the people, and for the people.”
This is an immensely popular saying that every student who seeks to understand the basics of a democratic government is taught. However, the saying is more than merely just a saying; it is the guiding light for all the democracies that wish to flourish, all the democracies that prioritize their citizen’s growth, and all the democracies that wish to make an impact in the global arena. When one deviates from the essence of this statement, that results in great turmoil in some or the other form. Conflicts are an inevitable part of any society, they cannot be avoided but can however be addressed in a way that is beneficial to the society. Any attempt made by the government to suppress the voice of its citizens is an attempt to murder the democratic policies of that country. Imposing such limits on public dissent through legislation can often prove to be counterproductive, to say the least. These ongoing challenges in Kenya function as crucial lessons for India, underscoring the necessity of protecting the fundamental freedoms of its citizens. They remind us that a vibrant democracy thrives on the ability of citizens to question and engage in meaningful dialogue.
Ultimately, these lessons compel India to embrace its democratic ideals, ensuring an environment where dissent is not merely tolerated but celebrated as a cornerstone for progress.
Author(s) Name: Siya Nayal (National Law University, Nagpur)
