Understanding the Historical and Constitutional Making of Right To Protest in India

In recent years, the right to protest in India has become a courageous exercise of upholding democracy and constitutional ideals. To protest then is not simply exercising one’s right. It is also an act of defiance, and a means to uphold other fundamental rights. A German-Jewish political theorist, Hannah Arendt, wrote that vita active or the life of action and speech are the basis of one’s political life. And only by speaking one can register themselves as a living and acting being. If Arendt were believed, then registering oneself through protest and speech is fundamental to being human and a political being.

Dhruv Vatsyayan and Arpit Saxena ask if the peaceful right to protest is indelible to other fundamental rights, then why does it face excessive executive action.  Dhruv and Arpit also trace the history of the right to protest in India in colonial and post-colonial times.

right to protest in India

By Dhruv Vatsyayan and Arpit Saxena, second-year BA LLB students of the Faculty of Law at the Banaras Hindu University.

Introduction

What if the Bastille was never stormed and Rosa Parks never refused to give up her seat to a white man? What if the Stonewall Inn Riots and Woman Suffrage Movement didn’t shock the world?

Would the world be less egalitarian without these markers of protest? While this piece doesn’t promise a concrete answer to these questions, it’s relevant to think about them.

According to Karl Marx, the socio-political history of human existence has been of struggles, confrontations, protests, and dissents.[1]

Protests are universal. It is a right that either emanates from democracy or is exercised because of the latter’s absence.

Almost every instance of a paradigm shift in the past has been due to the culmination of some protests.

A protest is an individual or an aggregate’s voice to express dissent or opposition against government inaction or encroachment of rights. It is an act of expressing freedom or the lack of it through art, speech and culture.

The motive for a protest can vary from criticising a group/party/government or a poorly designed policy. Protests also represent the voice of the socially excluded or discriminated, affirming one’s sense of identity.[2]

One can exercise their right to protest if the same is recognised by the law and coupled with the legal, moral and ethical justification to participate.[3] Just to put in perspective, the right to protest as a civil-political right is not only a right in itself, instead a gateway to claim and vocalise the demands for other civil and political rights.

Across the globe, several constitutions have explicitly or implicitly recognised the right to protest as one of the fundamental rights. However, this piece will probe whether the Constitution of India enables protests, contouring how the same has played out in pre and post-independence India. For the same, this piece will use various case laws that have liberated or curtailed the definitions of protests, expanding on the extent of its exercise.

The Right to Protest in India during Colonial Past: A Politico-Legal Enquiry

While addressing the thirty-sixth session of the Indian National Congress at Ahmedabad, Mahatma Gandhi advocated a case for nationwide civil disobedience and asserted:

“…civil disobedience is the only civilised and effective substitute [for an armed rebellion], whenever every other remedy for preventing arbitrary, tyrannical and emasculating use of authority by individuals or corporations has been tried…[for] those who believe in peaceful methods and are convinced that there is no remedy save some kind of sacrifice to dislodge the existing government from its position of perfect responsibility towards the citizens of India.”[4]

Mahatma Gandhi’s call for civil disobedience was an essential signifier of protest and part of the Indian freedom struggle. However, was civil disobedience legally recognised?

The right to protest is interconnected with the freedom of speech and expression and the freedom of assembly.

Assemblies can be defined as any intentional and temporary gathering of a group of people in a private or public space for a specific purpose. Assemblies play a vibrant role in mobilising the population, formulating grievances, demands and aspirations. In addition, they facilitate the celebration of events and influence States’ public policy.[5]

At the same time, the expression of individual or collective opinions is one of the various objectives of any protest. However, colonial legislation like the Rowlatt Act (1919)[6] and the Prevention of Seditious Meetings Act (1911)[7] disregarded the civil-political rights of the Indian subjects. Therefore, they also delegitimised any collective exercise of freedom of expression.

