Is the Right to Protest in India a protected Fundamental Right? By using prohibitory tools on its people, the Government is limiting democratic practices and irrevocably diluting Article 19

26, Nov 2020 | Adeeti Singh

The seeds of protest were sown deep during our independence struggle, making protest an important and indelible chapter in India’s history. Today, our country is witnessing an extraordinary wave of protests- by farmers, minorities, students, activists against the current regime.

It must be unequivocally emphasised that the Constitution of India gives its citizens the right to freedom of speech and expression, assemble peacefully and without arms, to form associations and unions and to move freely throughout the territory of India under Article 19(1) (a), (b), (c) and (d).

But over the years, there is lament that the very institution which is required to be a bulwark, has fashioned itself as a threat to these basic constitutional freedoms.

SC’s decision on Right to Protest

The top court has held that the right to protest in public places is not absolute in law. Public places cannot be occupied indefinitely. Such kind of occupation of public ways (protests), at the site of question or anywhere else for protests “is not acceptable and the administration ought to take action to keep the areas clear of encroachment or obstructions”. (Amit Sahni v Commissioner of Police and Ors Civ App. No. 3282 of 2020).

The three-judge Bench of Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari also made it amply clear that the erstwhile manner of dissent against the colonial rule cannot be equated with dissent in a self-ruled democracy. Further, the Bench said while dissent and democracy go hand in hand, “demonstrations expressing dissent have to be in a designated place alone.” So while the Azad Maidan in Mumbai and the Jantar Mantar in Delhi act as the “marked” areas, India’s streets are bereft of the will of the people. Worse, a de-democratised government functions without being held accountable to the people’s organised voice.

The courts must now interpret the freedom to dissent and express in a manner that protects the interests of the general public as well as the protestors. A fundamental right cannot be demoted for organisational reasons to suit a political narrative. Democracies can only thrive on the principles of ethics and public morality.

Of liberties and expressions

The right to have different opinions and express through peaceful agitations is important to any democracy. In Re-Ramlila Maidan Incident Dt vs Home Secretary and Ors (W.P Crl No. 122 of 2011), the Supreme Court contextualised freedom of speech and expression as the essence of a democratic system. “There could be no expression without these rights. Liberty of thought enables liberty of expression. Attainment of the preambled liberties is eternally connected to the liberty of expression.” That was then and this is now.

But these rights come with terms and conditions. Article 19(2) authorises the government to make laws and impose restrictions on the freedom of speech in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

In the case of S. Rangarajan v. Jagjivan Ram (1989) 2 SCC 574, the Supreme Court noted, “the problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight.”

Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”, as significantly observed by the top court.

Indian Farmers through tactics of waving black flags, blocking roads, railways and gheraoing (surrounding) facilities of corporations to simply be heard and have their grievances addressed needs to be pedestalised more than the alleged inconvenience caused to the general public.

They fear the corporatisation of the agricultural sector and the end of the minimum support price guaranteed to them by the Government on certain commodities. This is not dangerous to public interest but in favour of it. Using water cannons against them, sealing borders to limit tactics to agitate, labelling dissenting farmers as non-conformist elements is violative of the spirit of our Constitution.

The Government has also come down heavily on the Shaheen Bagh peaceful protests, journalists, students and activists who assembled near different regions of the country against the newly amended citizenship law that offers citizenship on the basis of religion and discriminates against Muslims by excluding them. People gathered at all parts of the country, read the Preamble out loud, sang, cheered, raised slogans. Nothing could prove more peaceful than that.

The devil lies in the details within section 144 of Cr.PC

The pre-emptive steps by the State through imposition of section 144 of the Code of Criminal Procedure, detaining protestors in vans and dropping them off at the outskirts of cities, making arrests, registering false FIRs, resorting to lathi charge, is not only illegal but throttles the exercise of such rights.

Section 144 of the Cr. PC that empowers the Magistrate to issue orders in ‘urgent cases of nuisance’, erodes the foundation on which we have built our entire nation. It revolves around the idea of unlawful assembly and prevents people from assembling in a particular place to protest or agitate.

This prohibitory order of section 144 found its way in Indian law during the British rule to clamp down nationalist voices during the freedom struggle. Years later, it continues to survive with a very strong presence almost rendering our democracy mute. The wide powers under this section automatically narrows down the successful exercise of the right to protest. Clearly, a section to be used in times of emergency and immediate threat to the society, it is being exploited as routine.

To fight the political class that enjoys enormous power, collective pressure through mediums of protests and social media is the only way to empower Indians. As T.N Krishna correctly pointed out, “public spaces are crucial to empower people, make them heard, and bring some parity into discourse. There is little value in speaking about public inconvenience without addressing the limitations that are placed on our right to protest.”

In Himat Lal K Shah vs Commissioner of Police, 1973 AIR 87, the Supreme Court had observed that even though citizens can not form unions and associations “in whatever place they please, nevertheless the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place.”

The Government must make arrangements to ensure that dissenting voices are heard and at the same time the general public is not inconvenienced. But, by eliminating peaceful and democratic protestors from streets and public places with use of force and excessive measures, India will remain a democracy with empty promises.

The Union Government has expressed its dismay with the organised protests across the country, much of it that originated from Kanhaiya’s campus (JNU) which is quite ironic as the Bharatiya Janata Party (BJP) assumed recognition using the same tactics- student activism.

Political stalwarts like Arun Jaitley, who led the Delhi University Student Union on numerous occasions were part of more extreme protests, hitting the streets, burning college buildings clashing with police calling for a sampoorna kranti (total revolution) as Jay Prakash Narayan would call it, against some governments specially originating in Bihar and Gujarat and then spreading its tentacles to different regions.

This Constitution Day, one can incorrigibly work to push back the manipulative mechanisms of the State and preserve the rights and values enshrined in it.


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