How free are all Indians to exercise their right to peacefully protest under Article 19? A fundamental right overshadowed by government retaliation
03, Sep 2024 | CJP Team
Howard Zinn, a Word War II veteran famously said, “Protest beyond the law is not a departure from democracy; it is essential to it” but when protesters –especially in India, selectively suffer retaliation from authorities, these acts undermine the fundamentality of the right to dissent and the whole idea behind Right to Freedom and Expression, enshrined under the Indian Constitution as a fundamental right.
Increasingly, protests are seen and viewed, by executive authorities, even courts through a political lens. Which protests, who are the protesters, what is the issue being protested and which states (and by implication) which state governments get up-ended by widespread protests, by extension which protests must be curtailed which “allowed.” Never mind that this right remains enshrined –at least on paper– under Article 19(1)(a)[1] and 19(1)(b)[2] of the Indian Constitution. Dissent is one of the fundamental pillars of any democracy and this is incorporated as fundamental right under the Indian Constitution. However, an increasingly elite and autocratic state is impatient with sloganeering marches on its streets.
A tale of two views: Courts restricts protesters rights
On August 23, the Bombay High Court restrained the opposition, Maha Vikas Aghadi (MVA) from carrying out a state-wide “Bandh” in Maharashtra proposed on August 24, 2024. The said “Bandh” was called by MVA, a political coalition of Congress, NCP (Sharad Pawar) and Shiv Sena (UBT) in the state to protest against the failure of state government in handling the twin Badlapur sexual abuse case. A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar held that “Until further orders, all parties are restrained from proceeding with the bandh on August 24 or any other subsequent date.” The high court passed this order against a ‘Public Interest Litigation (PIL)[3] was filed seeking a declaration that the proposed bandh is illegal and unconstitutional. Following the high court ruling on August 23, the MVA withdrew its Maharashtra Bandh call but leaders and protesters still held sit-ins state-wide.
This decision of the Bombay high court needs scrutiny in view of the several weeks’ longs protests in West Bengal where protesters of all colours and hues have been taking to the streets to express anguish at the ghastly and violent murder-rape of a young doctor at the RG Kar hospital in early August. In fact only day before yesterday, on August 28, the state unit of the Bharatiya Janata Party (BJP) in West Bengal not only called for a state wide 12-hour-long “Bandh” to protest against the police action against the demonstrators during a march to the state secretariat. This was despite the violent attack by protesters in the BJP sponsored protest march on August 27 a day before. (The march to West Bengal Secretariat ‘Nabanna’ was organised by the ‘Paschim Banga Chatra Samaj’ and other organisations, outfits that are reportedly close to the BJP). Contrary to the decision of the High Court in Maharashtra, the Calcutta High Court rejected the ‘PIL ‘filed against BJP’s 12-hour bandh even as just four days before, in Maharashtra, the Bombay high court restrained the opposition parties from organizing a “Bandh” against a BJP-Shiv Sena (Shinde) government.
Which protest is in, which out
The dominant Indian political elite is impatient with and contemptuous of democratic protests when they question government policies, be it the enactment of the Citizenship Amendment Act (2019) or the three contested Farm Laws. The right under Article 19(1)(a) and (b) includes the right to express dissenting opinions, criticize the government, and engage in peaceful protests and demonstrations. Though not absolute and subject to reasonable restrictions under article 19(2) 3 in the interest of various factors such as public order, security and morality, India has itself had a rich tradition of peaceful dissent and non-violent protest like “Satyagraha (1906)”, the non-violent resistance by Mahatma Gandhi in the early 20th century. All pre-Independence.
However, this fundamental right protected by the Constitution has been effectively limited, even curtailed by the near-permanent imposition of Section 144 of the Code of Criminal Procedure (Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023). No better example than the curtailing of the Constitutional vision by executive diktat. If Delhi’s protest site(s) has been confined to a completely barricaded Jantar Mantar, Mumbai’s Hutatma Chowk is also out of bounds for protesters except possibly for rare exceptions on a Sunday when the central business district is shut anyway! Or else it is a small demarcated spot at Azad Maidan where too visibility for protesters is negligible. Anywhere else in the larger metro towns and the police, aided often by orders of high courts limiting protest sites, swoop down on protesters. In fact, any meeting, even in hall spaces is monitored by local police stations in careful compliance of the venue authorities making a farce and mockery of the “freedom to protest” in a sense.
