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Commissioner of Police v Bassi [2020] NSWSC 710

Mr. Bassi in this particular case provided a notice of Intention to the commissioner on 29 May, 2020 for the purpose of public demonstration to remember the death of George Floyd to be held on 6 June which would involve approximately 50 persons. Further there were amendments made in the notice and on 4 june Mr. Bassi conveyed to the Commissioner of Police that around 5000 people responded to the social media advertisement about the protest and he suspected that the gathering would be bigger than anticipated. He conveyed the plans of demonstration after which a revised notice was sent to Mr. Bassi regarding the change in course of the demonstration. Part 4 of the Summary Offences Act authorizes public assembly. The authorization means that no person who conducts their business in accordance with the details notified, will be held liable for any offence relating to participating in an unlawful assembly or harm cause to any person or vehicle in a public place. For this purpose, Mr. Bazzi had notified the commissioner under Section 23 of the Summary Offences Act, 7 days before the date of protest[1]. Under Section 23 of the Act, the commissioner has to notify the organizer that he does not oppose the holding of the public assembly. The commissioner on 5 June 2020 filed a case against Mr. Bassi and sought an order under Section 25 of the Summary Offences Act, wherein; Mr. Bassi was no longer permitted to hold public assembly. In the appeal to this order the judgment was overturned sating that the primary judge erred in finding his decisions and the amendments sought in the notice of intent did not in any way mean that Mr. Bassi presented a new notice of intent after 29 May and that the communication through mail amounted to the authorization by the commissioner for public gathering.

People, in a healthy democracy have a right to protest against government policies/ acts, which hurt the sentiments of a section of people of the society. Liberalism is based upon an argument that it is the duty of the government to ensure the right of an individual person to life, liberty and property. This moral outrage should not be considered as an act, which might hurt the society at large. Individual independence can be restricted only when the act is believed to be such, which causes damage to individual or to the public. Mill, considered encroachment of the state on individual liberty as ‘illegitimate’ so long as it is applied to curb the rights of the people. The focal issue, he believed was to build up a perceived standard by which the legitimacy or inappropriateness of government obstruction could be estimated. Mills, like other scholars of utilitarian school dismissed custom as a guide for utility. According to him, if the individual is causing destruction in the face of protest then there is reasonable ground for curbing the act and punishing the individual(s) involved. (Ugland, 2020) The Court while exercising its power needs to demonstrate the reason or theory behind its opinions and if it imposes its own value choices without any justification then the Court would be violating the powers granted to it[2]. Further the Supreme court should base its decision upon the original intent which the framers had in mind while framing the constitution. Utilitarian theory of liberty relies upon the intent of the framers. The scholars who believed in the original intent theory believed that the decisions passed contrary to tradition and legal precedent. Some of the examples of such cases are Roe v. Wade[3], Brown v Boards of Education[4], Baker v. Carr[5], New York Times Co. v. Sullivan[6], Reed v. Reed[7], Griswold v. Connecticut[8]. Liberalism aims at constructing an institution, which limits political power for the purpose of protecting individual freedom. Minimal political morality was also one of the ideas proposed by Jeremy Waldron.[9] He believed that society’s work and principles should be transparent and up for and that orders require consent of all the subjects involved scrutiny. Freedom to protest is exercised when people have knowledge to know that one mode of existence is preferable to another and their government ought to provide them with reforms, which enable them to exist in their preferred environment.

Fragan J., while stating the reasons for passing the order[10] mentioned that he believed that the cause of the protest was widely supported but it was upon the Court to decide the consequences that the protest would have on the people who would not be taking part in the protest. He believed that he did not fear that the protestors might cause disruption by an unlawful conduct. He stated that he did not assess the issue on the statement by the commissioner of that the media coverage of the issue might enhance the risk of the gathering being violent rather he believed that the people would be even more cautious during the protest so as to not tarnish the merits of their cause. But, because of the present health crisis and its demand for social distancing, he believed that the gathering would cause cluster of infections and the safety measures proposed by Mr. Bassi would be rigorously followed by the protesters. Overall, he judgment was passed keeping in mind the inherent right to assemble and the current health crisis in the country. It is the duty of the court, to find a balance between the rights of the people and ensuring the well-being of the society at large. The Court stated that the right to assemble was not being violated but is deferred. View of John Mill in On Liberty[11] centers around the idea of liberalism and that the governmental authorities can impose limitations on the right or liberty of people only when the intention behind it is to prevent harm to others.

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