Freedom of Speech & Expression: Demystifying the Right to Protest in India
Soumya Sharma and Kanishka Pamecha, Students, Dr. Ram Manohar Lohiya National Law University, Lucknow
“You can’t cheer when political officials punish the expression of views you dislike and then expect to be taken seriously when you wrap yourself in the banner of free speech in order to protest state punishment of views you like and share.”
India contains a long history of prodigious and anomalous protests. It’s prevalent thanks to the reciprocity of numerous factors that are present in the country for decades. The genesis of the protest movement has been traced to the independence struggles, wherein it had been an imperative component of peoples’ lives. In contemporary times, our country is facing a series of blatant protests; by farmers, by students, by minorities etc. They still assemble within the streets, reiterating that, “we who engage in non-violent direct action are not the creator of tension. We merely bring to the surface the hidden tension that is already alive”.
The Constitution of India bestows upon its citizens, the fundamental freedoms of Speech and Expression, assemble peacefully and without arms, to form associations and unions and to move freely throughout the territory of India under Article 19(1)(a), (b), (c), (d) respectively. The “right to assemble” is beautifully captured in an eloquent statement that “an unarmed peaceful protest procession in the land of “salt satyagraha” fast-unto-death and “do or die” is no jural anathema”. One cherished and valuable aspect of political life in India is a tradition to precise grievances through dissent or peaceful protest and it’s now recognised as a fundamental right in the Constitution.
Right To Protest: Its Delineation
The right to freedom of expression, association and peaceful assembly have been recognised as the hallmarks of a free and democratic society. In Mazdoor Kisan Shakti Sanghatan vs Union of India, the Supreme Court held that, “holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is the fundamental right under Article 19(1)(a) and 19(1)(b) of the Constitution of India. It was contended that right to protest and assemble peacefully is a distinguishing feature of any democracy and provides a space for legitimate dissent”.
Further in Re-Ramlila Maidan Incident Dt v. Home Secretary and Ors, SC held, “The freedom of speech is the bulwark of the democratic process. It is regarded as the first condition of liberty and occupies a preferred position in the hierarchy of liberties, giving succour and protection to all other liberties. Liberty of thought enables liberty of expression. Attainment of the preambles liberties is eternally connected to the liberty of expression.”
In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, the SC held, “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”. Any arbitrary restraint on the exercise of such right vide Section 144 of CrPC shows the inability of the government to tolerate dissent. IPC and CPC are in the nature of reasonable restrictions, which are statutory provisions giving powers to the State to ensure that such public assemblies, protests, dharnas or marches are peaceful and do not become unlawful.
Doctrine Of Reasonable Restrictions
Since these rights are not absolute and untrammelled in their scope, it was held in State of West Bengal v. Subodh Gopal Bose that, “The right that springs from Article 19(1) is not absolute and unchecked. There cannot be any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free from any restraint. Had there been no restraint, the rights and freedoms may become synonymous with anarchy and disorder.” Article 19 (2) imposes some reasonable limitations on the freedom of speech and expression incorporated under Article 19(1) (a). The ingredients of Article 19(2) are that: a) the action of the State must be sanctioned by law; b) the proposed action must be a reasonable restriction; c) such restriction must be in furtherance of the interests of the sovereignty and 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. In a catena of judgements, the Supreme Court has held that “reasonable restrictions” are indispensable for the realization of freedoms enshrined under Article 19, as they are what ensures that enjoyment of rights is not arbitrary and excessive, so as to effect public interest.
In the famous Shaheen bagh case, the Supreme Court held, “the right to protest guaranteed under the Constitution of India cannot be exercised at public places for an indefinite period of time and can be held only in designated places”. The protestors do have a right to protest and express dissent under Articles 19(1)(a) and 19(1)(b), however, these rights are subject to reasonable restrictions pertaining to the sovereignty of the State and public order. Only if there is proof that protestors will provoke lawless or disorderly actions, which such acts are likely to occur, is the term "public order" used in Article 19(2) as a legal basis of restriction fair. Ironically, the bench makes no attempt to point out that its limitations on demonstrations in public places, ostensibly to prevent causing inconvenience to commuters, satisfy the “public order” test under Article 19 (2).
Relying on the decision in Mazdoor Kisan Shakti Sangathan v. Union of India, The Court stated that protestors' rights must be balanced against commuters' rights, and directed the Delhi Administration to act in "their duty" to ensure that public spaces and roads are not occupied indefinitely by protestors. This decision not only limits the correct to protest but makes way for the authorities to clear any and each protest distributed at a public place. Further, the Court also failed to lay down any clear guidelines for the executive authorities to stick to. This decision gives the authorities considerable power to limit the amount of demonstrators, the length of the demonstrations and, above all, the employment of public spaces. The Court has taken away the entire essence of the right to protest by giving administrative authorities the discretion to limit the usage of public places, where most protests are carried out.
The court also said that demonstrations of dissent can only be organised in “designated places”. While the court has been wanting to formulate rules regulating the expression of dissent and protest, it's not bothered to deliberate at any stage on the role of the state in defining such defined places. Does the state have limitless discretion in specifying designated places? Isn't it ironic that the state against which opposition is to be expressed is often able to control so overwhelmingly how to stage a peaceful protest? The other question that needs to be answered is whether the imagined discomfort of commuters is a "reasonable" constraint on the constitutionally guaranteed rights? After all, because of one reason or the other, commuters are inconvenient all the time in a city like Delhi. Can all such activities be declared illegal as well because of the inconvenience they cause to commuters?
By curtailing access to public spaces for protest, the state and native authorities have begun to exercise a virtual monopoly of control on every open space at which an outside meeting are often held. If therefore, the government or municipality can constitutionally close both its streets and its parks entirely for public meetings, the sensible result would be that it might be impossible to carry any open-air meetings in any large city.
The Constitution guarantees that the right to protest exists, but these rights are not of an absolute nature and should be subject to appropriate limitations, as provided for in Article 19(2), which are essential in the interests of the country's sovereignty and dignity. Passive resistance and Satyagraha are well-known instruments of protest. A fundamental feature of India's democracy is the freedom of people to demonstrate and assemble peacefully without weapons. It is the duty of the State to control the effective exercise of that right and not to ensure that it is excessively used in the hands of the people, although the inclusion of fair restrictions on the conduct of a demonstration is also an integral part of preventing its misuse. Public and protesting citizens, the interests of both groups need to be effectively managed and protected. The government must take action to ensure that opposing voices are heard and that the general public is not inconvenienced at the same time. But, by eliminating peaceful and democratic protestors from streets and public places with use of force and excessive measures, India will remain a democracy with empty promises.
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