Apart from this mean method of executive (read police) diktat the inalienable fundamental right to peaceful protest has also been severely curtailed and affected through unlawful and extrajudicial reprisals from governments. Techniques used include bulldozing homes in reprisal, irregular and unlawful detentions, false implications under the Unlawful Activities (Prevention) Act, 1967 and National Security Act, 1980, the unilateral and frequent suspension of internet connectivity, raid and illegal seizures of premises of the demonstrators etc.
Between words and action, Supreme Court jurisprudence on the right to protest
The demolition of houses in retaliation becomes an infamous government action against the demonstration despite the fact that Supreme Court warned the government that demolitions “can’t be retaliatory”[4]. In 2022, when demonstrators, mostly Muslims, demanded the arrest of Nupur Sharma and Naveen Jindal for alleged derogatory remarks over the Prophet Mohammad, the Uttar Pradesh’ government demolished the houses of the protesters accused of instigating violence amid nationwide protest over Sharma’s remark. The Supreme Court later cautioned the UP government over demolition but declined to order a halt to the demolition.
From Streets to Courtrooms: The Fight for Protester Rights
Shaheen Bagh Protest
The 101-day Shaheen Bagh protest survived vindictive state election and almost made it through the brute Delhi riots of 2020. Consistent efforts were made to demonise and terrorise the protesters, especially because they hailed from India’s largest minority, Muslims. The protest has been identified by large sections of Indians as a symbol of courage and determination. [“Bilkis Dadi,” an eighty-two-year-old Indian woman who was the one of the faces of the protest was listed on 100 “Most Influential People of 2020” of Time magazine.]
It was the violent police action by the Delhi police against peacefully protesting students of the Jamia Milia Islamia University on December 15, 2019 that led to the sit in by community members, women of all ages, at the iconic Shaheen Bagh. Students had been vociferously but peacefully protesting the discriminatory amendments to the Citizenship Amendment Act, 2019 and the streets outside the historic university were came alive with vibrant graffiti for weeks.
On February 17, 2020, the Supreme Court’s division bench of Justice Sanjay Kishan Kaul and Justice K.M. Joseph appointed two interlocutors Senior Advocate Sanjay R. Hegde and Advocate & Mediator Sadhana Ramchandran to hold talks with the Shaheen Bagh protesters on pleas filed by Amit Sahni seeking clearance of road blockade due to the sit-in protests. The interlocutors submitted a report before the court, which was taken note of by the bench on February 24, 2020. The SC perused the report and found that the nature of demands was very wide and that it did look difficult to find a middle path towards at least facilitating the opening of the blocked public way.
In retaliation to this effective protest that was proving politically costly for the government, the Covid-19 pandemic and subsequent lock down call by the union government (March 16, 2020) was used as a trigger by authorities to crackdown and violently end the protest. Using the lock down as justification, several protesters were detained, and some faced charges under the Disaster Management Act and Indian Penal Code when, on March 24, 2020, Delhi Police and South Delhi Municipal Corporation (SDMC) officials arrived at the site in large numbers. Protesters were given extremely short notice to vacate the area, citing Covid-19 lockdown restrictions. When protesters refused to leave, police used force, detaining many and physically removing others. The protest site was demolished, with tents, banners, and belongings destroyed or confiscated. Later, the eviction sparked outrage, with many calling for the restoration of the protest site. The Delhi High Court even directed the authorities to restore the protest site, but with restrictions and the High Court also said that the eviction was carried out without following due process. By then, however, the widespread repression against youth leaders and lock down conditions came to the effective aide of a brute state action.
