Table of Contents
|If all mankind minus one were of one opinion, mankind would be no more justified, in silencing that one person than he, if he had the power, would be justified in silencing mankind. - JOHN STUART MILL
THE CONTEXT: India is witnessing unprecedented level of farmers’ protests across its territory demanding the government to repeal the three farm laws. Without going into the detail of these farm laws, let us try to understand the right to protest of citizens in India.
PROTEST- A FUNDAMENTAL RIGHT
When a group, community or even a person goes up to protest, it is usually to showcase their disapproval or demur against any action, policy, statement, etc of state or government or any organisation. Protests generally work in two ways, first, it helps a particular community or group or person to show their disagreement with the policy in question and second, it helps the government to identify the loopholes in their policy or action and work towards its betterment. Tracing the history of protests back to the pre-independence period:
- Protests in India has a long and eminent history. Until 72 years ago, India was a colony ruled by Britishers.
- In the post-independence era, its people became free citizens because of a long series of protests done by our freedom fighters.
- Mohandas Karamchand Gandhi aka Mahatma Gandhi, who is also known as the father of the Indian nation taught the Indians citizens, the power of peaceful protest.
- So, be it the Swadeshi Movement of 1905 or Satyagraha in 1930 these movements have shaped the history of the nation that was the peaceful protest against the colonial rule.
- Indians fought hard every battle to publicly express their views on colonial policies and to show dissent towards British colonization and to speak to and against the government.
While exercising or enjoying the right to peaceful protest, one must adhere to their duties or responsibilities in a democratic country.
CONSTITUTIONAL PROVISIONS THAT GIVE RIGHT TO PROTEST
|HOW IT GUARANTEES RIGHT TO PROTEST
|LIMITATIONS IMPOSED ON RIGHT TO PROTEST
|It guarantees the right to freedom of speech and expression. Thus, citizens have the right ot speak and thus be heard. So, citizens can accumulate at a place and speak their mind.
|The state can make any law imposing reasonable limitation on this fundamental right in the interest of -
1. Sovereignty and integrity of India,
2. The security of the State,
3. Friendly relations with foreign States,
4. Public order, decency or morality or
5. Contempt of court,
6. Defamation or
7. Incitement to an offence
|Right of citizens to assembly peaceably and without arms. It ensures that everyone has the right to accumulate as right to freedom of expression requires an audience for expressing this right
|The state can make any law imposing reasonable limitation on this fundamental right in the interest of -
1. Sovereignty and integrity of India
2. Public order
SUPREME COURT VERDICTS ON PROTEST
|Ramlila Maidan Incident v. Home Secretary, Union Of India & Otrs 2012
|Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action
|Maneka Gandhi vs. Union of India
|If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is absolutely essential.
|Interlocutors to Shaheen Bagh CAA protests 2020
|People have right to protest but it should not affect the right of other citizens.
The ShaheenBagh protests has led the Supreme Court intervention which has appointed interlocutors to mediate, without declaring the protest as unlawful. The judges, promptly and rightly so, spoke about the people’s fundamental right to protest even when the legal validity of the controversial legislation in question, namely Citizenship Amendments Act (CAA), remained disputed before the Supreme Court in separate proceedings.
ARE PROTESTS ALLOWED ON PUBLIC ROADS? IF YES, HOW AND WHEN THEY CAN BE ALLOWED? HOW ARE THE COURTS TO ACT WHEN THESE ISSUES COME UP?
A series of judgments starting from the Privy Council’s decisions may come handy to clarify all this.
THE PAST JUDGEMENTS ON PROTEST ON PUBLIC ROADS
|IN 1950, THE PRIVY COUNCIL HELD IN MANZUR HASAN VS MUHAMMED ZAMAN
|In India, there is a right to conduct a religious procession with its appropriate observances through a public street so that it does not interfere with the ordinary use of the street by the public, and subject to lawful directions by the magistrates.
|SAGHIR AHMMAD VS STATE OF U.P., 1955
|The Court defined the characteristics of a public roads when it stated as: “The true position then is, that all public streets and roads vest in the State, but that the State holds them as trustees on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user, as may be requisite for protecting the rights of the public generally.”
