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THE CONSTITUTIONAL VALIDITY OF THE RIGHT TO PROTEST IN INDIA

Updated: May 23

Author: Chandril Chattopadhyay, II Year of LL.B(Hons) from Department of Law, The University of Burdwan, West Bengal.


There could be no expression without these rights. Liberty of thought enables liberty of expression. Attainment of the preambled liberties is eternally connected to the liberty of expression.”[1]


Protests have served in history as one of the most important tools of upholding democracy with the aim of consolidating a just and equal society. The Constitutional rights of Indian citizens mandate the exercise of the same in order to form a government that caters to the welfare of the population. The same government must in the best of its abilities look after the aspirations of the common people, failing which they must be answerable to those who had raised them to a pedestal of power. Iain Macleod used the term “Nanny State” in the 3rd December edition of The Spectator. By it, he referred to a state that interferes into the everyday lives of the citizens and often stands against the personal choices of the citizens while not trying to mitigate their causes of concerns that are reflected via these protests. A country with its elected government that tries to gag the voice of the dissenters must be criticized.


There are more than any semantic barriers that set the foot of the protest as a way of venting out the concerns of the contemporary generations. The foundations of our democracy are rested upon the sovereign, socialist and secular principles that have been mentioned in the preamble to the Indian Constitution. As French philosopher and author Albert Camus had said, Albert Camus had rightly said that –

Democracy is not the law of the majority but the protection of the minority”[2]


Thus those that take the streets, even if they are the minutest fraction among the billion Indians, must be heard. In fact, we must never forget how we had achieved this freedom from imperialism of the Britishers through the centuries of protests in the form of Civil Disobedience, Non-Cooperation to Quit India.


The Constitution bestows the Right to freedom of speech and expression, Right to assemble peacefully and without arms and the Right to form associations and unions and to move freely throughout the Indian territory under the Article 19(1) (A), (B), (C) And (D). The part of the Constitution which thus deals with the Fundamental Rights of the citizens of India gives them the equal right to represent their concern before a failing administration.

Every right that is vested with the citizens of a democracy must also come with sizeable restrictions so that the citizens who are dissenting must not transgress the line between protest and violence. Under Article 19(2), the government has the power to impose restrictions on the freedom of speech to protect the sovereignty and integrity of the nation, the state’s security, foreign affairs or in cases of contempt of court, defamation or incitement to an offence.

I'd tear like a wolf

at bureaucracy.

For mandates

my respect but the slightest.”[3]


However recently the Supreme Court has pointed out clear distinctions between the dissent in the pre-independence era and those in a self-fashioned democracy where the cabinet is chosen by the people and thus are representatives of the aspirations of the people.


Also, the marked places of protest like Jantar Mantar in Delhi which are designated as places of activism to avoid any crowding into the civic lines and roads, causing problems in transportation, must be used effectively as has also been reiterated during the Shaheen Bagh Protests and the protest against the passing of the 3 farm bills of 2020.


The activists must be constitutionally aware and just while performing their right to dissent and in certain cases, the Supreme Court has directed the administration to stop protesters from obstructing any space and thus dismantling everyday functioning. Everything in the end must benefit the general public without falling into a narrative trap laid down for political agenda to do or not to do something that is laid down in the Constitution.


There was an aim to break the backbone of the secularism that India enjoys or the federal structure whereby the States were not involved in matters related to agrarian policy in the above-mentioned cases. After all, singing songs of freedom, reading out the Preamble to the Indian Constitution signify the same. Thus, it was the flagging enthusiasm of participation against the discriminatory CAA and NRC that was passed by the Government against which the dissenters raised their voice, peacefully .



The power of protests can never be neglected as several major organizations in the world had risen from the same quarters of protests, including the BJP. In USSR, a major editorial in Pravda on April 5, 1988, written by a member of the politburo spoke about the importance of such protests-


Democratism is impossible without freedom of thought and speech, without the open, broad clash of opinions and without keeping a critical eye on our life.“


It is thus important for the citizens to understand that the spirit of protest must be rekindled every time any authoritarian government tries to suppress it.


Friedrich Engels had also interpreted dialectic materialism[4] which is the idea of duality, the coexistence of the opposite and the formulation of a conscious based on the speculative thought of grasping the conflict of the negatives and the unity of the positives. In a way, the dialogic discourses are an essential part of any protest so that both the parties can hear each other out, without suppressing counter narratives, so that the protests can be made fruitful instead of turning the scope for compromise into a battle of opposing ideas as had happened with our government over time.


The Supreme Court held that “the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg.”[5]


Section 144 of the Cr.PC along with its 7 clauses empowers the magistrate to issue an "order in urgent cases of nuisance or apprehended danger”. If Protest for Rights of the ordinary citizens is apprehended dangers, the constitution itself invalidates the rights mentioned in its Part 3 that guarantees the fundamental rights. Death of Gauri Lankesh, M.M Kalburgi and over 80 RTI activist and protestors , imprisonment of students of the Jawaharlal Nehru for protesting against the draconian and misaligned policies of the and the slapping of UAPA,1967 and Sedition under Section 124A or the hurting of the religious sentiments under Section 153A and 295 of the Indian Penal Code are some examples which show how easy it is to flout constitution norms to protest and slap anyone as “anti-national”.

The rights enshrined in Part 3 of the Constitution have failed in the face of high handedness of the government machinery.The country’s laws say that protests are valid and not illegal in


whatever place they please. Nevertheless, the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place”. [6]


But where is the justice meted out when such protesters are clipped off their rights to show concern? Is it a utopia of legal fundamentalism where only the government is the sole illustrator of the Constitutional Policies and legal framework, often at the cost of silencing those that aim for the welfare of the community? Is it more of catering to the protests and showing the power over the powerless, rather than actually bridging about changes for a better living as the Directive Principles of State Policy, mentioned in Part IV of the Constitution, guides the government to do? The answer is perhaps with all those who criticise the cause of action. And defeat the government’s slap on the face of public opinion, making protests powerless and irrelevant over time in a slowly degrading democracy.


Reference

1.Commentary on the Constitution of India. By D. D. Basu. 3rd Edition, Vol. I. (Calcutta, S. C. Sarkar & Sons, 1955)

2. Indian Polity, By .M. Laxmikanth, 5th Edition (Chennai, McGraw Hill Education(India) Pvt. Ltd., 2017)

3. Kedar Nath Singh v. State of Bihar, (1962)

4. The Unlawful Activities (Prevention), 1967 Act No. 37 of 1967(UAPA)

5.The Indian Penal Code, 1860(IPC)

6. The Code of Criminal Procedure, 1974(Cr.PC)


[1]The Supreme Court in Re-Ramlila Maidan Incident Dt vs Home Secretary and Ors(W.P Crl No. 122 of 2011)

[2]https://www.firstpost.com/world/democracy-is-not-the-law-of-the-majority-but-the-protection-of-the-minority-top-quotes-for-international-day-of-democracy-2020-8818511.html

[3]My Soviet Passport, Vladimir Mayakovsky (trans. Herbert Marshall)

https://www.marxists.org/subject/art/literature/mayakovsky/1929/my-soviet-passport.html

[4] Hegel, G.W.F (1969). Hegel's Science of logic

[5]S. Rangarajan v. Jagjivan Ram (1989) 2 SCC 574

[6]Himat Lal K Shah vs Commissioner of Police, 1973 AIR 87