On October 7, 2020, Supreme Court’s three judges’ bench while delivering its judgement in Amit Sahni (Shaheen Bagh, In re) v. State, (2020) 10 SCC 439, [Shaheen Bagh Protest Case] observed that,
“India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy. Our constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. Article 19, one of the cornerstones of the Constitution of India, confers upon its citizens two treasured rights i.e. the right to freedom of speech and expression under Article 19(1)(a) and the right to assemble peacefully without arms under Article 19(1)(b). These rights, in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State. The same must be respected and encouraged by the State, for the strength of a democracy such as ours lies in the same. These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the police authorities concerned in this regard”. (Para 16)
The bench also appreciated the existence of the right to peaceful protest against a legislation. (Para 17)
CAA/NRC Protest 2020
Several student and youth activists –vocal yet peacefully protesting the CAA 2019 amendments were detained post March 2020 in the Modi 2.0 regimes worst ever crackdown on civil society, in the national capital. Apart from sections of the Indian Penal Code, the draconian UAPA law was invoked to ensure over four years and obstacles in grant of bail. Several young voices of this protest namely, former PhD scholar from the Jawaharlal Nehu University (JNU), Umar Khalid, student activist Gulfisha Fatima, Meeran Haider, Sharjeel Usmani. Sharjeel Imam and Safoora Zargar. Asif Tanha, Devangana Kalita and Natasha Narwal have faced incarceration. Of these Safoora, Asif, Devangana and Natasha are the only ones who got bail within a year from the Delhi High court.
On April 9, 2020, Delhi Police arrested Gulfisha Fatima, a Muslim student activist and member of the United against Hate group for her involvement in the Jaffrabad peaceful protest. To make a case in connection with the 2020 Delhi riots, she has been charged under multiple sections of the Penal Code, including rioting and assaulting a public servant. It is more than clear that Fatima, has been, however, targeted for leading peaceful protests opposing the religiously discriminatory Citizen Amendment Act (CAA). In May 2020, Fatima was granted bail in the Jaffrabad protest case (FIR 48/2020). However, she has been forced to remain in prison under the notorious FIR 59/2020. As of August 2024, Fatima remains in jail, awaiting trial. Her case highlights the ongoing crackdown on activists and the erosion of civil liberties.
Meeran Haider, a 28-year-old PhD scholar and activist, was arrested on April 1, 2020, under the Unlawful Activities (Prevention) Act (UAPA) in connection with the 2020 Delhi riots. He has been lodged in Tihar Jail since then, despite multiple bail applications. Haider’s arrest and detention have raised concerns about the erosion of liberty and the targeting of dissenting voices. His case highlights the misuse of UAPA to silence activists and scholars, undermining academic freedom and the right to express dissent. As of August 2024, Haider remains in jail, awaiting trial, with his liberty and future hanging in the balance. Haider has recently received interim bail for just a fortnight.
Sharjeel Usmani, a 25-year-old student leader and activist, was arrested on July 8, 2020, from Azamgarh, Uttar Pradesh, in connection with the Elgar Parishad-Maoist links case. He was charged under the Unlawful Activities (Prevention) Act (UAPA) and other sections for allegedly inciting violence and promoting enmity between communities. Usmani has been denied bail and has been lodged in Taloja Central Jail, Maharashtra. Despite multiple bail applications, he remains in jail, awaiting trial.
Sharjeel Imam, a student activist, was arrested from Jehanabad, Bihar on January 28, 2020, for allegedly delivering inflammatory speeches against the Citizenship Amendment Act at Aligarh Muslim University and Jamia Millia Islamia University. He was charged with sedition and UAPA and has been in custody since then. In March 2024, the Delhi High Court issued a notice on Imam’s bail plea and sought a response from the Delhi Police. On May 29, 2024, the Delhi High Court granted statutory bail to Imam in the sedition case. However, he will remain in jail in the Delhi riots larger conspiracy case involving UAPA charges.
JNU PhD scholar Umar Khalid remains behind bars and will have been in prison for four years, without trial. Khalid was charged under the Indian Penal Code, 1980 (IPC) for various offences including rioting (sections 147 and 148), murder (s 302) and unlawful assembly (s 149). Khalid was arrested on September 13, 2020, under the Unlawful Activities (Prevention) Act (UAPA), falsely implicated in connection with the 2020 Delhi riots. He has been lodged in Tihar Jail since then. Despite applying for bail multiple times, his requests have been denied. Khalid has alleged mistreatment and harassment in jail, including being placed in solitary confinement. His case has sparked widespread concern and outrage among activists, academics, and civil society members, who see his arrest as a clampdown on dissenting voices. As of August 2024, Khalid remains in jail, awaiting trial, with his health and well-being a subject of concern.
