Author: Abhishek Parmar, III year of B.A.,LL.B.(Hons.) from Jagran Lakecity University, Bhopal
People's voices are important. They have the right to express themselves, share information, and call for a better world. They also have the right to agree or disagree with those in power and to peacefully oppose their views. Living in an open and fair society, where people can seek justice and enjoy their human rights, requires exercising these rights without fear or unlawful interference.
Dr. Martin Luther King Jr has rightly said that - "The ultimate tragedy is not the oppression and cruelty by the bad people but the silence over that by the good people."[i]
In a well-ordered society, every individual has a prima facie obligation to obey the law and to oppose or protest laws that are incompatible with the citizen's fundamental rights.
A protest is a gathering of people who come together to openly express their feelings about a social issue. Protests against the Citizenship (Amendment) Act (CAA) of 2019 at Delhi's Shaheen Bagh or farmers' year-long protest against the three farm laws from 2020 to 2021 are examples of recent protests across the country. The right to peaceful protest is guaranteed by India's constitution. In this post, we'll look at the Constitutional Right to Protest, its limitations, its importance, and various Supreme Court rulings on the subject. [ii]
Fundamental Rights are guaranteed in Part III of the Indian Constitution. The Supreme Court hasconstrued the freedoms protected by Part III of the constitution in several rulings. The goal was to put citizens in the driver's seat and hold the government accountable.
The seeds of protest, such as satyagraha, were sowed deep during India's independence movement, making protest a vital and indelible chapter in the country's history, leading constitutional writers to conclude that the right to protest is an essential aspect of human life.
The right to protest, to publicly criticize the government and attempt to persuade it to respond, is a fundamental political right of the people that arise directly from a democratic interpretation of different parts of Article 19. Although the Right to Protest is not expressly stated in the Fundamental Rights, it can be inferred from Article 19's Right to Freedom of Expression and Speech.
Right to Freedom of Speech – Article 19(1)(a)
The right to free speech and expression entails the ability to publicly express one's views on government actions.
Right to Freedom of Association- Article 19(1)(b)
The ability to build political organizations is essential. These can be organizedto raise collective objections to government actions.
Right to Freedom of Assembly – Article 19(1)(c)
Individuals have the right to peacefully assemble to question and object to government activities through demonstrations, agitations, and public assemblies, as well as to organize long-term protest movements.
People's right to protest means that they can function as watchdogs and constantly scrutinize the actions of governments. It gives governments feedback on their policies and actions, after which the concerned government identifies and corrects its mistakes through consultation, meetings, and discussion.
When these rights are united, anybody can peacefully congregate and demonstrate against the government's actions or inactions. The demonstrations are in support of democracy, with the goal of protecting the integrity of the country's flaws.
Under the strong leadership of Babasaheb Ambedkar, the authors of the Constitution put their hearts and minds into writing an inclusive Constitution for a varied India. As chairman of the Drafting Committee, Ambedkar was crystal clear on one point: the Constitution's purpose. He stated, “the Constitution is not a mere lawyer’s document; it is a vehicle of life and its spirit is always the spirit of the age”.
The fact that our Constitution balances citizens' rights and responsibilities is one of its most important features. These are societal constructs that have evolved over time, via tradition, and through use. The Constitution's citizens' obligations are essentially a codification of tasks that are fundamental to the Indian way of life, focusing on tolerance, peace, and communal harmony. A detailed examination of Article 51A's clauses reveals that several of them pertain to principles that have long been a part of Indian mythology, religion, and traditions.
The Constitution's Fundamental Rights chapter recognizes the importance of obligations. One is the right to free speech; however, Clauses 2 to 6 of Article 19 provide for reasonable limitations on the use of such rights. This means that when exercising one's rights, one must keep in mind one's responsibilities to these constitutional ideals.
Today, it is vital to stress the necessity of remembering our constitutional responsibilities for the sake of our country's growth. Democracy will not be able to take root in society unless citizens strike a balance between their natural rights and their basic responsibilities.
Restriction[iii] on Right to Protest
The right to freedom of speech and expression is subject to reasonable restrictions under Article 19(2). These reasonable restrictions are in place for the following reasons:
Sovereignty and integrity of India, Security of the State, friendly relations with foreign States,Public order, Decency or morality, Contempt of court, Defamation, and Incitement to an offense. Further, resorting to violence during the protest is a violation of a key fundamental duty of citizens.Enumerated in Article 51A, the Constitution makes it a fundamental duty of every citizen “to safeguard public property and to abjure violence”.
Importance of Right to Protest for Democracy
The active exercise of one's right to protest ensures that citizens function as watchdogs, always scrutinizing the government's acts and ensuring that they are carried out fairly.
The protests have significance because:
Protests have traditionally sparked positive social change and the progress of human rights, and they serve to encourage the identification and defense of civic space around the world.
Human Rights Advancement: Protests encourage citizens to become more involved and aware.
Contributing to all sectors of life: Protests play an important role in civic, political, economic, social, and cultural life in all societies.
Empowers Marginalized Groups: This is especially important for persons whose interests are neglected or ignored in other ways.