In some instances, the courts did recognise a diluted version of the right to protest, that is, the right to non-aggressive and peaceful picketing. For example, while adjudicating Emperor v Chaturbhuj (1992)[8] in the Allahabad High Court, Justice Stuart had observed:

“…all that is meant by picketing is that a certain number of well-intentioned and law-abiding persons wish to argue in a legitimate and peaceful manner with a man, pointing out to him that in his own advantage he should not follow a certain course, there can be no doubt that such a proceeding is not only harmless but, in many cases, it may be laudable, and if picketing to the ordinary mind meant nothing more than that, the fear of picketing would not be fear of injury within the meaning of the law…”

Moreover, in the Gandhi-Irwin pact of 1931, the government agreed to permit the peaceful picketing of liquor, opium and foreign clothes shops.[9]

Nevertheless, neither the masses nor the nationalist leaders were content with jiffs of freedom. Therefore, the Nehru Committee Report[10] advocated for some fundamental rights for Indian subjects. This Report demanded freedom of speech and association for lawful purposes interalia, if not the right to protest verbatim.

Similarly, the Swarajya resolution, adopted at the Karachi Session of the Indian National Congress in 1931, also put forward a concrete demand for ‘freedom of association & combination and, freedom of speech & press’.[11]

Drawing on the above arguments, even though the nationalists were keenly demanding such rights from the colonial government, the British seldom recognised the right to have a peaceful assembly and freedom of speech and expression.

Right to Protest in Indian Constitutional Jurisprudence

On the midnight of August 15, 1947, the Constituent Assembly members gathered together to witness India’s independence.[12] Subsequently, the Constituent Assembly adopted the Constitution of India. [13] However, it will be naive to say that India’s Independence and the new Constitution had marked a definitive break from the colonial past.

How then did this new constitutional regime empower citizens with the right to protest?

The framers of the Constitution regarded democracy to avail civil liberties like freedom of speech and expression, which were not recognised and protected by the colonial state. However, they conceded that one of India’s cherished and valuable aspects of political life is its tradition of expressing grievances through direct action or peaceful protest. [14]

According to them, ‘democracy’ was, in essence, a government by popular public opinion.[15] Therefore the means of formulating public opinion should be secured to the people of a democratic nation. Thus, incorporating the right to protest peacefully was essential for new India. But this inclusion was not as explicit.

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) are two inalienable rights and form the cornerstone of the Constitution of India.

These rights, when read coherently, enable every citizen to assemble peacefully and protest against the actions or inactions of the state.[16]

Moreover, specifically Article 19(1)(c)[17]and Article 19(1)(d)[18] grant the right to form an association or union and to move freely throughout the territory of India, respectively. These articles also paved the way for Indian citizens to exercise their right to protest.

In India, the protests are staged primarily in picketing, demonstrations, strikes and bandhs. If non-violent, these forms are regarded as the manifestation of the freedom of speech & expression, peaceful assembly and association and a free movement throughout the territory of India.

One of the earliest cases where the Supreme Court recognised the right to demonstrate, a form of the right to protest, as freedom guaranteed under Article 19(1)(a) and Article 19(1)(b), was Kameshwar Prasad v. State of Bihar.[19]The Apex Court, in this case, observed:

“…a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus communication of one’s ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression…”

Accordingly, the Apex Court struck down the part of the impugned rule that prohibited ‘any form of demonstration’ because it violated the rights of the appellants guaranteed under Article 19(1)(a) and Article 19(1)(b).

In Kameshwar Prasad, although the Apex Court visited the right to demonstrate through Article 19(1)(a) substantially, Article 19(1)(b) was also touched upon incidentally. However, the role of In Himmat Lal K Shah,[20] rule (7) framed under Section 33(1) of the Bombay Police Act (1951) got challenged. [21] The appellant claimed that using the said rules; the police denied permission to hold a public meeting. He also claimed the same was violative of the fundamental rights under Article 19(1)(a) and 19(1)(b).

This rule did not guide the concerned officer about the circumstances in which he could deny the permission to hold a public meeting.