Safoora Zargar, a 27-year-old research scholar and activist, was arrested on April 10, 2020, under the Unlawful Activities (Prevention) Act (UAPA) for her alleged involvement in the 2020 Delhi riots. Despite being pregnant, Zargar was denied bail twice and spent over two months in Tihar Jail. Her arrest and detention sparked widespread outrage and concern about her health and well-being. On June 23, 2020, the Delhi High Court granted her bail on humanitarian grounds, considering her advanced pregnancy. Zargar was released from jail on June 24, 2020 and is still fighting her case. Similarly Ishrat Jahan also incarcerated for successfully being part of one of those who organised at Khureji along with Khalid Saifi and others. Finally Ishrat Jahan got bail in March 2022.
In the lead Asif Tanha judgement (June 2021), followed by findings in the cases of Devnagana Kalit the Delhi High Court passed substantive orders granting relief to the three student leaders. However an ever vindictive state was quick to move the Supreme Court to ensure that the path breaking precedent set in these cases did not benefit other youth leaders in jail on similar grounds.
The Delhi High Court of Delhi had observed that the “Right to Protest not terrorist Act under UAPA” and High Court finds no prima facie case against student leaders Asif Iqbal Tanha, Natasha Narwal & Devangana Kalita. In the Natasha Narwal bail order, the Delhi High Court observed that “We are constrained to express, that it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it would be a sad day for democracy”
CJP’s detailed analyses of the these judgements may be read here and here
Farmers Protest 2020-2021
The historic months long protests by India’s farmers at the Ghaziabad and Tekri borders of the national capital because they were not allowed to enter Delhi and protest at Ram Lila Maidan, earlier “allowed” to the “anti-corruption” protesters” has been a study in determination and citizens’ action.
The union government’s response to the farmers’ protest was marked by a mix of repression, negotiation, and eventual repeal of the farm laws. Initially, the government deployed large numbers of police and paramilitary forces to contain the protests, leading to clashes and detentions of protesters. The government also attempted to discredit the protesters (an effort that continues to date with elected representatives of the ruling dispensation casting slurs) by labelling them as “anti-nationals” and “Khalistanis”. However, as the protests persisted and gained widespread support, the government was forced to negotiate with the farmers’ leaders. After multiple rounds of talks, the government agreed to repeal the three farm laws in November 2021, marking a significant victory for the farmers’ movement. Despite this, the government’s handling of the protests was widely criticized for its heavy-handedness and attempt to suppress democratic dissent. A staggering 700 farmers lost their lives in this protest, in large measure due to the callous attitude of the union government.
Prior to the 18th Lok Sabha elections, a renewed effort by the farmers to press their demands (unmet by the union government except to the extent of repealing unacceptable legislation) was met with brute state action at the Delhi borders, deployments of paramilitary troops, drones etc. leading even to the death of one more farmer and another losing his eyesight.
Efforts to get the courts to derail the protest were not entirely successful, however. On July 10, 2024, the division bench of Punjab and Haryana High Court while upholding the right to protest held that “In Democracy farmers can’t be stopped from entering state. Similarly, on, March 12, 2023, the Supreme Court refused to entertain Ex-BJP MLA’s plea to remove protesters from Delhi boarders[5]. (The SC directed the petitioner to address the matter in the Punjab and Haryana High Court, where the issue is currently under consideration).
Indian women wrestlers protest their sexual harassment
Another protest at the national capital that has evinced national attention is the sustained protests by women wrestlers Vinesh Phogart, Sakshi Malik and others in late 2022 and early January 2023.
On January 18, 2023, Vinesh Phogat and Sakshi Malik, two of India’s most esteemed women wrestlers, have come forth with accusations of sexual harassment against BJP MP and the then Wrestling Federation of India (WFI) head Brij Bhushan Sharan Singh. Since January of 2023, wrestlers had gone ahead and staged a protest at Jantar Mantar in New Delhi to bring this issue to light and seek justice for herself and the other allegedly exploited women wrestlers. The said protest had been paused on assurances that action will be taken on the claims being made by the women wrestlers, however no such thing happened.
