Right to Protest: A Fundamental Right

The right to protest, a cornerstone of democratic societies, plays a crucial role in ensuring that citizens have the ability to hold governments accountable for their actions or inactions. In India, this right is derived from various provisions of the Constitution, particularly from Article 19, which guarantees fundamental freedoms to citizens. While the right to protest is not explicitly mentioned in the Constitution, it has been recognised by the Indian judiciary as an essential aspect of the democratic framework. 

Constitutional Foundation of the Right to Protest

In India, the right to protest finds its foundation primarily in Article 19 of the Constitution, which provides citizens with certain fundamental rights. Though the right to protest is not specifically mentioned, it is considered an extension of the following provisions:

Article 19(1)(a) – Right to Freedom of Speech and Expression

The right to freedom of speech and expression is a fundamental right that allows individuals to express their opinions freely. This provision has been interpreted broadly by the Supreme Court to include the right to protest. The right to protest becomes an essential tool for citizens to express their dissent or concerns about the government’s policies or actions.

Article 19(1)(b) – Right to Form Associations and Unions

This provision guarantees the right to form associations or unions, which is a crucial aspect of collective action. The ability to form associations for political or social purposes enables citizens to come together, organise protests, and collectively challenge government decisions.

Article 19(1)(c) – Right to Peacefully Assemble

The right to assemble peacefully is a vital component of the right to protest. It enables individuals to come together, voice their dissent, and demonstrate against perceived wrongdoings by the government. Peaceful assemblies, such as marches, sit-ins, or rallies, are often employed to create public awareness and put pressure on the government to address the concerns raised.

Together, these provisions ensure that citizens have the legal framework to organise and participate in protests, thereby facilitating their right to challenge government actions and hold it accountable.

The Importance of the Right to Protest

The right to protest is indispensable in a democratic society as it provides a platform for individuals to express their discontent with government policies or decisions. It allows citizens to actively participate in the political process and influence the direction of public policies. The essence of democracy lies in the active participation of its citizens, and the right to protest is a critical mechanism for such engagement.

Protests serve several purposes. They act as a form of expression where citizens can voice their grievances, demand accountability, and demand changes in policies or actions. Protests are also a means of highlighting issues that may otherwise be ignored by mainstream media or government institutions. Furthermore, protests can lead to dialogue between the government and the people, fostering greater transparency and responsiveness.

The Supreme Court has consistently affirmed the importance of the right to protest, recognising that it strengthens democracy. The Court has emphasised that the right to protest should be respected and encouraged, as it allows citizens to hold those in power accountable. Without the right to protest, individuals would be deprived of a crucial tool to challenge unjust laws or policies, which could undermine the democratic fabric of the nation.

Restrictions on the Right to Protest

While the right to protest is a fundamental right, it is not absolute. Article 19(2) of the Indian Constitution imposes reasonable restrictions on the exercise of certain rights, including the right to freedom of speech and expression. These restrictions are necessary to maintain public order, national security, and the overall functioning of society. Some of the key grounds on which restrictions can be imposed are:

• Sovereignty and Integrity of India: Protests that threaten the sovereignty and integrity of the nation or incite violence against the state can be prohibited. The government has the responsibility to protect the integrity of the nation and ensure that protests do not lead to disintegration or harm to national security.
• Security of the State: Protests that jeopardise the security of the state, such as those that encourage terrorism or insurrection, can be restricted. The right to protest cannot be used as a tool to undermine the security of the nation.
• Public Order: Protests that disrupt public order or endanger public safety are subject to regulation. Public order ensures that the rights of other citizens are not adversely affected by disruptive protests. This includes ensuring that protests do not block roads, hinder transportation, or cause inconvenience to the general public.
• Decency or Morality: Protests that involve offensive or immoral behaviour may also be restricted. The government can regulate protests that go against societal norms of decency and morality, especially when they endanger public well-being.
• Contempt of Court: Protests that undermine the dignity of the judicial system or interfere with the functioning of the courts can be curtailed. The right to protest cannot be used to disrespect the judiciary or its orders.
• Defamation: Protests that involve defamatory statements or slander against individuals or organisations can be restricted to prevent harm to reputation and dignity.
• Incitement to Offence: Protests that incite violence or encourage criminal activity can be suppressed. The law recognises that protests cannot be used to provoke unlawful actions.

Balancing the Right to Protest with Other Rights

While the right to protest is important, it must be exercised in a manner that respects the rights of other individuals and maintains public order. The Supreme Court has dealt with cases that highlight the need to balance the right to protest with other fundamental rights, especially the right to life and the right to move freely.

In the Mazdoor Kisan Shakti Sangathan Case (2018), the Supreme Court emphasised the need to balance the interests of protestors with the rights of non-protestors. The case involved a dispute regarding protests at Jantar Mantar in Delhi. The Court observed that while the right to protest is a fundamental right, it must be exercised in a way that does not interfere with the daily lives of citizens, particularly the right of individuals to access public spaces and travel freely.

The Court directed the police to devise a mechanism that would allow peaceful protests while ensuring that these protests did not disrupt public life. The judgement underscored the need for a regulatory framework that would enable protests without causing undue inconvenience to other citizens.

Similarly, in the Shaheen Bagh Case (2020), the Supreme Court recognised the right of citizens to protest peacefully but also ruled that public spaces and roads could not be occupied indefinitely. The Shaheen Bagh protests, which were held against the Citizenship Amendment Act (CAA), led to the blocking of a major road in Delhi for months, causing significant disruption to commuters. The Court held that while citizens had the right to protest, they could not block public roads for extended periods, as this infringed upon the rights of other citizens to use public spaces freely.

The Court also referred to its earlier judgement in the Ramlila Maidan Case (2012), where it stated that the right to assembly and peaceful protest cannot be taken away by arbitrary executive or legislative actions. However, it reiterated that protests must be conducted in a manner that does not violate public order or the rights of others.

Violence and the Right to Protest

It is important to note that while peaceful protests are a fundamental right, violence is not. The Constitution imposes a fundamental duty on citizens to safeguard public property and refrain from violence during protests. Article 51A of the Indian Constitution explicitly states that it is the duty of every citizen to abjure violence and safeguard public property.

The Supreme Court has consistently held that violence during protests is not protected under the right to protest. Violent protests, which result in harm to public property, individuals, or the state, are not covered by the fundamental right to assemble peacefully. In such cases, the authorities are justified in imposing restrictions and taking necessary actions to maintain law and order.

Conclusion

The right to protest is an essential element of a functioning democracy. It allows citizens to express their views, challenge government policies, and hold those in power accountable. While the right to protest is fundamental, it is not absolute and must be exercised within reasonable limits that respect the rights of others and maintain public order. The Indian judiciary has consistently upheld the right to protest, while also recognising the need to balance it with other rights, such as the right to life, the right to freedom of movement, and the need for public order.