The Apex Court found that rule (7) put an unreasonable restriction on Article 19(1)(b) and held it to violate the same.  Mathew, J., in his concurring judgment, wrote:

“freedom of assembly is an essential element of any democratic system. At the root of this concept lies the citizens’ right to meet face to face with others for the discussion of their ideas and problems- religious, political, economic or social. Public debate and discussion take many forms including the spoken and the printed word, the radio, and the screen. But assemblies face to face perform a function of vital significance in our system and are no less important at the present time for the education of the public and the formation of opinion than they have been in our past history. The basic assumption in a democratic polity is that the government shall be based on the consent of the governed. But the consent of the governed implies not only that the consent shall be free but also that it shall be grounded on adequate information and discussion…”[22]

The constitutional courts’ quest to recognise the right to protest in the constitutional framework can be traced back to both these cases, Kameshwar Prasad and Himmatlal.

In the evolution of the right to protest, the constitutional Courts gradually shaped it concretely as a fundamental right. For instance, in Ramlila Maidan Incident[23], Justice Swatanter Kumar observed, resonating with the idea of the right to protest as a fundamental right. He said:

“Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the government or even to express their resentment over the actions of the government on any subject of social or national importance.”

Moreover, the Apex Court also posited that the government must respect and encourage such rights. Therefore, it is an abundant duty of the state to promote and aid the right to freedom of speech and expression in its complete sense. Thus, to realise this right completely, the state must not frustrate the exercise of such rights by abusing executive and legislative powers in the name of reasonable restrictions.[24]

Looking at these cases, it won’t be incorrect to say that the government’s duty during the exercise of such a right to protest is not only to let the protest happen peacefully. But, additionally, it is also upon the government to aid the exercise of their fundamental right to protest.

In Ramlila Maidan and other following judgments, the Court has followed its earlier trajectory of locating the right to protest through Articles 19(1)(a) and 19(1)(b). In Mazdoor Kisan Shakti Sangathan[25], the Apex Court observed:

“holding peaceful demonstrations by the citizenry in order to air its grievances and ensure that these grievances are heard in the relevant quarters, is its fundamental right. This right is specifically enshrined under Articles 19(1)(a) & 19(1)(b) of the Constitution of India.”

Nevertheless, Article 19(1)(c) and 19(1)(d) are also potent sources of the right to protest.

Article 19(1)(c), which guarantees the right to ‘form associations or unions or co-operative societies’ is an essential provision that aids the right to protest in India a little further. In a democratic nation like India, this right is of paramount importance to address the issues of common concern.

Socio-political associations have led to several widespread protests in India. For example, the Dasholi Gram Swarajya Sangh, an association of a handful of local villagers, was the soul and flesh of the Chipko Andolan.[26]

On the other hand, Article 19(1)(d) guarantees citizens the right to move freely throughout the territory of India. Section 19(1)(d), thus, forms the basis for the right of taking out peaceful marches and processions that are concomitant to the fundamental right to protest.

The Apex Court, while elucidating this very proposition, observed in Anita Thakur judgement[27] that the right to move freely given under Article 19(1)(d), again, ensures that the petitioners could take out a peaceful march.

The right to protest can equally be well-founded in Article 21 of the Constitution of India.

To appreciate this argument, one must be acquainted with the expansive interpretation of Article 21 re-iterated by the Constitutional Courts after the Maneka Gandhi judgment[28]. In the judgment, Justice Bhagwati held:

“the expression ‘personal liberty’ in Article 21 is of widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been raised to the status of distinct fundamental rights and given additional protection under Article 19.”

Now, there are two varied approaches to confront this hypothesis.

The first one flows directly from the judicial observation that ‘life’ in Article 21 does not mean merely ‘animal existence’ but living with human dignity’.[29]Thus, to protest against an oppressive regime, its injustices, arbitrary actions or policies of the state is an essential exercise of one’s right to live with dignity. Hence, it can be argued that the right to life and personal liberty also includes the right to protest.

