Your Right, My Plight, Soft State and Judicial Executivism

The constitution of India guarantees to its citizens certain Fundamental Rights through Articles 12-35. Article 19 – Right to Freedom has wide scope which contains Freedom of Assembly. Every citizen has the right to assemble peaceably and without arms. It includes right to hold public meetings, demonstrations and take out processions. This provision however does not protect violent, disorderly, riotous assemblies, or one that causes breach of public peace or one that involves arms. This right does not include right to strike.

The limitations have been clearly outlined as extreme exercise of the right can lead to breach of Fundamental Rights of other citizens and to deal with it government has put in a mechanism through certain laws mentioned below:
Under section 144 of Criminal Procedure Code (1973), a magistrate can restrain an assembly, meeting or procession if there is a risk of obstruction, annoyance or danger to human life, health or safety or a disturbance of the public tranquility or a riot or any affray.
Under section 141 of the Indian Penal Code, an assembly of five or more persons becomes unlawful if the object is to threaten government or its officials on exercising lawful powers.

Though the legal framework is particularly sound, its enforcement has not been adequate. Jat agitations and Gujjar agitations (just to name a few) have caused huge losses to the state exchequer . Policing functions lie under the control of state government so it is the duty of the state government to keep a check on these agitations but the reality is completely different, the populist political head incharge of the state government instead watches silently and even support these agitationsin some cases due to fear of vote bank loss. But what about the rights of those groups who are not strong enough? Those in power are wise enough to use the laws selectively, as was in the case of midnight crakdown at Ramlila maidan (not that I support baba Ramdev).

Executive inaction/ misaction leading to a soft state leaves the arena open for judiciary to step in and direct the state to take adequate measures. This leads to tension between the government and the judiciary. Government and some sections of conservative intelligentsiaquestion the usurpation of executive functions by the judiciary. This phenomena is not good for a parliamentary democracy as executive functions are meant to be exercised by the elected representative and not the judiciary but there is noting less judiciary can do about it either.

A probable solution could be a law that calls for proper implementation of the existing laws. (I am not serious)