TIBETANS' PEACEFUl PROTEST BOOKlET Legal Advice for Tibetan Activists

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1 TIBETANS' PEACEFUl PROTEST BOOKlET Legal Advice for Tibetan Activists Hi<LN HUMAN RIGHTS LAW NETWORK DELHI, INDIA

2 TIBETANS' PEACEFUL PROTEST BOOKLET Legal Advice for Tibetan Activists HRLN HUMAN RIGHTS LAW NETWORK NEW DELHI, INDIA 2013

3 CONTENTS Forward How to Use the Book Presentation of Strategy Part I. Planning the Protest Strategy and Court Permission 13 Part II. What to Do When Arrested Preventative Arrests and Bail Hearings 14 Schedule 1 Sample Illustration of Demonstration Area Schedule 2 sample request for Demonstration Permit Schedule 3 sample Bail Application TIBETANS' PEACEFUL PROTEST BOOKLET

4 FORWARD HRLN's association with the Tibetan movement began in 2005, and since then we at HRLN have learned so much from the Tibetan community. We are grateful for the time that Tibetans shared with us, and we hope this pocketbook will prove useful for the Tibetan freedom movement. Tibetans have routinely been arrested for nonviolent protests and detained for unnecessarily long amounts of time. We created this booklet to help Tibetans protest without the interference of preventive arrests, and to minimize the time spent in jail when the police arrest Tibetans. Please do realize that the law and legal procedures set out in this booklet are often not followed by the police so please don't be disappointed if things don't work accordingly to the law. Whatever we say here, please remember that the most important thing is to listen to your community's leaders, and if they say to do different for strategic purposes, then please disregard our booklet's advice. HRLNwill continue to be by your side in the struggle for a world where we can all fulfill our potential. Yours in the struggle, HRLNTeam Delhi, January, 2013 ILegal Advice for Tibetan Activists

5 HOW TO USE THIS BOOKLET We hope this booklet proves useful in helping to develop a strategy of using Indian law to the benefit of Indian and Tibetan activists. Please read the strategy section for background on the struggle to demonstrate nonviolently and unhindered by the police, as well as for a vision of how we can use the law to benefit justice worldwide. The second portion of this book is imminently practical for activists. For example, we have included information on how to facilitate a quick release if you are arrested. Please study this booklet and make use of it if you are arrested and taken before a magistrate. If you can minimize the amount of time you spend detained, then you can more quickly return to organizing and demonstrating. TIBETANS' PEACEFUL PROTEST BOOKLET.

6 PRESENTATION OF STRATEGY INDIANS, TIBETANS, AND FREEDOM OF SPEECH Article 21 of the Constitution of India guarantees the right to life. It includes within it the right to free speech. Additionally, Article 19(1)(a) of the Constitution of India guarantees the freedom of speech and expression. This right is available to citizens and non-citizens alike. Therefore, Tibetans and Indians are constitutionally protected if they engage in free speech activities in India. Freedom of speech and expression includes within its ambit the right to protest, to demonstrate, to shout slogans, to wave flags, to hold banners, and to march in a procession. However, there is no right to engage in violence of any kind or to forcibly enter onto another person's premises or to prevent the free movement of other persons. A RIGHT TO PROTEST Do Indians and Tibetans have a right to protest? The answer is yes. The protests may be loud, they may be angry, they may be very critical of certain people. These protests may Legal Advice for Tibetan Activists

7 Iinclude the waving of the national flag. All these forms of demonstration and protest, because they are peaceful, are perfectly legal. This has been laid down by the Supreme Court in the case of Kameshraw Prasad v. State of Bihar [AIR 1962, SC 1166]. This is a decision of 5 judges of the Supreme Court. There the Supreme Court wrote: "It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed" by the freedom of expression. The Court specifically held in Kameshwar that the right to make a demonstration is covered by freedom of expression, and it is in effect a form of speech or of expression. We can also refer to a decision from Delhi itself: "In India, right to protest is a fundamental right under Article 19 of the Constitution of India."R.K.Sharma v MIS Bharat Litho (4 May, 2005), High Court of Delhi at New Delhi. Reference may also be made to the 5-judge, Constitution Bench, decision of the Supreme Court, in Himat Lal K. Shah v. Commissioner of Police [1973.l.SCC.2271 where the Supreme Court held: "Freedom of assembly is an essential element of any democratic system. Public streets are the natural places for expression of opinion and dissemination of ideas. Indeed, it may be argued that for some persons these places are TIBETANS' PEACEFUL PROTEST BOOKLET