|RAILWAY BOARD VS NARINJAN SINGH (1969)
|Held that there is no fundamental right for anyone to hold meetings in government premises. It was observed: "The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please."
|IN 1972 WHEN A CONSTITUTION BENCH, IN HIMAT LAL K SHAH VS COMMISSIONER OF POLICE
|The right that flows from Article 19 (1) is not a right to hold a meeting at any place, at any time.
|IN ANITA THAKUR VS STATE OF J&K, 2016
|Right to protest is a fundamental right but these rights are subject to reasonable restrictions in the interest of the sovereignty and integrity of India, as well as public order. “It is for this reason, the State authorities many a times designate particular areas and routes, dedicating them for the purpose of holding public meetings,” said the top court.
|MAZDOOR KISAN SHAKTI SANGTHAN’S CASE
|In all such situations, the Court has to examine as to where lies the larger public interest while balancing the two conflicting rights. It is the paramount collective interest which would ultimately prevail. To put it differently, the greater community interest or interest of the collective or social order would be the principle to recognize and accept the right of one which has to be protected.
Given the body of judgments the apex court has delivered in the last six decades, the Supreme Court bench hearing the ShaheenBagh protests case might have taken a cue and decided the questions of legality and legitimacy itself, for all the judges involved in the cases cited hereinabove decided what was before them on the basis of sound constitutional principles.
All these judgments laid down comprehensive doctrines on people’s right to protest by relying upon the chapter on fundamental rights, judicial precedents and interpretations of laws while not waiting for a report from the ‘interlocutors’ or mediators. The judges simply acted to uphold the rule of law.
But in the ShaheenBagh protests case, the questions still loom large as to whether blocking public roads qualifies as causing public disturbances or creating a nuisance; whether the protesters could secure any permission to hold demonstrations on public roads indefinitely; whether authorities have taken any measures to maintain social and public order; whether the rights of the commuters have been infringed; whether there is a legitimacy to such protests.
| Dr. B.R. Ambedkar - Grammar of Anarchy
If we wish to maintain democracy not merely in form, but also in fact, what must we do? The first thing in my judgement we must do is to hold fast to constitutional methods of achieving our social and economic objectives. It means we must abandon the bloody methods of revolution. It means that we must abandon the method of civil disobedience, non-cooperation and satyagraha. When there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods. But where constitutional methods are open, there can be no justification for these unconstitutional methods. These methods are nothing but the Grammar of Anarchy and the sooner they are abandoned, the better for us.
HOW GOVERNMENT RESTRICTS PROTEST?
|Permission to Protest
|Any person that seeks to protest needs to get a no-objection certificate from the police by stating the reason of protest along with all other details of the protest. Police in its discretion can deny request if it feels that it endanger public order.
|Section 144 of CrPC
|This 1972 law authorises the Executive Magistrate of any state or territory to issue an order to prohibit the assembly of four or more people in an area. It also empowers the authority to block internet access.
HOW PROTESTS ENRICH INDIAN DEMOCRACY?
|Continuous Accountability of the government
|Protests against legislations or executive actions ensure that governments remain accountable to the people continuously and not once in five years. Now the government is not accountable just to legislature or judiciary but to people on a continuous basis.
|As suggested by Marxist scholars, state is to an extent is in control of capitalists due to the funding they provide to political parties. However, peaceful protests ensure that the state continue to function as a welfare state and don’t bend to the whims and fancies of the capitalists.
|Give a sense of belonging to people
|If people think differently, they may feel isolated, marginalised and powerless. Public demonstrations and marches empower people by showing them that there are thousands of people who think the same things.
|The classic theorists of representational government recognised that universal suffrage and majority voting threaten to impose the ‘tyranny of the majority’ and override the rights of minorities. Protests ensure that the rights of minorities are respected.
|Bring change overtime
|Sometimes, the protests fail to win majority support but overtime the debate started by this protest helps bring change overtime. It might be that the next generation, unencumbered by past thinking, see that the views of the protesters were just common sense. For example : Feminism, Black rights, Rights of LGBTQ communities, farmer rights etc have started bringing change in every next generation.
