The right to protest and dissent is an indispensable aspect of the right to freedom of speech and expression and has been accorded very high position taking into account our experience of freedom struggle against the British. However, there has been umpteen instances of right of protest have been confounded with sedition and terrorism. Irrespective of all of this, the recent observation of Delhi High Court while granting bail to three students in the north-east Delhi riots “conspiracy” case has been quite encouraging, in which the court said, “It seems that in its anxiety to suppress dissent, in the mind of the State, the line between the right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction it would be a sad day for democracy.”
Over the years, the Supreme Court has demarcated the line between the right to protest and the Government's authority to suppress the protests or agitations.
In Himat Lal K Shah vs Commissioner of Police, in the year 1973 the Supreme Court keeping in view the public safety and law and order concerns, had barred the citizens to stage a protest by forming unions and associations at "whatever place they please", having said that it left the duty of assigning place of protest to the appropriate government and held, “the government cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place".
The Supreme Court has further held against whimsical and politically motivated government diktats of muzzling the voice of protest in the name of law and order or endangering of public interest; hence in the case of S Rangarajan vs Jagjivan Ram, 1989, the court said, "Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered." It further clarified on what ‘danger’ would mean in the context of protests as, "The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression."
Apart from this, in the case of Re-Ramlila Maidan Incident vs Home Secretary, 2011, in the issue involving the arrest of yoga guru Ramdev Baba following his anti-black money agitation, the court rightly held that the right to freedom of speech and expression is the essence of a democratic system.
Further the court said, "There could be no expression without these rights. Liberty of thought enables liberty of expression. Attainment of the preambled liberties [of thought, expression, belief, faith, and worship] is eternally connected to the liberty of expression." Last year while adjudicating a matter pertaining to the Shaheen Bagh protest over the Citizenship Amendment Act (CAA), in Amit Sahni vs Commissioner of Police case, the Supreme Court held that public places cannot be occupied indefinitely in the pretext of protest and such occupation of public places "is not acceptable and the administration ought to take action to keep the areas clear of encroachment or obstructions".
However, such a view of the court was not anti-‘the right of protest’, but, as it clarified, "Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters."
Wherein the court also said, "We have considered the earlier judicial pronouncements and recorded our opinion that the Constitutional scheme comes with a right to protest and express dissent but with an obligation to have certain duties." Additionally, the court held, "The right to protest cannot be anytime and everywhere.
There may be some spontaneous protests but in case of prolonged dissent or protest, there cannot be continued occupation of the public place." While the court has been quite spontaneous and vocal in support of upholding the right to protest as an extension of right of freedom of speech and expression but it expects the citizens to exercise the right with respect to the boundaries drawn within the same constitutional scheme.
As under Article 51A it is a fundamental duty of the citizens to safeguard public property and abjure violence. It is not difficult to understand that fundamental rights are subject to "reasonable restrictions" and the right to protest is no exception. Therefore, state can act against the protesters in order to protect the sovereignty and integrity of India, the security of the State, friendly relations with foreign countries, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
However, any excess state action to curb any protest without the justifications of reasonable restrictions and just to safeguard political interests is absolutely unacceptable and against the spirit of democracy.
We must not forget despite China surpassing us on many accounts, it has not succeeded in the field of being a democracy and that is precisely why Prime Minister Modi was asked to speak at the G7 Summit and his Chinese counterpart lost the privilege. Besides, Modi in his address to the G7 leaders has termed India as a democratic country and therefore a natural ally of their group. Interestingly, the G7 statement which India supports, reads as follows, “We will harness the power of democracy, freedom, equality, the rule of law and respect for human rights to answer the biggest questions and overcome the greatest challenges.”
The fact is we cannot continue to stand anywhere near the G7 statement as above, if we fail to respect the right to protest and dissent and put a genuine effort to understand the voice of dissent, rather than punishing it.
(The writer is a lawyer and public policy expert and a Distinguished Adjunct Professor of Law and Media Studies at School of Mass Communication, KIIT University. He can be reached at sjyotiranjan3@gmail.com)