Right to Protest in Indian Democracy

Introduction and Background

The idea of the right to protest as a fundamental right is an important cornerstone of any democracy. The idea to not support any actions performed by the incumbent government and expressing the same reflects the idea of a democratic environment. The inception of protests was to achieve the idea of freedom against colonialism, feudalism, capitalism and slavery. The introduction of terms such as fraternity, equality and liberty, has been a product of various cultural protests that have happened around the globe such as French Revolution, October Protest etc.

There are very few countries around the world that practice a vibrant democracy. Fortunately, our country, India, is one of them. We have an independent Election Commission, which is a constitutional authority, and conducts free and fair elections in the country. Rarely has there been any dispute with respect to its credibility.

Naturally, the winner of such elections forms the dispensation and the losing side forms the opposition in Parliament. The idea of opposition is not limited to just the parliament. There are various student groups, NGOs, parties, social groups, unions and public at large who have the right to oppose and express their opinion on any of the actions of the incumbent.

 If one goes back to the period of pre-independence, the First War of Independence was the first manifestation that reflected a pan-Bharat protest in the form of a revolt against the East India Company. Post that, with Mahatma Gandhi in the Bharat freedom struggle, various pan-Bharat protests took place under his leadership. The first being the ‘Nil Andolan’ in the Champaran district of Bihar in the year 1915, followed by various other such movements such as Civil disobedience movement, non-cooperation movement etc., where goods of our oppressors were boycotted.

After the transfer of power in the year 1947, the period of Emergency (1975-77) is something that one cannot drop while discussing the idea of protest. Emergency period, also known as one of the darkest phases of Bharat’s democracy, has seen a pan-Bharat protest against the then incumbent. This also marked the rise of various leaders such as Jay Prakash Narayan.

If one talks about the 21st century, I believe that the Lokpal Bill protest by Anna Hazare was a very principled and systematic protest, although the idea with which it was started got diverted latter, but the way the protest was conducted was very methodical.

The point that I am trying to make is that protests have an enthralling history in Bharat and have been the essence of our vibrant society. But at present, we are observing a change in the agenda of protests, where this platform is being used by certain vested interest groups to mislead and incite people. For very example: we recently saw a JNU scholar suggesting that if the protestors collect a certain number of people, they can actually block the north eastern part of the country and prevent the army from entering Assam (the Chicken neck theory).

I believe the same modus operandi and intention was observed in the recent protests of ‘Shaheen Bagh’ and even to an extent the Farmer’s protest which is still in continuance. Protests in Bharat now are more directed towards using such platforms to spread hate and propaganda. The objective is always to pressurize the legislature by seizing the national capital and to attract the attention of International to pressurize the Judiciary as well as the Legislature.

Anti CAA protests and the birth of ‘Shaheen Bagh’

In the month of December 2019, the parliament passed a legislation, where an amendment was done in the Citizenship Act of 1955. The statute was relaxed for six minority communities of three Islamic states, that is Pakistan, Bangladesh and Afghanistan. This became a controversial legislation and it was opposed both in Parliament as well as on roads by certain groups.

There were more than 150 petitions filed challenging the constitutionality of this Act and subsequently, the Supreme Court accepted the petitions and the matter is still pending before the court to adjudge. There was no interim stay on the laws and certainly this was beyond the expectations of the opposing force; they expected an interim stay. In order to show their opposition to the legislation, a group of men and women blocked the Kalindi Kunj-Shaheen Bagh stretch, including the Okhla underpass and the condition was put forward that until and unless the laws are withdrawn, people won’t vacate the area. This eventually after months converted into the North Delhi riots.

A petition was later filed before the Delhi High Court to disperse the public roads and vacate the area for public convenience, although this was dismissed by the High Court. Then an SLP was filed in the Supreme Court by Amit Sahani for the same matter. The Supreme Court after listening to both the sides, appointed two mediators who could bring the protestors on a common ground. However, the demands of the protestors were so wide that the mediation failed.

In the judgment of Amit Sahani vs Commissioner of Police, the Supreme Court made it very clear that the judiciary does recognise the fundamental right of people which is Right to protest, but blocking of public roads is a concern and a balancing factor is required. The judgment highlighted various other issues that were involved in this case. 

The judges clarified on the role of the three pillars of our democracy. In this case the legislature legislated a law in its wisdom and there were people from both sides, supporting and opposing the law. The court even mentioned that the law is already challenged in the Supreme Court and the matter is pending, however that alone does not take away the rights of the people to protest but where to protest is an important aspect of the whole issue.

The court made it very clear that the protestors cannot indefinitely sit on public roads, blocking them and causing inconvenience to the public at large. The court also laid its emphasis on the Ramilila Maidan Incident where the court pointed out that as per Article 19, one surely does have the right to protest and assemble peacefully, and that should be encouraged by the state as well. Although, these rights are restricted through reasonable restrictions and also to the regulation by the concerned police authorities in this regard. 

Farmer’s protest- the ‘Shaheen Baghaisation’ phenomenon and a Soft state

From the past several weeks we are observing that how certain vested interest groups have clearly lost the distinction between politics and national interest. The farmer’s protest has again reflected the same intention of protestors that was implemented by Shaheen Bagh. These protests are taking place in light of the three farm laws that were passed in the month of September in the year 2020. 

The mentality of Shaheen Bagh was evident in Farmer’s protest as well. It is very unfortunate that we are observing a new normal where at the drop of a hat, the national capital is blocked in the name of peaceful protests and through this process, a pressure is been created on both the Judiciary and the legislature to withdraw or strike off the law. Astonishingly, this comes just after the Supreme Court’s judgment on Shaheen Bagh, where the court concluded that such types of assemblies are not lawful in nature.

Adding to the whole scenario, we saw a combination of judicial overreach and inability of a soft state. As expected, the laws were challenged in the Supreme Court and in spite of commenting on the constitutionality of the legislations, the Supreme Court has delved into matters which were beyond its scope. 

The Supreme Court announced an interim stay on the laws and formulated a committee of four members which will mediate the whole issue and will provide recommendations to the government. It slightly sets a wrong precedent even for upcoming legislations in the country, where people can block the capital and get an interim stay on laws.

The second contention is with respect to the inability of the state, in the Shaheen Bagh Judgment, the Supreme Court slammed the authorities for not clearing the public places for a period of three months. The court said that there was no need for a direction from the judiciary to disperse the places, the authorities were well within their rights to do the same without approaching the court.

Unfortunately, the same inaction is applied by the authorities in the Farmer’s protest as well, where they have reached to the courts asking for an injunction or an order to clear the roads. The Supreme Court has made it clear again that the law and order situation is under the control of the appropriate authorities and the Judiciary does not have to direct them for the same.This suggestion was again not implemented by the state authorities and eventually this protest was converted to It is very important for all of us to understand that the fundamental right to protest covered under Article 19 comes with a caveat, which is “reasonable restriction”. There is a boundary which makes a distinction between practicing one’s fundamental right and also making sure that other’s fundamental rights are not infringed.

There are various places that are already designated by the appropriate authorities for protests and assemblies, and no protest should be allowed for more than 8-10 hours at any place outside such designated places. We are still a developing country and seizure of the capital by unlawful methods impacts the economic activities and causes huge losses for both state as well as central governments.

Despite the ideological differences on laws passed either by parliament or state assemblies, no one shall express upon the legislation to repeal in this method. The supremacy of Parliament to enact laws cannot be diluted in such unconstitutional methods.

Analysing the present situation has exhorted me to quote Dr B.R. Ambedkar’s final speech in the constituent assembly where he said, “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.”

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Kirit P. Mehta School of Law Publications