There needs to be more clarity from the Supreme Court on people’s right to protest
The ongoing farmers’ protest demanding repeal of the three agricultural laws may see the Supreme Court lay down the parameters for people to exercise their right to protest. Justice AM Khanwilkar, hearing a petition of a farmers’ organisation seeking permission to sit on a ‘satyagraha’ at Jantar Mantar in Delhi, asked how can there be a protest when the matter is sub judice. He meant that no reason for protest exists because the court had already stayed the three controversial laws and the Government has also assured that it will not give effect to it. Is the judge implying that people cannot exercise their right to protest when their challenge of the constitutionality of a law is being heard by the court? The second issue is that the protest is against the executive that brought in the farm laws and the demand is for repeal, while the petition is before the judiciary, which is an altogether separate constitutional body. A former Chief Justice of India, Justice SA Bobde, while hearing a PIL for suspending the farmers’ protests, had said: “We clarify that this court will not interfere with the protest in question. Indeed, the right to protest is part of a fundamental right and can, as a matter of fact, be exercised subject to public order.” That the court refused to interfere with the protests when it was hearing a case about the farm protests shows that the issue of sub judice was not in the frame of the court’s thought or reasoning at that time.
Secondly, the court also clarified whether the right to protest was part of a fundamental right. Thirdly, the court clarified that the reasonable restriction on that right is that it should be peaceful. Fourthly, in February 2020, in a case related to Delhi’s Shaheen Bagh protests that lasted quite some time, the Supreme Court said: “…the law is facing constitutional challenge before this court but that by itself will not take away the right to protest of the persons who feel aggrieved by the legislation.” That was the clearest ruling by the court on the sub judice question. It is only now that the matter has been aired by the court in the farmers’ protest case. Since the court wants to frame legal questions on the issue, it is pertinent to note that questioning whether a group wanting the court to check the validity of the farm laws can simultaneously protest on the same issue will lead to the interpretation that the right to protest is mutually exclusive from the right to challenge the constitutionality of a law. While awaiting the court’s indulgence, it must be pointed out that the farmers’ protest is for total repeal of the laws and nothing else. That means the surest way to deal with the farmers’ petition is to subject the constitutionality of the three farm laws to judicial scrutiny.