Author: Jaivardhan Singh Rathore, student of National Law University and Judicial Academy, Assam
To the Point
In the current world scenario where people are collectively standing against the arbitrariness of the ones in power, protest becomes an important tool to achieve such an interest when the voice of common masses is not heard. Throughout history, protest have given rise to most powerful social movements, shape legislation and laws and in demanding accountability. Along with its social importance, it’s equally important to understand it from a legal point of view. India as a democracy is a hub for protests when the representative government does not represent the voice of the ones who elected them. This article delves into legal complexities surrounding protests and by examining relevant case-laws aims to understand the Indian legal system’s standing on the rights of protesters as well as the authorities.
Abstract
Expression of protest is a safeguarded in Indian Constitution yet it remains subject to reasonable restrictions. This duality had led to tension between citizen’s right to peaceful protest and state’s authority to regulate and reprimand them on the name of ‘reasonable restrictions’ for public good. This article examines the legal framework regarding protest rights in respect of constitutional provisions and judicial interpretations of the landmark cases. Ultimately the article argues for a comprehensive and transparent laws regarding protests and institutional reforms in order for this important right to be preserved without being suppressed by authorities or being a threat to public order.
Constitutional Foundation
The legal standing behind protests vests primarily on fundamental rights enshrined in Constitution of India. These rights allow the citizens to practice their freedom of speech as well as right to peacefully protest. At the same time, Constitution balances these freedoms with need to maintain public order and safeguard national integrity.
Article 19(1)(a): Freedom of Speech and Expression. This works as the backbone of the protest rights as protests are one of the most visible forms of expression. This provision grants citizens to voice their opinions, criticize government actions and raise demand for any just cause.
Article 19(1)(b): Right to assemble peacefully and without arms. This specifically protects the collective expression of citizens and rights of citizens to assemble peacefully.
Article 19(1)(c): Right to form unions or associations. This enables people to form a collective among the people of like cause for protests or advocacy. Many movements like farmers’ unions, women groups and student bodies derive their legitimacy from this provision.
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Article 21: Right to Life and Personal Liberty. Under the definition of this article laid out by Supreme Court, it strives for freedom from arbitrary action by state. This provides defense against police brutality during protests.
Article 19(2) and article 19(3) does not provide absolute freedom but lays “reasonable restrictions” in interests of public order, security of state, sovereignty and integrity of India, friendly relations with foreign states and contempt of court or incitement of an offense.
Interpretation from Landmark Cases
· Himat Lal Shah v. Commissioner of Police (1973)
The issue discussed in this case was if state can outright deny permission for public meetings on streets. The Supreme Court held that citizen have rights to assemble and hold meeting on streets and other public places, although this right is not absolute. The state can regulate the use of public places but it should be reasonable and regulatory in nature and not prohibitive. This judgement legitimized streets and public places as areas of public participation, laying down foundation for right to protest in India.
· Ramlila Maidan Incident, In Re (2012)
· The police forcibly dispersed the peaceful protest by Baba Ramdev by using violent force leading to many injuries and deaths. The Supreme Court condemned this arbitrary action and highlighted the fact that right to peaceful protest is a part of Article 19(1)(a) and (b). The court introduced the concept of ‘test of proportionality’, where reasonability behind state’s actions must be justified and actions must not be unreasonable or arbitrary.
· Mazdoor Kisan Shakti Sangathan v. Union of India (2018)
The issue discussed in this case was the strife between protesters’ right to protest as their fundamental right and residents’ complain of noise and disruption. The Supreme Court struck a balance between the protesters’ right to protest and residents’ right to live a peaceful life, holding that while exercising your rights one cannot infringe right of others. Rights must be harmonized and emphasized upon designated protest zones where demonstrations could occur without disruptions to the public order. This marked the court’s liberal approach to protect protesters’ rights to a more regulatory approach.
Challenges and Criticism
Despite being right to protest a constitutional right, there are still certain criticism for the way this right is regulated by the state.