Strengthen Democracy: They aid in the promotion of representative democracy by permitting direct participation in public affairs.
Increases Accountability: They enable individuals and organizations to express their dissatisfaction and complaints, communicate ideas and opinions, expose governance flaws, and publicly demand that governments and other powerful institutions address issues and hold themselves accountable for their actions.
Supreme Court’s Judgements on the Right to Protest
The Supreme Court stated that while "democracy and dissent go hand in hand," "demonstrations expressing disagreement must be held only in specified venues." The Constitution protects the right to demonstrate and voice opposition, but it is accompanied by Fundamental Duties such as Article 51A, which declares that every citizen has a fundamental responsibility to defend public property and refrain from violence.
In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr. (1972), the rights provided under Section 33(1)(o) of the Bombay Police Act, 1951 were used to challenge the Commissioner of Police, Ahmedabad's rules. Before having public meetings, one of these restrictions required that prior authorization be acquired. The Supreme Court concluded that the state can only pass laws that promote each citizen's freedom to assemble and that reasonable limits can only be imposed for the sake of public order. The freedom to hold meetings on public streets was subject to the control of the relevant authorities over the time and venue of the meeting, as well as issues of public order, in evaluating whether these rules infringed Article 19(1)(b) of the Indian Constitution.
Ramlila Maidan Incident vs. Union of India's Home Secretary (2012)[v]: Citizens have a fundamental right to peacefully congregate and demonstrate, according to the Supreme Court, which cannot be taken away by arbitrary administrative or legislative action.
The Supreme Court of India held in Beenu Rawat v. Union of India (2013) that rights and obligations must be balanced. While everyone has the right to criticize unjust government action, protesting against police activity (or inaction) is particularly risky since fundamental rights are more likely to be infringed. At the same time, protesters were unable to bring the state's machinery to a halt. People had the freedom to demonstrate, but they also had a responsibility to follow the law. The role of the police was to keep peace. In this sense, there must be a balance because "rights without responsibilities tend to develop into a license for the misuse of rights."
In another decision, Anita Thakur v. the State of J&K (2016), the Supreme Court ruled that there is a basic right to protest and organize peaceful assemblies using freedom of speech and expression. Force could only be used to disperse these assemblies if they became illegal. The Court did warn, however, that the use of force must be reasonable and not excessive.
Mazdoor Kisan Shakti Sangathan v. Union of India & Anr. was cited in the Shaheen Bagh decision (2018) The key point of argument here was whether the resulting disturbances to residents were a wider public interest for which the freedom to protest in that location might be limited. There had to be a balance between everyone's rights. In this case, the court determined that the contested demonstration was causing substantial harassment to the residents. Simultaneously, the protest site, Jantar Mantar, was a regular spot for protests and was also recognized by the authorities. As a result, the Court ordered the authorities to develop suitable and necessary standards for regulating protests in the region.
The court upheld the right to peaceful protest against laws in the Shaheen Bagh decision of 2019 but clarified that public roadways and public areas cannot be occupied indefinitely. Fundamental freedoms do not exist in a vacuum. The protestor's right must be balanced against the commuter's right, and both must coexist in mutual respect.
In Anuradha Bhasin v. Union of India (2020), the Supreme Court distinguished between "law and order" and "public order," stating that public order limitations require a higher bar for activation. A minor annoyance cannot be considered a credible threat to the public's safety. However, the Court did not explain why the inconvenience was a proper premise for reasonable limits to be implemented in this case.
“When it gets down to having to use violence, then you are playing the system’s game. The establishment will irritate you – pull your beard, flick your face – to make you fight. Because once they’ve got you violent, then they know how to handle you. The only thing they don’t know how to handle is non-violence and humor.”― John Lennon
Protesting against injustice is not only a fundamental right provided by the Indian Constitution, but it is also a moral obligation. By now, we've established that the right to protest is protected by the constitution. It is regarded as 'precious' in some cases to secure the right to free expression and peaceful protest, and it should be maintained in all circumstances. However, these rights are not absolute in nature and should be subjected to reasonable constraints, as stipulated under Article 19(2), which is critical in the interests of the country's sovereignty and integrity. Fundamental rights do not exist in a vacuum, and the rights of protestors and commuters should be balanced. The court's main point is that peaceful protest is a basic right of protestors and should be tolerated. However, if a protest infringes on the rights of others, generating serious concerns for the general public, such as the possibility of a blockade, discomfort, or a protest that interrupts daily life, the right to protest can be prohibited.
[i]Birminghamtimes.com, https://www.birminghamtimes.com/2018/01/some-of-dr-martin-luther-king-jr-s-profound-quotes/. [ii]India.com,https://www.india.com/news/india/year-ender-2020-from-anti-caa-in-shaheen-bagh-to-farmers-protest-top-10-plights-of-modi-government-in-2020-4288984/. [iii]Byju;s, https://byjus.com/free-ias-prep/freedom-of-speech/. [iv] Ipleader, https://blog.ipleaders.in/shaheen-bagh-judgment-right-protest-india/. [v]Legalserviceindia, https://www.legalserviceindia.com/legal/article-7887-right-to-protest-in-india.html.