Despite the initial silence, the wrestlers’ voices gained momentum, culminating in a historic protest in June 2023. A sit-in protest led by Vinesh Phogat, Sakshi Malik, and Bajrang Punia was then organised at Jantar Mantar to demand Wrestling Federation of India’s Chief and BJP MP Brij Bhushan Sharan Singh’s resignation, reforms in the WFI, and justice for the victims of the sexual harassment. However, even the women wrestlers who were exercising their right to peace protest had to face abuse at the hands of the Delhi Police, more than one time.
On May 3, late-night trouble had erupted for women champions camping day and night at Jantar Mantar. India’s women champion wrestlers had been reportedly abused by Delhi Police officers. According to the wrestlers, the Delhi Police had physically stopped them from replacing mattresses that got wet due to rain, resulting in the scuffle. “The mattresses got wet due to rain, so we were bringing folding beds for sleeping, but the police did not allow that. Drunk policeman Dharmendra abused Vinesh Phogat and got involved in a scuffle with us,” former wrestler Rajveer told PTI.
Several videos of the wrestlers had gone viral on social media, showing them being surrounded by a couple of cops who misbehaved with them. It had even been claimed by the wrestlers that male police officer had pushed women wrestlers without any women officer being present and that two protestors have even been injured. Reportedly, a drunk cop had also misbehaved with them, hurled abuse at female wrestlers, and even manhandled them at the protest site. The wrestlers had gone live on their respective social media accounts to report the incident.
Later, on May 29, the Delhi Police had used force on the protesting wrestlers with an attempt to disperse them using force. The protesting wrestlers were detained while trying to march to the new Parliament building in New Delhi as they resolved to intensify their protest demanding the arrest of Brij Bhushan. The wrestlers, including Vinesh Phogat and Sakshi Malik, were dragged and detained by police personnel, sparking widespread outrage. On the same day i.e. May 28, the Delhi Police was also registered an FIR related to rioting and other offences over the scuffle with protesting wrestlers in the national capital under the sections pertaining to rioting, offence by a member of an unlawful assembly, obstructing public servant from discharge of duty, disobedience to an order promulgated by a public servant, causing hurt to a public servant in discharge of duty, using criminal force to stop public servant from performing duty, and under the Prevention of Damage to Public Property Act was registered at Parliament Street police station. The police action was widely condemned as excessive and unwarranted, with many questioning the government’s heavy-handed response to the peaceful protest. The International Olympic Committee (IOC) was also condemned the police action over the wrestlers.
Parallelly, a plea had been filed by the wrestlers in the Supreme Court to direct the Delhi Police to file an FIR against Brij Bhushan. Supreme Court’s inaction in the wrestler protest reached an end on May 4, 2023, when it chose to close the petition filed by three women wrestlers. The Supreme Court closed the petition filed by three women wrestlers, who have represented the country in prestigious international events, taking note of the fact that FIRs have been registered by the Delhi Police against Wrestling Federation of India (WFI) president Brij Bhushan Sharan Singh over alleged sexual harassment. A bench comprising Chief Justice of India DY Chandrachud, Justice PS Narsimsha and Justice JB Pardiwala noted that the petition was filed seeking FIR and with the same being registered, the purpose has been served. The bench granted liberty to the petitioners to approach the jurisdictional magistrate or invoke the remedy under Section 482 CrPC before the Delhi High Court in case of any further grievances.
Despite the seriousness of the allegations of sexual harassment and the refusal on the behalf of the Delhi Police to file an FIR, the Supreme Court had relied on the Delhi Police’s assurance of there being an impartial investigation after filing of the FIR. Investigation. The petitioners’ lawyer Senior Advocate Narender Hooda had requested the bench to monitor the investigation, taking into account the conduct of the Delhi Police in refusing to take action till the Supreme Court’s intervention. However, the bench turned down this plea and said that it has given liberty to petitioners to invoke other remedies.
The court’s refusal to issue any concrete direction allowed Singh to continue as WFI president until June 16, 2023, when the government finally formed an oversight committee to investigate the allegations. The committee’s report led to Singh’s resignation on July 13, 2023, but the Supreme Court’s failure to take decisive action earlier had allowed the crisis to drag on for months, leaving the wrestlers feeling vulnerable and betrayed.
