Right to Protest in India

Context: Supreme Court in its recent order stated that farmers have a constitutional right to continue with their protest.

More about judgment

• Petition: Order was delivered on the petitions seeking removal of farmers protesting at the borders of Delhi.
• Order and suggestions
  • Supreme Court in its order upheld the farmer’s right to continue their protest in a peaceful manner as a constitutional right subject to public order.
  • No restriction will be placed in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens.
  • SC suggested farmers engage in talks with the government for positive conclusion and formation of an “impartial and independent committee” of experts in agriculture to hear both farmers and the Union government on the laws.

A few examples of important peaceful protests in India  

• Power of peaceful protest was taught to the country by the father of the Indian nation, Mahatma Gandhi, against the mighty British Empire.
• People not only signed writ petitions but staged dharnas, held large public meetings, peaceful protests and demonstrations and even, for instance in Gandhi’s satyagraha, launched civil disobedience movements.
• After Independence, many peaceful protests took place, but one of the biggest were protests during an emergency in the 1970s when democracy in India was threatened due to authoritarianism of government.
• Movements such as Chipko movement (1973) in the upper Alaknanda valley took place for forest conservation.
• During the movement of Anna Hazare against corruption, thousands participated in the peaceful protests.

What are the Constitutional provisions ensuring the right to protest?

The right to protest, to publicly challenge and force the government to answer, is a fundamental political right of the people that flows directly from a democratic reading of various provisions of Article 19.

Right to Protest is protected under Article 19(1) (a), Article 19(1) (b) and Article 19(1) (c) of the Indian Constitution.

1. Article 19(1) (a) guarantees the freedom of speech and expression;
2. Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
3. Article 19(1) (c) assures right to form associations or trade unions

Reasonable restrictions: However, like other fundamental rights, right to protest is also not absolute and also subject to reasonable restrictions mentioned under Article 19(2) and 19(3) on the following grounds;

1. In the interests of the sovereignty & integrity of India,
2. The security of the State,
3. Friendly relations with foreign States,
4. Violation of Public order,
5. Decency or morality or in relation to Contempt of court, defamation or incitement of an offence

The grounds of restrictions based on Violation of public order can be reasonable only when there is evidence that protesters will incite lawless or disorderly acts and that such acts are likely to occur.

Section 144 and right to protest in India

• Time and again, to suppress the voice of citizens or for legitimate reasons like controlling the violent protest, the government has kept on using various tools available against protests and section 144 of Cr.PC has been the biggest such tool.
• Section 144 authorises executive magistrates to pass “prohibitory orders” that restrict people from assembling at particular places to prevent breaches of public order or the triggering of violence.
• Although the law has been enacted to implement the reasonable restrictions, however, Section 144 is framed in such broad and vague terms that it can be imposed by the executive anywhere to prevent the expression of dissent through public demonstrations and protests.
• Judgments
  • In the 2012 Ramlila Maidan case, the court held that the “perception of threat to public peace and tranquillity should be real” for Section 144 to be used. The trigger cannot be “imaginary or a mere likely possibility”.
  • In Mazdoor Kisan Shakti Sangathan v Union of India, the Supreme Court held although recognised the right to protest and asked the government and police to frame guidelines but also held that the order to impose section 144 was not unconstitutional.

Supreme Court Judgements on Right to Protest:

• Ramlila Maidan Incident vs Home Secretary, Union of India (2012): The Supreme Court had stated that citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.
• Mazdoor Kisan Shakti Sangathan (MKSS) vs Union of India(2018): In this case, SC upheld the fundamental right to assembly and peaceful protest but ordered it to be regulated in such a way that they do not cause inconvenience to residents from Jantar Mantar road or the offices located there.
• Shaheen Bagh Judgement:
  • The court upheld the right to peaceful protest against a law but made it clear that public ways and public spaces cannot be occupied and that too indefinitely.
  • The right to protest in a public place should be balanced with the right of the general public to move freely without hindrance.
  • 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.

What is the significance of the right to protest?

• Firstly, Right to protest is an essential element of democracy to bring about reforms and lead to the development of the country.
• Second, Protesting against injustice is not only a constitutional right of the citizens but also their moral duty.
• Third, Active exercise of Right to protest ensures people’s role as watchdogs that constantly monitors government’s acts and ensure fairness in them.
• Fourth, it is the biggest weapon of people when the government in a democratic country becomes unresponsive and refuse to listen to them.

Peaceful protest is a fundamental right and the lifeline of democracy, without which there would be very less accountability left with the ruling government and every citizen has to wait for the election to vent out their anger against it. But reasonable restrictions are also very important so that peaceful protests do not turn into violent and lead to loss of lives and property.

However, it should not be made an excuse to suppress every form of protest as it is the prime duty of every government to protect the ideals of the constitution.