8 I the only possible arenas for the effective exercise of their freedom of speech and assembly. Public meeting and open spaces and public streets form part of the tradition of our national life. In the pre-independence days, such meetings had been held in open spaces and public streets and the people have come to regard it as a part of their privileges and immunities." RESTRICTIONS ON THE RIGHT TO PROTEST This however does not mean that one can assemble anywhere and everywhere. The Constitution of India permits the state to impose reasonable restrictions. What is a reasonable restriction? It is better and easier to answer this question by understanding what an unreasonable restriction would be. Speech and expression such as protests, demonstrations, slogan shouting, banner displaying, flag waving, and placard showing are intended to be seen and heard by the persons against whom the protests are made. Therefore any restriction imposed by the police which keeps the demonstrators so far away from the person or institution against whom they are demonstrating so as to go unseen and unheard would be an unreasonable restriction on the exer- Legal Advice for Tibetan Activists

9 Icise of the right. For example, if the Indian and Tibetan groups wish to protest at a particular point and they are told that they can assemble at a place which is so far away from that point so as to be neither seen nor heard, such a restriction may be said to be unreasonable. There is however the other side which needs to be understood. Section 144 of the Criminal Procedure Code enables the government to make a declaration regarding certain areas so as to prevent obstructions or injuries. This principle deserves to be tested by doing sample cases that peaceful and nonviolent protests of small groups of persons who do not obstruct the movement of the public are perfectly legal and cannot be stopped by a Section 144 declaration. STRATEGY FOR UNHINDERED DEMONSTRATIONS The plan of action therefore is to develop a collective strategy where Indian groups and Tibetans come to an understanding as to where they wish to demonstrate. Then, the Indian group will make the application for small groups of demonstrators, giving the police the precise area where they propose to demonstrate with full details of the slogans that they intend to recite, the placards they intend to hold, the flags that they intend to wave, and also full reasons as to why they wish to exercise their con- TIBETANS' PEACEFUL PROTEST BOOKLET

10 stitutional right to protest and demonstrate. It is preferable in the first instance for Indian groups to make this application, saying that they wish to demonstrate against certain persons and their policies. This is only a matter of strategy. If it works, and that is a big "if", then perhaps Tibetan groups could also try the same route. However, it is much safer and better to start with Indian groups making the application to the police. The police are bound to reject this application and that is when we take this rejection by the police to the High Court to test the legal proposition as to whether Indian citizens can stand in a public place and demonstrate. PREVENTIVE ARRESTS The next issue is regarding the preventive arrest by police of Tibetans and others. The leading judgment in this regard is the 5-judge bench decision of the Constitutional Court in Madulamay v. Sub-Divisional Magistrate, Monghyr & Ors., 1970 [3.SCC. 379]. The police generally use Section 144 for these preemptive arrests. They also use Section and Section of the Criminal Procedure Code to make preemptive arrests of persons whom they anticipate will disturb the peace. To do so the police must have a reasonable apprehension that the con- Legal Advice for Tibetan Activists

11 I duct of those persons is likely to cause a breach of peace. These sections are intended to be used against those who intend to break the law. Peaceful protestors are not law-breakers. In fact, their demonstrations and activities are entirely protected by the Constitution of India. Unfortunately, the police do not recognize the difference between peaceful protests and violent demonstrations. Activists must struggle to recover the spaces that we have lost due to the blanket prohibition of demonstrations, even peaceful ones and the indiscriminate and large-scale preemptive arrest of protestors. We can only recover our space and reassert our right to demonstrate peacefully if activists are aware of the legal provisions-their limitations and strengths. Activists must exploit the strengths of the legal provisions to the fullest extent. This booklet is intended to take the first step towards informing activists of their rights in the Constitution and the Criminal Procedure Code so that they may start planning right away to get High Court orders for their protection in test cases. Now it could be argued by the police that the Tibetan groups in Delhi have demonstrated very vigorously and have carried out other actions that give the police a reasonable apprehension that the actions are likely to be repeated. This booklet is not concerned with such direct actions as they lie in the realm of TIBETANS' PEACEFUL PROTEST BOOKLETII

