DE LIBERTATE CIVIS-UNDER THE DOMAIN OF RIGHT TO PROTEST: AMIT KUMAR

De Libertate Civis: Under the Domain of Right to Protest

Author: Amit Kumar

Department of Law, Kurukshetra University

ISSN: 2582-3655

Abstract

Various civic freedoms were introduced to maintain a society that flourished intellectually, lived in harmony and focused on personal development. The Constitution of India guarantees the right to freedom, as enshrined under Article 19 with a view to ensuring individual rights that were considered vital by the framers of the constitution. The term “protest” is not defined in international law or municipal law, despite its frequent use in legal and non-legal settings. The right to protest peacefully is enshrined in the Indian Constitution—Article 19(1)(a) guarantees the freedom of speech and expression; Article 19(1)(b) assures citizens the right to assemble peaceably and without arms. Article 19(1)(3) says this right is subject to “reasonable restrictions” in the interest of public order. Since ‘Law and Order’ is a State subject, the permission to organize a protest varies from state to state. Supreme Court laid down the guidelines wherever there is a demonstration organized. The First Amendment to the United States Constitution prohibits the United States Congress from enacting legislation that would abridge the right of the people to assemble peaceably. The Human Rights Act, 1998 provides the fundamental rights and freedoms that everyone in the UK is entitled to. People’s Will is the essence of democracy and if there is no dissent in a democratic State it is not a true democracy. People must have the liberty to speak out their minds subject to their duties as a citizen.

Introduction

The word “Freedom” is something which everybody has heard of but if you ask for its meaning, everyone can provide a different meaning and opinion to it. For some freedom means the freedom of going anywhere they like, for some it means to speak up form themselves, and for some, it is the liberty of doing anything they like.

Various civic freedoms were introduced to maintain a society that flourished intellectually, lived in harmony and focused on personal development. Various democracies around the world provide this freedom under various facets and mostly they are enshrined in their constitution under the domain of Fundamental rights. Under the Indian Constitution, the Fundamental Rights — embodied in Part III of the constitution — guarantees liberties such that all individuals can lead their lives in peace as citizens of India. The six fundamental rights are right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights and right to constitutional remedies.

The Constitution of India provides the right to freedom, as enshrined under Article 19 with a view to ensuring individual rights that were considered vital by the framers of the constitution. The right to freedom in Article 19 guarantees the freedom of speech and expression, as one of its six freedoms.

Historical Evolution of Fundamental Freedoms

The Constitution of India, 1950 was drafted by the Constituent Assembly from 1946-1950. However, this Constitution drew on a long history of antecedent documents drafted either as legislation governing British India or aspirational political documents[1]. The Constitution of India Bill 1895, widely considered to be the first Indian articulation of a constitutional vision, contained the following provision related to freedom of speech and expression – “Every citizen may express his thoughts by words or writings, and publish them in print without liability to censure, but they shall be answerable to abuses, which they may commit in the exercise of this right, in the cases and in the mode the Parliament shall determine.”

Other constitutional antecedent documents too contained provisions on freedom of speech and expression. These included: Commonwealth of India Bill 1925, Nehru Report 1928, and States and Minorities 1945. In most cases, the provisions contained some form of restrictions on freedom of speech and expression. The Constituent Assembly of India while drafting debated on freedom of speech and expression (Article 19(1) of the Draft Constitution, 1948) on 1 December 1948, 2 December 1948 and 17 October 1949. The draft article read:

“Subject to the other provisions of this article, all citizens shall have the right – (a) to freedom of speech and expression; Provided: Nothing in sub-clause (a) of clause (1) of this article shall affect the operation of any existing law, or prevent the State from making any law, relating to libel, slander, defamation, sedition or any other matter which offends against decency or morality or undermines the security of, or tends to overthrow the State.”

Most members of the Constituent Assembly welcomed the inclusion of the right. However, conflict emerged around the provision in the Article that placed restrictions on the right: while some members opposed the mention of restrictions on the right, others supported it. Members who opposed the restrictions argued that firstly, there is no point in having a right to freedom of speech and expression with restrictions and secondly, putting restrictions on the freedom of speech and expression was a British practice.

