HomeLegal ColumnsRight to Protest

Right to Protest

 

The freedom struggle of India has made rendezvous with destiny to shed off the colonial rule on August 15, 1947. The history of the Constitution of India is formed by its freedom struggle against the British, which has sown the seeds of political public sphere and democratic constitution. The Indian masses struggled for very long to blatantly express their opinions on colonial policies and laws, to disagree from them, to configure their minds and form their own views, to declare their dissent against the government and finally to defy it.People signed several writ petitions, performed dharnas, held large open meetings, protests and illustrations. The citizens of a country are the custodians of democracy and constantly oversee the governments’ moves, which gives an assessment result to the government about their administration and policies. 

The important question that needs to be addressed in today’s independent India is whether the methods and demeanour of dissent against colonial rule should remain the same in a self governed democracy? Article 19 is one of the most important facets of the Constitution of India and confers the right to freedom of speech and expression under Article 19(1)(a) and the right to assemble peacefully without arms under Article 19(1)(b). Both these rights read together gives the citizens the liberty to peacefully assemble and protest against the policies and guidelines of the government. The dissent of the people must be acknowledged and respected by the Government to maintain a strong democracy. Article 19(2) prescribes reasonable restrictions pertaining for the benefit of the sovereignty and integrity of India and public order.

The Parliament enacted the Citizenship (Amendment) Act, 2019, which faced opposition from various sections of the society. Being discontented by the above-mentioned Act, various petitions were filed in the Supreme Court under Article 32 of the Constitution of India, assailing the constitutional validity of this Act. Discontent from the act has manifested in the form of protests in Delhi and other parts of the Country. The most elaborate and prominent protest against the act was seen in Shaheen Bagh, Delhi, which later became an icon of dissent against the legislation.  The people involved in protesting against the Citizenship Amendment Act and the National Register of Citizens showed their disagreement by  closing Kalindi Kunj, Shaheen Bagh stretch. After the country was hit by Covid-19, protesters did not seem to fully realise the implications of the pandemic and continued assembling in clustered places showing their unwillingness to relocate to a larger and  a more open area, so as to maintain social distancing. 

The Supreme Court in its recent judgement, Amit Sahni v. Commissioner[1] of Police, has discussed the circumstances in Shaheen Bagh with respect to right to protest under Article 19(1)(a). The court observed that right to peaceful protest is undisputably one of the most important fundamental rights in a democracy. However, the Court also pointed out that occupying public spaces and roads indefinitely should not be encouraged or appreciated. Dissent is inseparable part of democracy, but they have to be expressed in designated places alone. Grave inconvenience was caused to the public when the protestors blocked the roads for more than 3 months. The Court rejected the plea of the protestors that an unlimited number of people gather at a place whenever they want to protest. Justice K.K. Mathew in the In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr[2] had articulately observed that “Streets and public parks exist primarily for other purposes and the social interest promoted by untrammeled exercise of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion.” 

In Himat Lal case, a challenge was made to Section 33(1)(o) of the Bombay Police Act, 1951. The rules framed under the section required the citizens to take permission from the Commissioner of Police before holding of public meetings. The Supreme Court observed that the government can impose restrictions only when public interest is in question. It was held that “while the State cannot impose any unreasonable restrictions, a right to hold meetings on public streets was subject to the control of the appropriate authority regarding the time and place of the meeting and subject to considerations of public order.”

In Mazdoor Kisan Shakti Sangathan v. Union of India & Anr[3], this Court was required to ascertain whether controlling the facets of demonstrations in the designated space by the concerned authorities at Jantar Mantar, violative of Article 19(1)(b). The judgment attempted to emphasise on the theory of balancing the interests of the citizens living in the area vis-à-vis the interests of protestors to protest at Jantar Mantar.

It can be fairly concluded that the Supreme Court, through the above mentioned judgements has tried to set the precedent that occupation of public ways or any other undesignated place for protests will not be acceptable and the administration will be authorised to take necessary steps to keep the public places and roads clear of encroachments or obstructions.


[1] Civil Appeal No. 3282 OF 2020

[2] (1973) 1 SCC 227

[3] (2018) 17 SCC 324

close

Don’t miss out on anything, get latest notifications by subscribing to our newsletter!

We don’t spam!

Law Wire Team
Law Wire Teamhttps://lawwire.in/
Law Wire Team attempts to delve into pertinent (and sometimes not immediately pertinent) questions regarding socio-politics, Law and their interesting matrix.
RELATED ARTICLES

Most Popular