Authorities often invoke Section 144 CrPC preemptively even in absence of any immediate or imminent threat. The preventive arrests and detention orders followed after it are heavily misused to arrest protest leaders and other members curbing the movement even before it begins.
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The terms like public order, decency and morality under Article 19(2) are not very specifically defined which leads to subjective application of these by the authorities enabling them to suppress any protest harsher than others, which might not feed to the interest of the authorities.
The use of violent measures like lathi charges, tear gas, and pellet guns during protests creates a fear among the ones exercising their rights and the lack of accountability mechanisms for the police authorities involved invites widespread criticism.
The shutting down of internet during protests infringes upon the public’s right to information. These shutdowns restrict the voice of the aggrieved to be heard by larger number of people which is paralyzing the flow of communication on the name of public order.
The Shaheen Bagh ruling (2018) reinforced the idea of “designated zones” for protests which undermines the very purpose of protests which heavily depends on visibility. By confining protests to isolated area and zones, their impact is being diluted.
Conclusion
From the Non-Cooperation to Quit India to recent CAA demonstrations and farmers protest, protests have shaped the country’s political and social sphere. Protests are not the disruption but rather the defining element of the principle ‘We, the people’ in democracy.
Legally, the right to protest is protected under the Constitution as Fundamental right yet its exercise has been mediated by imposition of ‘reasonable restrictions’ by the state. The inherent tension between the liberty to express and maintaining of order by state forms the crux of India’s protest jurisprudence.
There are numerous contemporary challenges to this right specifically criminalization of dissent, digital censorship and misuse of preventive arrest laws. This view directs to the fact that state views protest as a threat than a democratic dialogue. This approach risk eroding the relevancy of the government itself as a democracy that suppresses dissent weakens its own foundation on which it is built.
At the very same time, protests also need to evolve responsibly. Violence, misinformation and disruption can turn the people away from supporting the cause and may side with state for its not-so just regulatory responses. Thus, both citizens and state share a duty: citizens to use their right to express within peaceful and constitutional limits, and the state to view protest as a democratic right than to suppress it as a security threat.
The way ahead lies in institutionalizing reforms: codifying clear laws regarding protests, ensuring accountability of police’s action, protecting digital freedom by putting check on arbitrary internet shutdowns, and many more. India’s constitutional values coupled with international protocols will provide a solid framework for maintaining balance between rights and regulation.
Ultimately, the right to protest serves as a heartbeat of democracy. By safeguarding it, India not only honors its own constitutional commitment but also insures that the government remains accountable and responsive to the demands of people.
FAQs
What is ‘Right to Protest’?
‘Right to Protest’ comes under ambit of right to expression as a fundamental right guaranteed by the constitution. It means exercising your right to dissent peacefully against the government’s policies, arbitrariness or any other cause while not infringing upon other’s fundamental right.
Do the Constitution of India protect protester’s right to protest?
Yes, Indian Constitution guarantees citizens their right to protest as part of the fundamental rights. Article 19(1)(a), (b) and (c) gives right to expression, right to assemble peacefully and right to form unions respectively to its citizens which serves as a safeguard against any arbitrary action by state.
Does the Constitution lay any restrictions on the right to protest?
Yes, the Constitution mentions the provision of ‘reasonable restrictions’ which can be put upon by the state on the protesters in interests of public order, security of state, sovereignty and integrity of India, friendly relations with foreign states and contempt of court or incitement of an offense.
What are some landmark cases that shaped the protest laws in India?
Himat Lal Shah v. Commissioner of Police strengthened the protester’s right to assemble on streets and other public places. Ramlila Maidan Incident, In Re, introduced ‘test of proportionality’ which aimed to check state’s arbitrary and violent actions against protesters. Mazdoor Kisan Shakti Sangathan v. Union of India, shaped the balance between protesters’ right to protest and citizen’s right to live peaceful life.
What are some challenges to Right to Protest?
Few challenges to Right to Protests include arbitrary use of power by government on the name of ‘reasonable restrictions’, invocation of section 144 of CrPC without any imminent threat, use of violent measures by police to disperse the protests and local internet shutdowns leading to alienation of protester’s voices.