12 I people's movements, which have a greater moral sanction than the mere letter of the law. This booklet is oriented towards developing a strategy for regular and peaceful, nonviolent demonstrations against certain individuals and institutions in a manner entirely within the four walls of the Constitution of India and the Criminal Procedure Code. THE NEED FOR TEST CASES To avoid such preventive arrests, groups of individuals may make applications to the police as suggested earlier, asking for permission to demonstrate peacefully at designated spots [an example has been annexed at schedule 1 at the end of this booklet]. Then if a policeman arrests a person who seeks to demonstrate peacefully, and produces that person before the magistrate, the activist may show the application made to the police and declare his or her intention to demonstrate peacefully only. In practical terms, the Indian police are not particularly bothered about law. Therefore, while you prepare yourself by reading this booklet and discussing with your colleagues the strategies that you want to follow for peaceful demonstrations, you will simultaneously need to work out a legal strategy with the lawyers. First, after you give your application to the police through an In- Legal Advice for Tibetan Activists

13 Idian organization that you wish to hold demonstrations at specified areas, you will need to go to a lawyer and file a petition in the Delhi High Court. This is because the police will either not answer your application or they will reject it. In the High Court, a point that will be decided is whether the application is an exercise of fundamental rights guaranteed in the Constitution. What will also be decided is whether the police refusal is reasonable or unreasonable. Since the police reject all our applications for peaceful demonstrations, it is very important to prepare to take such test cases to the High Court even today when there is no anticipated visit of any official. We must do these to establish our right to demonstrate near the venue or in some other prominent space so that we establish the right to demonstrate peacefully. In this way, we will have less of a problem when we make a similar applications for permission to demonstrate. TIBETANS' PEACEFUL PROTEST BOOKLET

14 PLANNING THE PROTEST Part I. Strategy and Court Permission l. Tibetans work with an Indian organization which will make the petition to the High Court for permission to protest in a specified place and in a specified way. 2. The organization will use marked maps, like that annexed at Schedule 1, to show the court where these nonviolent demonstrations need to take place to be seen and heard. Legal Advice for Tibetan Activists

15 I WHAT TO DO WHEN ARRESTED Part II. Preventative Arrests and Bail Hearings 1) Preventive Arrest -- If the police have a reasonable apprehension that you are going to disrupt public order, they can preventively arrest you (107 -l10 Cr. P.C.). They will have to take you before a magistrate. What Should Happen and What You Should Do: Police must put in writing why they propose to arrest you. The police must take you to the magistrate. He will ask for a good conduct bond. They can detain you only when you do not promise to behave. The magistrate cannot issue a bond to detain people for nonviolent protests, so tell him: "Yes, I promise to behave. I will protest non-violently, but I promise to behave. Please make official note of this in your record," TIBETANS' PEACEFULPROTESTBOOKLET.

16 "Sir, I will not engage in violence but I will protest for OR the fulfillment of human rights, so please release me immediately. No violence, only freedom of speech, sir, that's all." Remember: Non-violent activism is good behaviour! And preventive arrest cannot be used to stifle peaceful, democratic activities. You may be released and free to resume protesting! You can also tell the judge that in the famous Supreme court case, D. K. Basu, the Court wrote: Article 21 provides "no person shall be deprived of his life or personal liberty except according to procedure established by law". And in National Human Rights Commission v. State of Arunachal Pradesh the Supreme Court held that foreigners are entitled to the protection of Article 21 of the Constitution. 2) Bail Hearing - In the event that you are arrested, tell the magistrate why you should be released on bail. If you are arrested, and you don't have a lawyer, you have a right to make an application for bail the moment you are produced before the magistrate. A sample bail application is at Schedule-2 of this booklet. ILegal Advice for Tibetan Activists