Members who supported the restrictions argued that restrictions are fair as the government now is not a colonial one. Nowhere in the world is freedom of speech and expression absolute. Law-order and security of the state can’t be compromised. In the end, the Constituent Assembly voted on the Article and included the “Right to freedom of speech and expression” in the Constitution of India, 1950 with restrictions similar to the ones mentioned in the Draft Constitution, 1948.

Right to Protest

Lord Acton quoted that “Power tends to corrupt and absolute power corrupts absolutely.” To keep a check on the power and to deepen the democracy the citizen most commonly uses an instrument called ‘Protest’. The term “protest” is not defined in international law or municipal law, despite its frequent use in legal and non-legal settings. A protest may be defined as the individual or collective expression of oppositional, dissenting, reactive or responsive views, values or interests. The right to protest peacefully is enshrined in the Indian Constitution—Article 19(1)(a) guarantees the freedom of speech and expression; Article 19(1)(b) assures citizens the right to assemble peaceably and without arms. Hon’ble Supreme Court has reiterated the importance of the right of protest numerously. In the case of Ramlila Maidan Incident v. Home Secretary, Union Of India & Ors.[2], the Supreme Court stated, “Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.”[3] It was in Maneka Gandhi vs. Union of India[4] that Justice Bhagwati said, “If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is absolutely essential.”

Restriction on Right to Protest

Article 19(1)(3) says this right is subject to “reasonable restrictions” in the interest of public order.[5]

What are these reasonable restrictions?

• If the security of the state is in jeopardy;

• If the friendly relationship we share with a neighboring country is at stake;

• If public order is disturbed;

• If there is contempt of court;

• If the sovereignty and integrity of India are threatened.

Permission required to hold a Protest

Since ‘Law and Order’ is a State subject, the permission to organize a protest varies from state to state.[6] One needs to keep a check on the local laws before exercising the right to protest. Broadly these steps include:

• Ensuring that one has a police permit and a No-Objection Certificate (NOC) from the police. In case the police feel that the protest rally or demonstration will lead to unrest and disturb the public order, permission can be denied.

• Inclusion of all the details of the protest in the petition before submitting to the police.

• Details must include the reason for the protest, its date and duration, the number of people expected to participate, and the route that the protestors will undertake.

Rights to Protest in International law

The First Amendment to the United States Constitution prohibits the United States Congress from enacting legislation that would abridge the right of the people to assemble peaceably.[7]  The Fourteenth Amendment to the United States Constitution makes this prohibition applicable to state governments. The Supreme Court of the United States in Hague v. C.I.O.,[8] has held that the First Amendment protects the right to conduct a peaceful public assembly. The right to assemble is not, however, absolute. In Shuttlesworth v. City of Birmingham,[9] it was held Government officials cannot simply prohibit a public assembly in their own discretion, but the government can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met.

The Human Rights Act, 1998 provides the fundamental rights and freedoms that everyone in the UK is entitled to. Under Article 11(1) of the said Act, “everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.” Article11(2) further provides that no restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.[10]The European Court of Human Rights, in the case of Djavit An v Turkey[11] held that the right to freedom of peaceful assembly is a fundamental right in a democratic society and one of the foundations of such a society. It, therefore, should not be interpreted restrictively. The right to freedom of assembly and association is also contained in Articles 21 and 22 of the International Convention on Civil and Political Rights (ICCPR) and Article 8(1)(a) of the International Convention on Economic, Social and Cultural Rights (ICESCR).[12]

Supreme Court of India and Right to Protest

In the Constitutional Bench Judgment, Himat Lal K. Shah v. Commissioner of Police, Ahmedabad [13], while dealing with the challenge to the Rules framed under the Bombay Police Act regulating public meetings on streets, held that the Government has the power to regulate which includes prohibition of public meetings on streets or highways to avoid nuisance or disruption to traffic and thus, it can provide a public meeting on roads, but it does not mean that the government can close all the streets or open areas for public meetings, thus denying the fundamental right which flows from Article 19(1)(a) and (b). The Court held: “This is true but nevertheless the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order.”

