In the UK, the Public Order Act 1986 was enacted “to create new offences relating to public order” and “control public processions and assemblies.” The Act envisages the advance notice of public processions, imposition of certain conditions on public processions and assemblies “to prevent disorder, damage or disruption”. Conditions include directions prescribing the “route or prohibiting the procession from entering a specified place”, “maximum duration of public assembly” or “maximum number of people who may constitute it.” At present in the UK, there is a right to peaceful assembly on a public highway (such as Constitution Avenue), provided it is “reasonable, non-obstructive and does not amount to unreasonably impeding the primary right of the general public to pass and repass”.

In Pakistan, we do not have such legislation. But under The Police Act 1861 and The Police Order 2002, the District Administration has abundant powers to regulate the “conduct, route and time” of processions or assemblies. It is also entrusted to grant written permissions specifying conditions for such processions or assemblies to maintain public order. In addition, section 144 gives power to the District Magistrate, in the case of Islamabad, to create an offence. Under the latest order issued pursuant to section 144 in August, gatherings of five or more persons at any public place were prohibited.

Despite the ban imposed on the assembly of five or more people, protestors were allowed to carry on the sit-in subject to certain conditions specified in the No Objection Certificate. The conditions, inter alia, were; entry to red zone is prohibited, cost of damage caused to buildings shall be recovered from participants, no infants allowed, volume of speakers be confined to the audience at venue, access to public/private property not be obstructed and the event conform to the cultural values of Pakistan. Some of the conditions have been exceeded by the participants of the sit-in.

In our scheme of the Constitution, the right to protest is not an independent right and flows from Article 15; freedom of movement, Art 16; freedom of assembly, Art 17; freedom of association and Art 19; freedom of speech – all these are not absolute rights and are qualified by reasonable restrictions. In a democracy, fundamental rights can be limited to the extent that limitation is “reasonable and justifiable in an open and democratic society.” In constitutional jurisprudence, the concept of proportionality has been developed in various jurisdictions “to balance and weigh the competing interests of an individual and society.” It is for the courts of the country to determine the constitutionality of the on-going dharna- let us leave it at that for now.

In the past two months, images of protests from D-Chowk and countrywide directed at the ruling elite, including individual instances, have been unprecedented. Regardless of which side of the divide we were on, most of us became politicized. Our political reality has exploded in unexpected ways with far reaching consequences. But most of our political pundits took a parochial view and needlessly speculated on the influences of the dharna; offering sloppy comparisons with the 90s and hastily constructed explanations about its future. In all this, we for the most part, missed out on the real substance of the development; that the ordinary citizen found the courage to dissent.

We interpret the events and facts with an observer’s bias –nothing against it. Unfortunately, because of how we are taught history, we are trained to look at socio-political trends from above –with only perspectives of elites or counter elites. The progressive impulse a society generates invariably comes from below. Perhaps what we have seen in the images is the aggregate effect caused by pressure from multitudes of underlying causes.

Balloting and elections (even if they are open, free and fair) are significant expressions of public reasoning. But they are only one part, albeit an important part, of the way public reasoning operates in a democratic society. Today democracy must not be assessed only in terms of the institutions, laws and rules it contains but with reference to the actual society that emerges as a consequence of those institutions, laws and rules. The buck cannot simply rest with institutional structure alone; the success of democracy also depends on the working of socio-political interactions and the actual behavior of human agents.

It is naive to conclude that with time, democracy will somehow cure all ills. In developing countries, it tends to have a reinforcing effect. In our case, democracy has only strengthened the elite; it did not alter it. A fine illustration of Kleptocracy; here the ruling 400 families have grown stronger both in terms of net wealth and their influence on the state apparatus. For democracy to flourish, merely the evolution argument is not enough. It requires persistent and determined action aimed at actual social realizations emerging from our democratic system.

Howard Zin wrote, “Protest beyond law is not a departure from democracy; it is absolutely essential to it. It is corrective to the sluggishness of the “proper channels”, a way of breaking through passages blocked by tradition and prejudice. It is disruptive and troublesome, but it is a necessary disruption, a healthy troublesomeness.”

This dharna has, at the very least, reminded those in power that they cannot operate like the Thirty Tyrants of Athens in the name of democracy anymore. They must choose the course of their legacy. The courts too have a choice to make. They may condemn the “gypsies” and “terrorists” protesting today. But each one of the protestors who join the sit-ins along with their leadership- history will absolve them for their contributions.

The writer is a freelance columnist.