Whose Law? Which Order?

Even as the conceptions of the right to freedom to assemble and public order are under scrutiny in India, the Ugandan constitution shows the way ahead. Nowhere does it suggest that the ways of policing may downgrade dissent or adjudication of rights in conflict.

- Prof Upendra Baxi

EVERY constitutional democracy faces the question of reconciling the demands of pubic security and order as a collective human right on the one hand and the freedom of individuals to protest peacefully on the other. Sooner or later, constitutional courts have to face the daunting task of interpretation of conflicting rights.

The Supreme Court of India has, in a long line of decisions, struggled to articulate the frameworks of reconciling the rights in conflict and in the specific contexts of adjudication. It recently upheld peaceful protest in non-belligerent occupation of certain public spaces as a vital aspect of a dynamic democracy always in ferment. And the police authorities are to act professionally, though with constitutional care and concern.

The Ugandan constitutional courts have handled similar questions. In Muwanga Kivumbi (2005), Section 32(2) of the Police Act was declared unconstitutional and this was upheld in a 2020 decision invalidating Section 8 of the Public Order Management Act, 2013 (POMA). This law rearticulated supremacy of police powers to maintain security and law, downgrading the right to peaceful assembly in public spaces. It is interesting at the outset to note the social identity of some of the social action petitioners.