Right to Protest
Right to Peaceful Protest and Public Interest
● Recently, the Supreme Court upheld the right to peaceful protest but made it unequivocally clear that public ways and public spaces cannot be occupied, and that too indefinitely.
● The Supreme Court said that in relation to the Shaheen Bagh protest over the Citizenship Amendment Act (CAA) in Amit Sahni vs Commissioner of Police case(2020). The court also observed that such occupation of public places through protest "is not acceptable and the administration ought to take action to keep the areas clear of encroachment or obstructions".
● The Supreme Court, however, clarified that: "Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of the protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters."
1. The right to protest cannot be allowed against the public interest. Critically examine in light of the Supreme Court Judgements.
The right to peaceful protests:
● The Right to protest peacefully is enshrined in the Indian Constitution—Article 19(1)(a) guarantees the freedom of speech and expression; Article 19(1)(b) assures citizens the right to assemble peaceably and without arms.
● Like other fundamental rights, the right to protest is subject to "reasonable restrictions". These restrictions relate to protecting the sovereignty and integrity of India, the security of the State, friendly relations with foreign countries, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
● Article 20 of the Universal Declaration of Human Rights (UDHR), combined with Article 19's freedom of expression, together ensure the right to gather publicly or privately and collectively express, promote, pursue and defend common interests.
Landmark Supreme court Judgements:
● In a 1973 case of Himat Lal K Shah vs Commissioner of Police, the Supreme Court held that the citizens cannot stage a protest by forming unions and associations at "whatever place they please".At the same time, it held that the government "cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place".
● In the 1989 case of S Rangarajan vs Jagjivan Ram, the Supreme Court said, "Our commitment to 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."
➢ On the question of "danger", the Supreme Court said, "The anticipated danger should not be remote, conjectural or far-fetched. It should have a proximate and direct nexus with the expression."
● In the 2011 case of Ramlila Maidan Incident vs Home Secretary - relating to anti-black money agitation, the Supreme Court held the right to freedom of speech and expression as the essence of a democratic system.
➢ The Supreme Court said, "There could be no expression without these rights. Liberty of thought enables liberty of expression. Attainment of the preamble liberties [of thought, expression, belief, faith, and worship] is eternally connected to the liberty of expression."
● Significance of Right to Dissent in electoral democracy:
➢ Checks & Balances: The right to association & peaceful assembly allows political parties & citizens to question and object to acts of the government by demonstrations, agitations.
➢ People as Watchdogs: People provide feedback to the governments about their policies and actions and act as watchdogs & monitor governments’ acts.
➢ Historical Context: Our experience of anti-colonial struggle makes us understand the importance of protest & dissension in the political system.
➢ Inclusion & Participation: Protests have also offered points of inclusion and participation to the voices that are not part of the mainstream. e.g. protests for the creation of Andhra or the Chipko movement.Abraham Lincoln had once noted that “the right of the people to peaceably assemble is a constitutional substitute for revolution”.
➢ Acting as Cushions :Elections are periodical. During the period of two elections
non-violent protest is one of the methods of disapproval of government policies
Right to protest vs other Rights:
● The Constitution seeks a balance between the freedom of speech guaranteed in Article 19 (1) (b) and social order as defined in Article 19 (3).
● With regard to the ‘indefinitely holding of public places’ SC in 2020 held “Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter and has to co-exist in mutual respect.”
● A citizen's rights end where another citizen's rights begin. If one has a right to speak, another has a right to object.
● The essence of democracy is the right to have an alternative opinion.
● The right to protest cannot be used for creating a nuisance for others. A fundamental right of one person should not infringe on the rights of others.
● Proper guidelines should be framed on the issue of the right to protest so as to ensure a balance between the fundamental right of the citizens to protest and the maintenance of law and order.
● Along with fundamental rights, the constitution also enshrined fundamental duties for citizens. Resorting to violence during public protests is a violation of the fundamental duty described in the Constitution.