Right to Protest in India: Is it a Fundamental Right?

8 Oct 2020  Read 452 Views

We are observing a number of extraordinary public protests in India. Do these hinder the democracy of India? Thousands of people assemble on the streets for protests so as to give a voice to their demands or to raise their voice against injustice. These public protests are the hallmark of a democratic country as it allows the voices of general public to be heard by those in power. 

  • Protests in India has a long and eminent history. Until 72 years ago, India was a colony ruled by Britishers.
  • In 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 were 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 Protections available to Right to Protest

  • Article 51A makes it a fundamental duty for every person to safeguard public property and to avoid violence during the protests and resorting to violence during public protests results in infringement of key fundamental duty of citizens.
  • Article 19(1)(a) of the Constitution elucidates that right to free speech and expression. It includes that every person has right to express their personal opinions but subjected to reasonable restrictions. 
  • Article 19(1)(b) states about the right to assemble peaceably and without arms. Thereby, right to peaceful protest is bestowed to Indian citizens by our Constitution.
  • Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms and to freedom of speech and expression as none of these rights are absolute in nature.
  • The reasonable restrictions are imposed in the interests of the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Public as Watchdog of the Government

Public acts as a watchdog and monitors every movement of the government. There have been many instances where public acted as watchdog and number of protests were conducted as a response to injustice or misuse of power. Say, when democracy of India was terrorized during the Emergency, people of all political persuasions protested against the misuse of power. For instance;

  • During the Emergency, Arun Jaitley, who was then an Akhil Bharatiya Vidyarthi Parishad student leader in Delhi, assembled a crowd and burnt a statue or dummy of Prime Minister Indira Gandhi, for which he was arrested.
  • Other BJP leaders including AB Vajpayee, LK Advani, and Narendra Modi also participated in the protests against the Emergency and they were also joined by Sitaram Yechury and Kerala CM Pinarayi Vijayan as well as followers of Jayaprakash Narayan (Lok Nayak) such as Lalu Prasad Yadav and Nitish Kumar. Many of these leaders were actually student leaders at that time, and subsequently rose to high posts or offices.

Chipko movement (1973) in the upper Alaknanda valley which was a forest conservation movement in India too created a precedent for commencing non- violent protest in India followed by Andhra and Telangana movements in India and many more.

In Ramlila Maidan Incident v. Home Secretary, Union of India & Others (2012), the Supreme Court had ruled that, “Citizens have a fundamental right to assembly and peaceful protest that cannot be taken away by an arbitrary executive or legislative action”. Even the 2012 Delhi gang rape agitated every fraction of society that led to tremendous public outrage and people were very clear on expressing that they have had enough.

In 2011, when anti-corruption activist Anna Hazare began a hunger strike at Jantar Mantar in New Delhi, the movement led to the resignation of Agriculture Minister Sharad Pawar from the group of ministers that had been charged with reviewing the draft Jan Lokpal bill.

Can a State restrain citizens from exercising Right to Protest?

An ongoing conflict where the government passed Citizenship Amendment Act, 2019 for refugees from neighbouring countries who are Hindu, Christian, Parsi, Jain or Buddhist but not Muslim as the government argued that non-Muslim minorities often face religious persecution in neighbouring countries such as Bangladesh and Pakistan led to immense protest against the said Act, protesters started to protest at Shaheen Bagh which was the epicentre of such protest in Delhi.

  • The protests at Shaheen Bagh started on December 15, 2019 and continued for more than 3 months considered as the longest protest in India.
  • The Supreme Court recently ruled against the protest at Shaheen Bagh being conducted against CAA that right to protest in public places is not absolute and public places cannot be occupied indefinitely for such protests;
  • As there were troubles faced by general public due to the road blockade at Shaheen Bagh in South Delhi by protestors. However, citizens cannot be restrained from exercising their right to peaceful protest unless they don’t resort to violence or disrupts right to public movement.
  • “Freedom of speech, right to assembly and demonstrations by holding ‘dharnas’ and peaceful agitation are the basic features of a democratic system, therefore, right to protest is a constitutional right

Conclusion

Protesting is not only a fundamental right granted by Indian Constitution but protesting against injustice is also a moral duty. Right to protest is the core on which India’s democracy survives but it cannot be absolute and is subject to reasonable restrictions. When public protest turns violent it defeats the very purpose of the protest.

Justice Sanjay Kishan Kaul, who authored the verdict for a three-judge Bench in Shaheen Bagh Judgment recently, observed that the protest against CAA was not even one of protests taking place in an undesignated area, but was a blockage of a public way that caused grave inconvenience to everyone. Therefore, right to protest needs to be balanced with the right to movement of the public.

About the Author: Kakoli Nath | 15 Post(s)

Kakoli Nath is a legal Content writer at Finology Legal, pursued BBA.LL.B (5 years integrated course) from ITM University, Raipur with core interests in criminal law and IPR and had also been a judicial aspirant. she pursued advanced certification in Forensics Psychology and Criminal Profiling from IFS, Pune; and had also undergone training as a patent analyst under IIPTA.

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