People who damaged public properties and were involved in violence in the name of protest in UP should introspect if what they did was right,” PM Modi remarked at the foundation-laying ceremony of Atal Bihari Medical University at Lucknow.
This brings the debate to another completely different subject, that is about, dissent and responsible protest. Dissent is an inevitable part of democratic discourse in any given society and protests make dissent meaningfully conspicuous and audible. Absence of dissent is actually the death of democracy and whatever we witnessed recently in terms of CAA protests has made it quite clear that we are a vibrant and pulsating democracy, irrespective of the merits behind it.
In a democracy, the ultimate key to rule and decide vests with, ‘we the people’, and ‘vox populi, vox dei’ or ‘voice of the people is voice of the God’ has resonated across the nation. Being tolerant and considerate towards dissent, and more particularly of the minority, boosts democracy and is an anti-thesis to majoritarian autocracy or anything undemocratic.
The ugly part of the narrative is when the protest turns into riot, characterised by vandalism of public property, loss of precious human life, tussle between the State and the citizens. It has both societal and economic implications, rather to be precise, has far reaching ramifications, which obstructs growth and development and social harmony. Expression of dissent through protest, that is demonstration, is a globally acceptable norm in civilised societies. In the most recent times, the Fugitive Offenders Amendment Bill led to serious uprising in Hong Kong, as according to the protesters the proposed legislation compromised with the autonomy of the natives of Hong Kong and subjected them to Chinese supremacy, and in Indian context the erstwhile State of Jammu and Kashmir has been a hotbed of protests on various counts. But nevertheless, it is difficult for any civilised society to bear with the brunt of violence associated with protest, since, rioting is a blot and a misconstrued understanding of the constitutional practice of dissent and protest.
Rioting by any stretch of imagination doesn’t qualify to be a constitutionally accepted form of protest and dissent; it creates an atmosphere of terror and social insecurity and is often insinuated by fringe and vested interest groups.
The Constitution sanctions and mandates under Article 19 (1)(a), the right "to assemble peacefully and without arms" but it also casts upon us the fundamental duty under Article 51(A) "to safeguard public property and to abjure violence". This is the kind of constitutional morality which can guide us in the long run to indulge in peaceful, meaningful and effective protests.
While hearing a petition in connection with the police action inside Jamia Milia Islamia University campus over protest against the passage of the Citizenship Amendment Act by Parliament, the Supreme Court warned the lawyers representing the students that "if violence and destruction of public property continues, we will not hear it."
On this Justice SA Bobde, Chief Justice of India, remarked, "Just because they happen to be students, it doesn't mean they can take law and order in their hands; this has to be decided when things cool down. This is not the frame of mind when we can decide anything. Let the rioting stop."
Vandals represent none; riot mongers are devoid of any philosophy whatsoever; it is a herd mentality, it lacks logic and responsible posturing, therefore, it is thoroughly undemocratic. On the other hand, the State at times provokes riot and violent protests owing to the excess application of force mostly stemming out of political insecurities and desire to crush dissent or at times majoritarian arrogance of the Government and sometimes owing to the uncontrolled action of the police forces, like some of the video footages doing rounds in social media, of police vandalism inside library of Jamia Milia Islamia University.
‘Two’ wrongs never make ‘one’ right; force to be applied on the protesters should be directly proportional to the violence caused by the protest movement and it is required to humanely disperse the mob, but not otherwise; but if it is excessive, it should be viewed seriously.
The Prevention of Damage to Public Property Act, 1984 makes damage to public property by an individual punishable with jail term of six months, extendable up to five years and a fine or both. Public property under this legislation is “any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy; any oil installation; any sewage works; any mine or factory; any means of public transportation or of telecommunications, or any building, installation or other property used in connection therewith”. However, the trouble with the law is that it only provides for individual liability for causing damage and it does not impose any form of collective liability on groups which may engage in such actions.
The concern to fix liability for the damages caused to public property was raised during Hardik Patel's Patidar agitation in Gujarat in 2015 and during the Jat quota agitation in Haryana in 2016. In the case of, ‘In Re: Destruction of Public & Private Properties v State of AP and Ors,’ the Supreme Court issued guidelines based on the recommendations of the two expert Committees. In which the Thomas Committee recommended reversing the burden of proof against protesters, and the Nariman Committee said the rioters would be made strictly liable for the damage, and compensation be collected to “make good” the damage.
Dissenters should be far more responsible than the State and the supporters. It is primarily because, the State shouldn’t be allowed to reject dissent without due consideration in the guise of law and order situation, and vested interest groups shouldn’t succeed in the guise of protest to settle their own score. Responsible, self-restrained, peaceful and ideology driven protest is perhaps one of the most significant signs of a healthy democracy.
(The writer is a lawyer and can be reached at sjyotiranjan3@gmail.com)