The second approach flows from Directive Principles of State Policy through Article 21. The Constitutional Courts in India, unlike the United States, do not follow the principle that unless some right is not expressly granted in the bill of rights, it can’t be treated as one.

It has been time and again adduced by the Courts in India that through judicial activism, they can always discover what can be called ‘implied fundamental rights’. Many times, these ‘implied fundamental rights’ have been unearthed by reading Article 21 with some Directive Principles.[30]

For this purpose, Article 38 stands relevant. Article 38(1)[31], read with Article 21, can be interpreted as giving effect to the fundamental right to protest. Article 38(1) suggests an obligation upon the state to aid the citizenry to create a social order that shall promote social, economic, and political justice.

Creating such a social order would necessarily imply constitutional recognition of the right to protest, which is an indispensable part of national life. Thus, when Article 38(1) is given effect by expansive interpretation of Article 21, this leads us to constitutional recognition of the right to protest.

It is necessary to analyse the constitutionally founded restrictions and limitations upon the right to protest to immunise this fundamental right against misuse or abuse. In fact, no freedom or right can be absolute and without any reasonable restrictions.[32]

There cannot be any liberty absolute in nature and uncontrolled in operation. Thus, while on the one hand, citizens are guaranteed the fundamental right of peaceful protest. But, on the other hand, reasonable restrictions on such rights can be imposed by law.

Various statutory provisions and constitutional principles confer powers upon the state to ensure that public assemblies, protests, dharnas or marches do not turn ‘unlawful’.[33]

The author of ‘Indian Constitutional Law’, Prof MP Jain, has noted that the purpose of such restrictions and limitations is twofold.  First, they categorically state that such rights and freedoms in question are not absolute. Second, they restrain the power of the legislature and the executive to restrict these rights.[34]

While the right to protest is essential, it’s crucial that this right must not be exercised to trample upon the fundamental rights of others. For instance, while exercising the right to protest, one must be aware not to harm the interests of the residents in that locality.[35]

This perspective functions across two stages – (i) limiting the right; and (ii) balancing the rights.

Since the right to protest fundamentally originates from Article 19 hence, the reasonable restrictions under Article 19 will also apply to the right to protest. Further, the restriction of ‘subject to security of the state and public order’ remains most important.

This ground for limitation is frequently used in India. Many of these protests and demonstrations take the form of riots and affrays detrimental to the state and public order security.[36]

Such situations have been tackled time and again by invoking Section 144 CrPC.[37] Section 144 is often enforced to prevent disorders, obstructions and annoyances with a view of maintaining public peace and tranquillity.[38] Further, the SC has held that using S.144 CrPC to maintain the public order by prohibiting the exercise of the right to protest is a good law and not arbitrary action.

However, such orders could simply be an abusive exercise to tame rights to ‘ban’ public meetings, demonstrations, etc.[39] Thus, wielding S.144CrPC in such a manner would amount to arbitrary administrative action and violation of fundamental rights.

Cases like Anuradha Bhasin v Union of India[40] and Himmat Lal were immune to discretionary administrative powers of the state.[41]However, the ghost of S.144 CrPC still haunts the right to protest. Moreover, the burden of proof rests upon the individuals as magistrates are authorised to impose anticipatory orders prohibiting any assembly.

If, in case, the state’s decision to impose Section 144 is challenged before courts, the burden of proof falls on the petitioner. The same was evident in the recent anti-CAA protests across the nation.  The Indian state had imposed several such sections that curb public meetings or congregations, including Section 144. At the same time, these measures were justified in the name of ‘public order’ without any well-founded apprehension of violence and destruction of public order.[42]

Lastly, the right to protest, or for that matter, any right conferred under Article 19 of the Indian Constitution, can be limited by the principle of ‘balancing the rights’. In this light, Amit Sahani and Mazdoor Kisan judgments are remarkable.