PROBLEMS WITH THE CONTINUING PROTESTS
|Prone to capture by vested interests
|The leaderless movements risk being captured by unsavoury elements with an ulterior agenda. The widespread use of word “Azaadi” typifies this problem.
|The protests fail to provide any alternative to the CAA and NPR. The protesters should be part of the solution and thus should provide alternative to the government legislations and not limit themselves to just criticisms.
|The protests suffer from mob mentality and lack knowledge of the true problems with the government action. Many join protest just for the sake of protesting and this mob mentality harm the true protesters as well as sanctify government repression.
RIGHT OF CHILDREN TO PROTEST
Supreme Court taking suo moto cognizance based on a letter has issued notice to the Centre and Delhi government on the presence of the children in protests. While the Supreme Court action is due to the death of a child in the ShaheenBagh and thus seeks to protect the health and well being of children, still it fails to look at the rights of children to protest. Indian Constitution doesn’t qualify fundamental rights of citizens based on age and thus every citizen immaterial of his or her age has the fundamental right to protest. Also, Convention on the Rights of the Children to which India is a signatory, upholds the right of children to protest.
THE BROADER ISSUES
|Platform for Dialogue with government
|Protests continue over long period of times due to lack of any avenue to discuss their grievances with the government. Even platforms such as Twitter do not ensure that the minister reads the grievance of the citizen.
|Role of Media
|The media of 21st century has the role of creation of dialogue between the electorate and the executive on a regular basis. Media has failed to play this role effectively.
|Role of Supreme Court
|Supreme Court is the guardian of fundamental rights of citizens but it has failed to uphold the right of protest of citizens. It has failed to stop improper use of sedition law, mass arrests, section 144 and derogatory remarks by the ministers against protestors.
|Role of Opposition
|It is the role of opposition to keep the government accountable on regular basis. The protests highlight that the people have lost trust in the opposition for keeping government accountable.
WHY IS IT ESSENTIAL FOR UPHOLDING DEMOCRACY?
It is natural that the government comes up with many policies from time to time in the interest of the citizens and overall betterment of the country. These policies are monitored by the people of the country and it is through them that the opinions on these policies could be made. Since the citizen is more like a watchdog of these policies, any mistake or shortcoming that these policies have can be addressed by them and it can be solved by peaceful demonstration.
Even during the colonial rule, various communities organized public meetings, dharnas, protests, etc that were a sign of protest as to the elimination of the British rule and demand for independent India. The state is on the other hand required to respect and address the protests because the Constitution also makes it necessary for the state to ensure the Fundamental Right to Freedom of speech and expression. However, the motive of the protest shouldn’t be inspired by interrupting the regular functioning of the state deliberately.
When the protest is inspired by such political waves, it becomes unethical and unfair in its overall substance.
|Balance between rights and duties
|While protesters have the right to protest but they also have the duty to respect the rights of others. Protests should not mean that the way of life of other fellow people is disturbed.
|Platform for Dialogue with government
|There needs to be a platform by which people can express their grievances to the government and get a suitable reply.
|Politicians need to develop connections with the grassroots so as to gain the trust of citizens. Also, the views of the politicians should not change based on the fact that they are in power or in opposition. Any such change should be seen as fraud and punished by people.
|It needs to be apolitical and take strong action against any encroachment on citizen’s rights.
|Legislations to protect dissidents
|Legislations should be passed to protect the dissidents, activists and whistleblowers.
CONCLUSION: Dissent and democracy are synonymous in a liberal-democratic social order. It is through open debate and discussion that the diversity of perceptions in a democracy gets exposed. Only through continuous interactions on critical issues does the real truth emerge. India needs to learn from the father of the nation, Mahatma Gandhi who had the courage and fortitude to express his dissent in a peaceful manner. In a progressive society, contrary views should be entertained. Further, the legislature should pass laws to protect dissidents, activists and whistle-blowers. It takes courage to take a stand and speak up, while the easiest thing is to ‘go with the flow’. Dissent must be welcomed not just on the political front but in religious and professional spheres as well.
Questions to Ponder
- “The highest form of human excellence is to question oneself and others” – Socrates. Comment in the light of recent events.
- India is suffering from continued protests since the last few years. Discuss the broader issues associated with protests in India. Give your opinion on the impact of protests on Indian democracy.
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