Author: Isha Gurung, NEF Law College
TO THE POINT
India has a long history of protest, since the colonial era people has use peaceful protest as a powerful means of resisting injustice and demanding political and social reform. It is evident from the movement such as the Civil Disobedience Movement, the Non-Corporation Movement and Mahatma Gandhi’sSatyagraha. Even after independence, there have been many protests such as the Chipko movement and the Narmada Bachao Andolan where public has registered its dissent against the system and the government.
A right to protest is an essential element of democratic framework and form an integral part of freedom of speech and expression. It provides a constitutional platform to question government decision, demand transparency and seek policy correction. The right to Protest also safeguards the voice of the minorities and dissent and enable citizens to influence public policy. In Ramlila Maidan Incident vs Home Secretary, Union of India and Ors (2012) the Supreme Court stated, ‘’ citizen have a fundamental right to assemble and peacefully protest which cannot be taken away by an arbitrary or executive or legislative action. However, these right often intersect with the imperative of public order, leading to a delicate balancing act under the Indian constitution.
However, the recent protest in India has raised many questions and has reignited the debate between Right to Protest and maintenance of public order. althoughthe constitution of India had given us the Right to Protest under Article 19(1)(a) Article 19(2)(b)Article 19(1)(c), these rights are not absolute as the government can put reasonable restriction in the interest of public order, sovereignty and integrity of India. Therefore, while peaceful protest is constitutionally protected, it must not result in violence, disruption of public order or infringement of the right of the other.
USE OF LEGAL JARGON
Although the constitution does not explicitly mention the word protest as a fundamental right, the Supreme Court has implicitly derived it from the in-depth reading of Article 19. The right to protest has been protected under
• Article 19(1)(a): Guarantees the right of freedom of speech and expression
• Article 19(1)(b): Guarantees the right to assemble peaceably and without arms, which form the constitutional basis for peaceful protest and demonstration
• Article 19(1)(c): Guarantees the right to form associations and unions, allowing individual to organise collectively and advocate for common interests
• Article 21: Supreme Court has interpreted the Right to Life and Personal Liberty to include the dignity and liberty necessary for peaceful forms of protest, including hunger strikes in appropriate circumstances.
However, these rights are not absolute the State can impose reasonable restriction on the ground ofinterests of sovereignty, integrity of India, security of the State and public order under the following Article
• Article 19(2): permit the state to impose reasonable restriction on the freedom of speech and expression in the interest of the sovereignty and integrity of the state, public order, decency, morality, and other constitutionally recognised ground
• Article 19(3): Authorised the state to impose reasonable restriction on the right to assemble peacefully in the interest of the sovereignty and integrity of India and the public order.
THE PROOF
The recent Chalo Sansad protest organised by the student and youth group to draw the Government’s attention regarding the irregularities happening in the competitive examination, has raised various question regarding the balance between right to protest and the maintenance of public order. During the protest, thousands of the student had assemble at Jantar Mantar to marched toward the parliament to submit their demand to the government. However, the reports indicated that the police had used excessive force such as the use of baton charges, tear gas and the detention of demonstrators to prevent the march from proceeding. These actions has led to widespread criticism and had triggered a debateregarding the limits of state authority in regulating peaceful protest.
This incident has highlighted the constitutional dilemma between the two competing concepts. On one hand while the citizen has been given the right to assemble peacefully without arms under Article 19(1)(a) and Article 19(1)(b) of the constitution. On the other hand, the state on the other hand has the obligation to maintain public order and ensure the safety of the general public. The authorities defend their action by stating that the measure taken by the police was justified as during the protest the parliament was in session and the protest could pose a threat to public order and security. This raised an important legal question as to whether the force used by the police satisfied the constitutional test of necessity and proportionality.
For which the Supreme Court has responded thatwhile the state can impose certain restriction in the interest of public order, however such restriction must be reasonable, proportionate, and legally justified. Peaceful protest must not be meet with unreasonable or excessive force and the allegation of the police misconduct must be investigated throughfair and transparent process because in a democracy citizens right and public order must co-exist.Therefore, the Chalo Sansad protest demonstrate the continuing need to strike a constitutional balance between protesting democratic dissent and preserving public order, ensuring that neither individual liberties nor the State’s duty to maintain peace is compromised.
ABSRTACT
India being a democratic society, has given the right to protest peacefully without arms to all its citizen as a fundamental right under Article 19(1)(a), 19(2)(b),19(1)(c) of the constitution. At the same time, it has given the duty to the state to maintain public order and protect the right and safety of the general public. However, the recent protest in Jantar Mantar challenge the democratic dissent with the maintenance of public order it has also raised various question regarding the limits of the state authorities.
This article examines the constitutional and legal framework governing the right to protest and the extent to extend to which the state can impose reasonable restriction under Article 19(2) and Article 19(3).
CASE LAW
HIMAT LAL K SHAH VS COMMISSIONER OF POLICE, AHMEDABAD
The court held that the citizen has a right to hold public meeting and the state may regulate it but cannot completely prohibit it.
RAMLILA MAIDAN INCIDENT VS HOME SECRETARY, UNION OF INDIA
In Re: Ramlila Maidan Incident v. Home Secretary, Union of India & Bears, the SC held that, ‘Citizens have a fundamental right to assembly and peaceful protest that cannot be removed from arbitrary executive or legislative action and the use of force by the authorities must be proportionate and legally justified.
ANURADHA BHASIN VS UNION OF INDIA
In this case the court held that restricting affecting the freedom of speech and assembly must satisfy the test of necessity and proportionality. And the government order to imposing restriction should be subject to judicial review.
AMIT SAHNI VS COMMISSIONER OF POLICE
The court held that protest is a fundamental right. However public road cannot be occupied indefinitely. The right of the commuters and the general public must also be protected.
CONCLUSION
The right to peaceful protest is a fundamentalconstitutional right and one of the cornerstones of ademocratic society in its absence the democratic system cannot function properly. It helps the citizen to express their views, opinion, voice grievance and seek accountability from the government and thecitizen has been given the right to protest under the constitution of India however, such right must beexercised responsibly without restoring to violence or causing unnecessary disruption to pubic life.
Although every citizen has the right to protest, this right is not absolute the state can impose reasonable restriction in it. Such reasonable restrictions are considered essential for preventing its abuse and to protect public order, sovereignty and integrity of India. It is also the responsibility of the State to regulate the effective exercise of this right and also to ensure that it is not being used excessively by the authorities. Therefore, it is the job of the state tomaintain balance between both the sides and bring stability in the society. The government must welcome reasonable demands and constructive criticism of people, and in any case, the right to non-submission should not be suppressed, as protests are the way in which citizen can show their disagreement or can demand change in the society.
On the other hand, it is also the responsibility of every citizen of the country to use every right where necessary and not to oppose government actions and policies every time unconditionally as it can lead to instability in the country.
So, the right to protest is an essential element in a democratic country and it should be used appropriately when required, and the government should also help citizens to use their fundamental rights, rather than limiting this fundamental right.