17 As recently as 2011, the Supreme Court reaffirmed its decades-old commitment to "bail not jail." In Sanjay Chandra vs CBI, 2012 [1.SCC 40], the Supreme Court said that, "It is not in the interest of justice that accused should be in jail for an indefinite period." And, "This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. " When taken before the magistrate, say: "Sir, this is my (name, address). I have never been convicted in a criminal case." AND "I should be released on bail, sir, because Examples: "I am a student, and so I am not going to run away." "My house/family/college/friends is/are here/there and so I am not going to run away." TIBETANS' PEACEFUL PROTEST BOOKLET

18 SCHEDULE 1 Sample Illustration of Demonstration Area I ad 11 Legal Advice for Tibetan Activists

19 SCHEDULE 2 Sample Request for Demonstration Permit To the Station House Officer New Delhi Date: 1 1 Police station Sir, 1. I, the undersigned, am a student/employee [give details of studies or employmentll reside at _ place. I have no previous criminal record and have not committed any criminal act. 2. We wish to demonstrate against _ We, about 10 people and others not exceeding 20 persons at any point of time, intend to do a peaceful and nonviolent demonstration at the spots marked X in the site drawing annexed with this application. All the places marked X are public places and we have chosen these areas in such a manner that we will not be an obstruction to any person. You will notice from the drawing that the places of demonstration TIBETANS' PEACEFULPROTEST BOOKLET. I

20 are approximately 30 feet from the person/ institution we propose to demonstrate against. 3. We intend to shout the following slogans: a. b. 4. We intend to wave flag 5. We intend to hold placards saying: a. b. c. 6. We will not engage in any act of violence or obstruction. 7. Kindly give us permission to do these demonstrations between (date) and (date) _ from 9am In the morning to 9pm at night. If you need any further clarifications, please do contact us on (telephone #) Sincerely, (Indian Organization) Legal Advice for Tibetan Activists

21 I SCHEDULE 3 Sample Bail Application In the magistrate's court, New Delhi, State v. _[Insert your name]_ May it please your honor, 1. The name of the applicant is -----:-,-,------,-----,--,- she is years old. She is studying in/working in She resides at. She has been residing at this place for years. She is the owner/renter of the premises. [Hereafter give further details of your studies or work to show that you are regularly employed or regularly studying and reside at a fixed place. 2. The accused has no previous criminal record. The accused has not committed any criminal act. The accused has been falsely arrested only because the accused was demonstrating peacefully and nonviolently [here give full details of the reasons why you were demonstrating]. The accused firmly believes in peace and non-violence. Your honor may enquire TIBETANS' PEACEFUL PROTEST BOOKLET

22 from the police as to whether the accused has engaged in any violent act. 3. The accused therefore requests this honorable court to direct the police to release the accused unconditionally and discharge him from this case as no criminal activity is made out at all. In the best traditions of Mahatma Gandhi the accused has engaged in nonviolent peaceful acts. 4. In the alternative, the accused requests this court to grant bail on personal bond to the accused and the accused gives an undertaking to this honorable court that the accused will turn up on every date of this criminal case and not miss any of the proceedings and the accused will fully cooperate with the police in their investigation. 5. The accused requests this honorable court to pass an order on this application expeditiously. Date: Name: _ Legal Advice for Tibetan Activists

23 II ~N~O~TE~S _

24 Contact for legal issues: Human Rights Law Network , Emergency HRLN Numbers: Amiy Shukla: Soma Sebastian: Anant KAsthana: Jayshree Satpute: For getting involved on the Tibetan issue, contact: Students for a Free Tibet-India Jogiwara Road, McLeod Gunj, Dharamsala, HP Phone: , (Dorjee Tseten-National Director) sftindia@gmail.com (Delhi office No.) Regional Tibetan Youth Congress Samyeling Office Next to Tibetan Welfare Office New Aruna Nagar Majnu Ka Tilla Delhi

Q. What is Bail? Q. What is a Bailable and Non-Bailable offence?

Q. What is Bail? Q. What is a Bailable and Non-Bailable offence? Q. What is Bail? The purpose of arrest and detention of a person is primarily to make sure that the person appears before the court at the time of trial and if he is found guilty and is sentenced to imprisonment,