By Krishna Jha
Democracy has no space for blind surrender. The right to dissent makes media the fourth estate, with its sanctity under Article 19(1)(a) in the Constitution of our country. Every citizen has the right to freedom of speech, and despite this constitutional safeguard, the effective exercise of this right in India under the BJP rule faces daunting challenges today.
This the government has sought to achieve by the use of stringent laws such as the Unlawful Activities (Prevention) Act, 1967, the misuse of central investigative agencies, such as the Enforcement Directorate and the Central Bureau of Investigation, against political opponents, journalists, and members of civil society, and the inefficiency of the judicial system to provide timely relief to undertrial dissenters.
It is in this background that the Bombay High Court’s observation dealing with citizens’ right to protest when their fundamental rights are attacked assumes special significance. Protest in any form, hunger strike, sitting on Dharna in the open, under the hot sun, as the students and youth are engaged presently, even setting up library has been treated as provocation. Books are destroyed, students and other participants in the protest faced attack by police. The attitude of police, though employed in the service of people in a country where the government is by the people, of the people and for the people, has been engaged in cruelly suppressing the mass of people in discontent over the stand of the establishment.
Citizens have every right to protest any decision taken by the government and if they are deprived of that, it would be the loss of entire democratic space. In fact the citizens in the country, without having the rights would only be turned into passive architects of democracy. Bombay High court reacting to the slapping of cases against citizens that protested against the police action against them just as they opposed the stand of the police, said that people are pushed into being slaves of the system.
The single judge bench of Bombay High Court, Justice Madhav Jamdar, was following the Constitutional path only and acting on the principles that confirm that Judiciary is the custodian of right to freedom and deter any attack against it. Justice Jamdar must be profusely thanked for his contention when he said in no uncertain terms that we are living in times when there is common ground receding, and polarization is getting wider. He also pointed out that they label and criminalise dissent, and crack down on opponent, thus create distrust against opponents. In fact democratic institutions are used to shrink the democratic space itself.
The petitioner referred in this case was Saeed Ahmad Abdul Wahi Chaudhary. According to his statement, he is general secretary of Social Democratic Party of India. Among his activities, are organising and taking part in protests on issues which are often complicated, touching off the concerns of the popular masses. They also call for an open discussion on several sensitive and still unresolved issues like rights of minorities, that need space to express grievances. They do not prefer to go with state wielding extraordinary measures against them or strip them of their freedom.
As Justice Jamdar asked the police to explain if all these steps lead to enslave people for government, he actually pointed at institutions bending to power, putting lines that separate them and imperiling spaces for checks and balances to come lose.
Justice Jamdar’s order has broken open the chink, and the echoes are there in the system. His order has opened a flood gate in the system and the state must not challenge it. It is a moment for reflection. Justice Jamdar sought to know why an externment order was issued by Mumbai Police relying on FIRs related to earlier protests by the petitioner where slogans including ‘BJP government murdabad’, ‘Amit Shah murdabad’ were raised. Referring to the recent exam paper leak case and the petitioner’s contention, he inquired why citizens cannot stage protests or raise slogans.”It is the right of the citizens to protest. The petitioner has just raised slogans like ‘BJP government murdabad’, ‘Amit Shah murdabad’… Why can’t citizens raise such slogans and why externment orders for such slogans?” Justice Jamdar said.
Cautioning the police, he said they were servants of the public and not that of top government functionaries.
Petitioner Chaudhary had challenged the December 3, 2025 externment order of Deputy Commissioner of Police (Zone 6- Chembur area). He had been externed for a year.
Petitioner Chaudhary’s plea claimed that the externment proceedings began with a show cause notice in October 2025 on the basis of multiple FIRs registered against him between 2019 and 2024 relating to protests. He alleged the action kept him away during civic elections, amounting to “stifling legitimate democratic dissent.”
Advocates Payoshi Roy and Ibraheem Harbat, appearing for Chaudhary, had submitted that all the FIRs were registered against the petitioner under IPC Section 188 (disobedience to order duly promulgated by public servant) for protests he organised or participated in including those related to the government’s decisions on the CAA and NRC, the issue of the Babri Masjid, and the sealing at the Gyanvapi mosque.
The lawyers said none of these could attract Section 56 of the Maharashtra Police Act empowering the police to pass an externment order against a person about to commit an offence of causing danger, injury to person or property.
Roy said Chaudhary was externed merely for organising or participating in protests without giving him an opportunity to prove himself innocent and, therefore, the action against him should be set aside.
The state lawyer pointed to certain slogans raised by the petitioner and other protestors and argued that the action was in accordance with the law as the protests were held despite the police authorities having refused permission.
In his order, Justice Jamdar described the Mumbai Police action as “vitiated” and “mala fide” and observed that “citizens have freedom to express their opinion” and “live with dignity” as per Articles 19 and 21 of the Constitution.
Justice Jamdar observed that there was “no material on record to show that the movements or acts of the Petitioner are causing or are calculated to cause alarm, danger or harm to person or property”.
The bench, while setting aside the externment action relied on past Supreme Court and High Court verdicts and held, “The action taken by the Respondent–State of Maharashtra of externing the Petitioner, merely for opposing certain decisions of the Government of India, affects the Petitioner’s fundamental right of freedom of speech and expression and also right to live with dignity.” (IPA Service)