It is also essential to note that out of the seven wrestlers that had come forth with their complaints, the sole minor complainant had withdrawn her complaint in June with the father of the minor complainant coming out in the open about the threats he has been facing, and the amount of pressure they had been facing. The Hindu reported that the father of the said that he was threatened by people whose names he couldn’t reveal and “his family is living in intense fear”.
Supreme Court jurisprudence on Article 19 (a)(a) and (b)
- Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1
Hunger Strike: In the famed Ramlila Maidan case [(2012) 5 SCC 1)], the Hon’ble Supreme Court observed that “the threat of going on a hunger strike extended by Baba Ramdev to personify his stand on the issues raised, cannot be termed as unconstitutional or barred under any law. It is a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence of India”. (Para 209)
Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action. The law prescribes no requirements for taking of permission to go on a fast.
The Indian Constitution spells out the right to freedom of speech and expression under Article 19(1)(a). It also provides the right to assemble peacefully and without arms to every citizen of the country under Article 19(1)(b). However, these rights are not free from any restrictions and are not absolute in their terms and application. Articles 19(2) and 19(3), respectively, control the freedoms available to a citizen. Article 19(2) empowers the State to impose reasonable restrictions on exercise of the right to freedom of speech and expression in the interest of the factors stated in the said clause. Similarly, Article 19(3) enables the State to make any law imposing reasonable restrictions on the exercise of the right conferred, again in the interest of the factors stated therein. (Para 7)
The Judgement can be read here:
- Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, (1973) 1 SCC (Cri) 280
“Freedom of assembly is an essential element of any democratic system. At the root of this concept lies the citizens right to meet face to face with others for the discussion of their ideas and problems — religious, political, economic or social. Public debate and discussion take many forms including the spoken and the printed word, the radio and the screen. But assemblies face to face perform a function of vital significance in our system, and are no less important at the present time for the education of the public and the formation of opinion than they have been in our past history. The basic assumption in a democratic polity is that Government shall be based on the consent of the governed. But the consent of the governed implies not only that the consent shall be free but also that it shall be grounded on adequate information and discussion. 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 the only possible arenas for the effective exercise of their freedom of speech and assembly.”
(Para 69)
“If the right to hold public meetings flows from Article 19(1)(b) and Article 19(1)(d) it is obvious that the State cannot impose unreasonable restrictions. It must be kept in mind that Article 19(1)(b), read with Article 13, protects citizens against State action. It has nothing to do with the right to assemble on private streets or property without the consent of the owners or occupiers of the private property.” (Para 35)
The Judgement can be read here:
- Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324
“The right to protest is, thus, recognised as a fundamental right under the Constitution. This right is crucial in a democracy which rests on participation of an informed citizenry in governance. This right is also crucial since it strengthens representative democracy by enabling direct participation in public affairs where individuals and groups are able to express dissent and grievances, expose the flaws in governance and demand accountability from the State authorities as well as powerful entities. This right is crucial in a vibrant democracy like India but more so in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities. (Para 54)
The Judgement can be read here:
- Amit Sahni v. Commissioner of Police and Others, (2020) 10 SCC 439
“India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy. Our constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. Article 19, one of the cornerstones of the Constitution of India, confers upon its citizens two treasured rights i.e. the right to freedom of speech and expression under Article 19(1)(a) and the right to assemble peacefully without arms under Article 19(1)(b). These rights, in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State. The same must be respected and encouraged by the State, for the strength of a democracy such as ours lies in the same. These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the police authorities concerned in this regard. [ See Ramlila Maidan Incident, In re, (2012) 5 SCC 1 : (2012) 2 SCC (Civ) 820 : (2012) 2 SCC (Cri) 241 : (2012) 1 SCC (L&S) 810] Additionally, as was discussed in Mazdoor Kisan Shakti Sangathan case [Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324], each fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right. It was in this respect, that in this case, an attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters.