In Re: Destruction Of Public&Pvt. vs State Of A.P. & Ors,[14] “Supreme Court laid down that as soon as there is a demonstration organized:

(I) The organizer shall meet the police to review and revise the route to be taken and to lay down conditions for a peaceful march or protest;

(II)All weapons, including knives, lathis and the like shall be prohibited;

(III) An undertaking is to be provided by the organizers to ensure a peaceful march with marshals at each relevant junction;

(IV) The police and State Government shall ensure videography of such protests to the maximum extent possible;

(V) The person in charge to supervise the demonstration shall be the SP (if the situation is confined to the district) and the highest police officer in the State, where the situation stretches beyond one district;

(VI) In the event that demonstrations turn violent, the officer-in-charge shall ensure that the events are videographed through private operators and also request such further information from the media and others on the incidents in question.

(VII) The police shall immediately inform the State Government with reports on the events, including damage, if any, caused.

(VIII) The State Government shall prepare a report on the police reports and other information that may be available to it and shall file a petition including its report in the High Court or Supreme Court as the case may be for the Court in question to take suo moto action.”

Reflecting on the usage of Section 144 of Cr.P.C. and restricting the right to freedom of assembly and expression, in Re-Ramlila Maidan Incident vs. Home Secretary And Ors.[15] held that “Section 144 Cr.P.C. deals with immediate prevention and speedy remedy. Therefore, before invoking such a provision, the statutory authority must be satisfied regarding the existence of the circumstances showing the necessity of immediate action. The sine qua non for an order under Section 144 Cr.P.C. is urgency requiring an immediate and speedy intervention bypassing of an order. The order must set out the material facts of the situation. Such a provision can be used only in grave circumstances for the maintenance of public peace. The efficacy of the provision is to prevent some harmful occurrence immediately. Therefore, the emergency must be sudden and the consequences sufficiently grave.”

Conclusion

President Ram Nath Kovind alluded in his speech soon after moving into Rashtrapati Bhavan: “Nations are not built by governments alone. The government can at best be a facilitator and a trigger for society’s innate entrepreneurial and creative instincts… Each citizen of India is a nation-builder.”[16] Mahatama Gandhi believed, “Real Swaraj will come not by the acquisition of authorities by a few but acquisition capacity by all to resist autho­rity when opposed”.[17] At another place he asserts, “Civil disobedience is the inherent right of a citizen.”[18] Violence disrupts life, it disrupts the working of administrative machinery. Often protests often become violent and anti-social elements awaken and create the conditions of insecurity. People’s Will is the essence of democracy and if there is no dissent in a democratic State it is not a true democracy. People must have the liberty to speak out their minds subject to their duties as a citizen. The right to protest is adherent within the democratic set-up, however, rights have their corresponding obligations and so one should not cross the legitimate bounds of our rights.


[1] CADIndia”. cadindia.clpr.org.in. Retrieved 29 December 2019

[2] (2012) 5 SCC 1

[3] Ibid.

[4] (1978) 1 SCC 248

[5] The Constitution of India(2014)New Delhi : Universal Law Publishing pg. 12-13.

[6] The Constitution of India(2014)New Delhi : Universal Law Publishing pg. 233.

[7] The First Amendment states that “Congress shall make no law respecting an establishment of religion, or   prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”  U.S. Const. Amend. I , available at http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

[8] 307 U.S. 496, 512 (1939)

[9] 394 U.S. 147, 150–51 (1969)

[10] http://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/1  visited on 01 January 2020.

[11] (2005) 40 EHRR 45

[12]https://www.ag.gov.au/RightsAndProtections/HumanRights/Human-rights scrutiny/PublicSectorGuidanceSheets/Pages/Righttofreedomofassemblyandassociation.aspx

[13] (1973) 1 SCC 227 

[14] (2007) 4 SCC 474

[15]  (2012) 5 SCC 1

[16] https://www.financialexpress.com/india-news/president-ram-nath-kovind-defines-nation-builders-new-india-2022/778505/ Visited on 01 January 2020

[17] https://www.mkgandhi.org/indiadreams/chap02.htm Visited on 01 January 2020

[18] https://www.mkgandhi.org/voiceoftruth/civildisobedience.htm Visited on 01 January 2020

Leave a Reply

Your email address will not be published. Required fields are marked *

WhatsApp chat