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

8 Oct 2020  Read 17828 Views

Recently the newspapers and news channels are flooded with the news of farmers protesting against the Farmers bill 2020 and marching towards the capital city from various places in the Punjab and Haryana. While some quotes it as a political conspiracy, others categorise it as a genuine protest to cease the final enactment of the bill due to some apparent shortcomings. The protest is taken on a massive note and farmers got successful in arranging a meeting with the officials but they were not the only one to suffer. It appears that the residents had to also go through a lot of trouble.

Protest- a fundamental right

When a group, community or even a person goes up to protest, it is usually to showcase their disapproval or demur against any action, policy, statement, etc of state or government or any organisation. Mostly the flow of protest is driven through political waves that also demonstrate the collective organisation of people to make the government or state address their issues and take steps to overcome them. Protests generally work in two ways, first, it helps a particular community or group or person to show their disagreement with the policy in question and second, it helps the government to identify the loopholes in their policy or action and work towards its betterment. Tracing the history of protests back to the pre-independence period:

  • Protests in India has a long and eminent history. Until 72 years ago, India was a colony ruled by Britishers.
  • In the 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 was 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 the 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, the 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 the public acted as watchdog and number of protests were conducted as a response to injustice or misuse of power. Say, when the 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.

Why is it essential for upholding democracy?

It is natural that the government comes up with many policies from time to time in the interest of the citizens and overall betterment of the country. These policies are monitored by the people of the country and it is through them that the opinions on these policies could be made. Since the citizen is more like a watchdog of these policies, any mistake or shortcoming that these policies have can be addressed by them and it can be solved by peaceful demonstration.

Even during the colonial rule, various communities organized public meetings, dharnas, protests, etc that were a sign of protest as to the elimination of the British rule and demand for independent India. The state is on the other hand required to respect and address the protests because the Constitution also makes it necessary for the state to ensure the Fundamental Right to Freedom of speech and expression. However, the motive of the protest shouldn’t be inspired by interrupting the regular functioning of the state deliberately. It was seen in the recent Bharat Bandh on account of farmers protest on 8th December 2020 where the protestors went over the top with their actions. They interrupted the cab facilities, stopped a train, and also stopped an old lady from going to the doctor.

When the protest is inspired by such political waves, it becomes unethical and unfair in its overall substance.

Conclusion

Protesting is not only a fundamental right granted by the Indian Constitution but protesting against injustice is also a moral duty. By now, we are pretty much clear with the fact that the constitution safeguards the existence of Right to protest. In some instances, it is considered to be ‘treasure’ in respect to ensure the right of free speech and peaceful protest and it should be protected in every situation. However, the twist is that these rights are not absolute in nature and should be subjected to reasonable restrictions as provided under Article 19(2) which is important in the interest of sovereignty and integrity of the country. The Fundamental rights do not exist in isolation and there should be a mutual balance between the right of protestor and commuter.

About the Author: Kakoli Nath | 27 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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