The jurisprudential basis of this principle is that each fundamental right, whether individual or class, does not exist in isolation. It has to be balanced with every other contrasting right.[43]

For example, in Mazdoor Kisan, people residing near the Jantar Mantar faced environmental and sanitary hardships because the area was earmarked by the authorities to stage protests and dharnas. This led to a surge in noise pollution caused by the loudspeakers, and the constant presence of the police forces in the area led to congestion in traffic. The Apex Court opined:

“there may be situations where conflict may arise between two fundamental rights….the Court has to examine as to where lies the larger public interest while balancing the two conflicting rights. It is the paramount collective interest which would ultimately prevail.”[44]

Similarly, in Amit Sahani, the anti-Citizenship Amendment Act (CAA) protesters created a blockade on a public road in Shaheen Bagh. Protestors’ rights came into direct conflict with the interests of the general commuters. The Apex Court balanced the rights and upheld the rights of the general masses. The court also observed:

“Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone…..We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.”[45]

Thus, the limitations upon the fundamental right to protest are a way of social control and a way to balance the interests of the masses.

Way Ahead

right to protest in India
Image Credits: (from right to left and bottom)Indian Express and Time Youth Ki Awaaz.

In India, 2019 and 2020 were marked by several protests. The protests against the Citizenship Amendment Act and the impugned Farm Laws challenged controversial laws against the face of adversaries. In this regard, political scientist Rajeev Bhargava remarked that such public protests are the earmark of a free and democratic society. According to him, these protests ensure the hoi polloi (the common people) are heard by those in power. Therefore, forcing the legislative to make decisions based on deliberation and consultation.[46]

The right to protest is intrinsic to the Indian Constitutional scheme. The last couple of years have contributed significantly to strengthen[47] the same. However, these years also mark an increased use of draconian laws like the Unlawful Activities Prevention Act (UAPA) and preventive detention against protesters. For instance, after the CAA protest and subsequent riots in Delhi, those arrested were primarily students and activists.

The detention of political activist Safoora Zargar for her involvement in the anti-CAA protests projected states’ insecurities.[48] Such arrests discourage citizens from exercising their right to protest. They were also violative of the decision in the Ramlila Maidan case, which mandated the state to aid the citizens to exercise their rights.

Many would argue that if protests become unlawful and pose a danger to the public order, they can’t be protected under Articles 19 and 21.  However, the vast executive discretion under various penal and procedural provisions and the burden of proof falling upon the protesters make the exercise of these rights contingent on the whims and fancies of the ruling government.

Lastly, the Indian Constitution is well-founded and emanates from several protests that happened before it. And these protests against the colonial regime validated the exercise of constitution-making. Therefore, to stifle dissent and freedom by imposing extraordinary authority over peaceful protests and protesters violates constitutional principles and democracy.

Endnotes

[1] See, Karl Marx and Frederick Engels, The Communist Manifesto 34-35 (Oxford University Press, USA, 1992); Karl Marx and Frederick Engles, The German Ideology 48-49 (Lawrence & Wishart, London, 1974)

[2] Inter-American Commission on Human Rights, Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights, Protests and Human Rights, OEA/SER.L/V/IICIDH/RELE/INF.22/19 (September 2019).

[3] Papiya Sengupta Talukdar, Rights in Political Theory: An Introduction 90 (6th ed. 2016).

[4] Mahatma Gandhi, Moving the Main Resolution at 36th Session of Indian National Congress (December 28, 1921).

[5] United Nations Human Rights Council [UNHRC], Report of the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and association, Maina Kiai, Pp. 51, U.N. Doc. A/HRC/20/27 (May 12, 2012).

[6] The Anarchical and Revolutionary Crimes Act, 1919 (Act No. XI of 1919), Available at https://legislative.gov.in/sites/default/files/legislative_references/1919.pdf

[7] The Seditious Meetings Act, 1911 (Act No. X of 1911); Available at https://www.indiacode.nic.in/bitstream/123456789/15420/1/seditious_meeting_act_%282%29.pdf

[8] Emperor v. Chaturbhuj, ILR (1923) 45 All 137.