(Para 16)
The Judgement can be read here:
- Anita Thakur v. State of J&K, (2016) 15 SCC 525
We can appreciate that holding peaceful demonstration in order to air their grievances and to see that their voice is heard in the relevant quarters is the right of the people. Such a right can be traced to the fundamental freedom that is guaranteed under Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. Article 19(1)(a) confers freedom of speech to the citizens of this country and, thus, this provision ensures that the petitioners could raise slogan, albeit in a peaceful and orderly manner, without using offensive language. Article 19(1)(b) confers the right to assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. Right to move freely given under Article 19(1)(d), again, ensures that the petitioners could take out peaceful march. The “right to assemble” is beautifully captured in an eloquent statement that “an unarmed, peaceful protest procession in the land of “salt satyagraha”, fast-unto-death and “do or die” is no jural anathema”. It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest. Organised, non-violent protest marches were a key weapon in the struggle for Independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution. (Para 12)
The Judgement can be read here:
How free are Indians then to exercise their constitutional right to protest?
Before assuming the present post, Chief Justice of India, DY Chandrachud had famously said, “Blanket labelling of dissent as an-national hurst ethos of democracy.” He called dissent a “safety valve: of democracy”. (February 15, 2020, in Ahmedabad (Gujarat speaking on “The hues that make India: From plurality to pluralism” at the 15th Justice PD Desai Memorial Lecture), Similarly, in 2021, former Supreme Court judge, Justice Ravindra Bhat said in a lecture that “The promise of free speech or free association would be of little use if a segment of the population threatens the free enjoyment of rights by others; rights would only be academic then. The State must act actively engage in the promotion of fundamental rights, in upholding the freedom of thought, expression, and of legitimate speech which can be contrary to the dominant discourse, freely expressed without fear of reprisal by private entities or collectives”
For sure, the Indian Constitution safeguards, in principle, the right to protest through Article 19(1)(a) guarantees the freedom of speech and expression, which includes the right to express dissent and protest. Article 19(1)(b) ensures the freedom to assemble peacefully and without arms, enabling citizens to hold protests and demonstrations. Article 21 also protects the right to life and liberty, which encompasses the right to protest against unjust laws and policies. Furthermore, Article 14 ensures equality before the law, preventing discrimination against protesters. Article 25 guarantees the freedom of conscience and free profession, practice, and propagation of religion, allowing citizens to protest against policies infringing on their religious rights. The Constitution also provides safeguards against excessive police action, such as Article 22, which protects citizens against arbitrary arrest and detention. These provisions collectively ensure that citizens can exercise their right to protest without fear of reprisal or persecution, fostering a democratic and inclusive environment.
Thus, the right to protest is a fundamental aspect of democracy in India, enshrined in the Constitution, but it faces significant challenges from government actions that often seek to suppress dissent. The right to protest is intrinsically linked to the essence of debate and discussion in a democratic form of government. It allows citizens to express dissent, challenge policies, and engage in constructive dialogue with the state. This, in turn, fosters a culture of transparency, accountability, and participatory governance.
However, as can be seen, the application of these lofty constitutional principles is selective, some protests being allowed or favoured, others shunned or frowned upon. Equally concerning is that on one hand we have our Constitution –with its lofty uplifting principles, on the other hand the governments (union and state) has effectively evolved the (mis) use of the omnipresent executive diktat, the misuse of Section 144 of the Code of Criminal Procedure (Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023) which remains the all manifest rule not the exception. There are also on India’s statute books, preventive detention laws (indiscriminately used) and those like the UAPA that have become the weapon of offense by the state to be selectively applied to protesters and protests.
So we ask, how free are all Indians to protest?
[1] Right to freedom of speech and expression
[2] Right to assemble peaceably and without arms
[3] The Bombay High Court delivered its order in the PIL, one filed by lawyer Jaishri Laxmanrao Patil through advocate Gunaratna Sadavarte, and another by Nandabai Sarjerao Misal, through advocate Subhash Jha – challenging the call for bandh contending that the same is illegal.
[4] Jamiat Ulama I Hind & Anr v UOI & Ors (WP(Crl) 162/2022)
[5] Nand Kishore Garg v. Union of India & Ors. | Writ Petition (Civil) No. 162 of 2024
Related:
Is the Right to Protest in India a protected Fundamental Right?
Press Release: CJP and AIUFWP condemn armed attacks on peaceful protesters