[9] M. Siddharth, An Analysis On The Indian Civil Disobedience Movement, 3 IJSSER 7158, 7165 (2018).

[10] Rafi Ahmed Kidwai, Indian National Demand: Being A Summary of the Nehru Reports & the Proceedings of the National Convention held in Calcutta in December 1928 4 (1st ed. 1928).

[11] Indian National Congress, Report on 45th Annual Session, 1931, Pp. 139.

[12] Jawaharlal Nehru, Member, Constituent Assembly of India, Tryst with destiny (August 15, 1947).

[13] The Constitution of India, 1950, Preamble.

[14] Anita Thakur v. State of J&K, (2016) 15 SCC 525.

[15] Constituent Assembly Debates on 24th November 1949, available at:

http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C24111949.pdf  (last visited on August 19, 2021)

[16] Amit Sahni v. Commr. of Police, (2020) 10 SCC 439.

[17] Anita Thakur v. State of J&K, (2016) 15 SCC 525.

[18] Id. at 4.

[19] Kameshwar Prasad v. State of Bihar, AIR 1962 SC 1166.

[20] Himmat Lal K Shah v. Commissioner of Police, Ahmedabad, AIR 1973 SC 87.

[21] The Bombay Police Act, 1951 (Bombay Act No, XXII of 1951)

[22] Id. at 5.

[23] In Re Ramlila Maidan Incident, (2012) 5 SCC 1.

[24] Id. at 6.

[25] Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324.

[26] Petruzzello, Melissa. “Chipko movement”. Encyclopedia Britannica, 24 May. 2021, https://www.britannica.com/topic/Chipko-movement. (Accessed 20 August 2021)

[27] Anita Thakur v. State of J&K, (2016) 15 SCC 525.

[28] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

[29] M.P. Jain, Indian Constitutional Law 1209 (Justice Jasti Chelameswar & Justice Dama Sheshadri Naidu, 8th ed. 2018).

[30] Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645.

[31] which reads as “the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”

[32] In Re Ramlila Maidan Incident, (2012) 5 SCC 1.

[33] Anita Thakur v. State of J&K, (2016) 15 SCC 525.

[34] Jain, supra note 25.

[35] In Re Ramlila Maidan Incident, (2012) 5 SCC 1.

[36] The Superintendent v. Ram Manohar Lohia, AIR 1960 SC 633.

[37] The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974.

[38] Gulam Abbas v. State of U.P., (1982) 1 SCC 71.

[39] Bano Bee v. Union of India, 2010 SCC OnLine Del 2564.

[40] Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25.

[41] Supra note 18.

[42] Karan Gupta, Notes From A Foreign Field: The Ugandan Constitutional Court on the Right to Protest, Indian Constitutional Law and Philosophy (April 12, 2020), https://indconlawphil.wordpress.com/2020/04/12/notes-from-a-foreign-field-the-ugandan-constitutional-court-on-the-right-to-protest-guest-post/.

[43] Amit Sahni v. Commr. of Police, (2020) 10 SCC 439.

[44] Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324.

[45] Amit Sahni v. Commr. of Police, (2020) 10 SCC 439.

[46] Rajeev Bhargava, The right to protest in a free society, The Hindu (January 22, 2020, 00:15 IST),  https://www.thehindu.com/opinion/op-ed/the-right-to-protest-in-a-free-society/article30618223.ece.

[47] Sowmya Reddy v State of Karnataka, 2020 SCC OnLine Kar 1527; Josgiri Hospital v. District Police Chief, WP(C) No.1058 of 2021(F) (Kerala H.C.) (Unreported).

[48] Suhasini Haidar, UN rights panel slams detention of Safoora Zargar, The Hindu (March 13, 2021, 19:01 IST),  https://www.thehindu.com/news/national/un-rights-panel-slams-detention-of-safoora-zargar/article34061744.ece.

 

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