Exploring the scope of Article 19(1)(b) in light of the recent protests in India

“Democracy thrives on listening, arguing and even dissent.”

Pranab Mukherjee

2020 was a difficult year for us human, with the Coronavirus infecting and killing people, the world going under complete lockdown, crashing economies, violation of migrant labours rights, and many more such disasters registered themselves on the list. But for us Indians this year was also a little more difficult, we were protesting throughout the year for different causes; we entered the year with CAA-NRC protest going on across the country, we end the year with farmers protesting against three new farm legislation; not only these when the world was under lockdown and people around the world were confined in their houses, then also protests were going on in India such as nurses and doctors protesting for non-payment of salaries, government employees protesting against privatization, students protesting against fee hikes, scholarships, and attacks on their institutions. Looking at all these protests we can safely say that year 2020 was the year of protests in India; and, every citizen of the nation should be aware of this right provided by the Constitution of India.

Protest has a long and glorious history in India. India was a colony ruled by Britishers for 72 years ago. Since then, till today, right to peaceful protest or assembly reflects the idea of democracy. After the enactment of the Constitution, Article 19(1) of the Indian Constitution became one of the most important articles that guarantee ‘basic freedom’ for every citizen of India; and, Article 19(1)(b) guarantees all citizens of India to assemble peacefully without arms. Right to protest peacefully gives the right to ask questions and object to legislations and policies of the government in the form of protest, agitations, and public meetings. Protests play a significant role in the civil, political, economic, social, and cultural life of all societies. In every democratic society, the voice of dissent is very crucial. Peaceful protest is a very important tool for tackling the authoritarian regime. In Ram Lila Maidan Incident v. Home Secretary, Union of India [(2012) 5 SCC 1], the Hon’ble Supreme Court had stated that citizens have a fundamental right to assembly and peaceful protest, and held that; 

Freedom of speech, right to assemble and demonstration by holding dharnas and peaceful agitations are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance. The Government has to respect and, in fact, encourage exercise of such rights. It must serve the ends of the constitutional rights rather than to subvert them.

The right to protest is an important element of democracy to bring reforms and advance the development of the country; it’s a constitutional right of citizens, and also their moral duty to protest against injustice. The active exercise of the right to protest make sure the role of the people as sentinel who constantly monitor the actions of the government and make sure fairness in them. In a democratic country when government becomes unresponsive and refused to listen to them it became primus weapon of the people; this establishes the fact that peaceful protest is a fundamental right and the lifeline of every democracy, without this there will be very little or no accountability of the ruling government, and every citizen will have to wait for elections to let out their dissent against it. In Anita Thakur & Ors. v. State of J&K & Ors. [2016 SCC OnLine SC 814] Justice AK Sikri, stated that;

One of the cherished aspects of the political life in India is a tradition to express grievances through direct action or peaceful protest. Organized, non-violent protest was a key weapon in the struggle for independence, and the right to protest is now recognized as a fundamental right in the Constitution.

Recently, we saw unprecedented public protests in India; but the protest which received most support nationwide were those which erupted after enactment of citizen laws and farm laws. In late 2020, thousands of people gathered on the streets to demand from the government that they reconsider the Citizenship (Amendment) Act, 2019; a wave of protest against a new citizenship law started in the cities across India, Protest spread to more than a dozen cities. But, in early 2020 the protest which gathered the most attention was the Shaheen Bagh Protest; it was peaceful protest lead by women. This protest started on December 14, 2019; but gained the momentum in January 2020. With crowds reaching 100,000+; the protest became one of the longest and biggest protest of modern India. The protest site was G D Birla Marg in the national capital, and later many efforts were made to end the protest in the name of clearing the blockade of the road. Initially a bench of Delhi High Court led by the Chief Justice DN Patel refused to entertain the plea of shifting the protestor to another site. Later, Advocate Amit Sahni filed a petition in the Hon’ble Supreme Court; in which the court upheld the right to peaceful protest, but made it clear that public ways and public spaces cannot be occupied and that too indefinitely. The right to protest in a public place should be balanced with the right of the general public to move freely without hindrance. Fundamental rights do not live-in isolation, the right of the protester has to be balanced with the right of the commuter and has to co-exist in mutual respect. 

In Himat Lal K. Shah v. Commissioner of Police [AIR 1973 SC 87], the Hon’ble Supreme Court held that a right to hold meetings on public streets was subject to – (a) the control of the appropriate authority regarding the time and place of the meeting; and (b) considerations of public order. Further, in 2017 Mazdoor Kisan Shakti Sangathan v. Union of India [AIR 2018 SC 3476], the Hon’ble Supreme Court again coined the same principle and held that;

The Court had to consider the regulation of demonstrations at Jantar Mantar in New Delhi. In order to strike a balance between the interests of the residents and the right to protest, it directed the police authorities to formulate a mechanism for the limited use of the space for protests. It observed that each fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with that of their counterparts.

History testifies that peaceful expression of public dissent is the hallmark of a strong democracy. India, the largest and well working democracy, has also been an emphatic bringing forth ground for nurturing a culture which has consolidated the right of citizens to free expression; but as of the all the other rights, right to peaceful protest also come with some reasonable restrictions provide either in the Article 19(2) of Constitution of India or established by the Apex Court. In Railways Board v. Niranjan Singh [AIR 1969 SC 966], Court observed that;

The restriction indicates the right to protest/assembly does not apply to the right to on any property. All reasonable restrictions are imposed on the interests of India’s sovereignty and integrity, state security, friendly relations with foreign countries, public order and cannot be arbitrary in nature. So, citizens must remember and perform their duties while exercising their rights.

The latest addition to the chain of protests is the Farmers’ Protests. Since late 2020 India is seeing massive protest at Delhi borders, held by the farmers on different states; these protests started after the Indian Parliament enacted three new farm laws, i.e., Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020; Farmers Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; Essential Commodities (Amendment) Act, 2020. Farmers are protesting for revocation of these three legislations and to ensure MSP (minimum selling price); as they fear that with the enactment of these laws, they will become captive to corporates.

Peaceful protest can be seen as a fundamental right and lifeline of democracy, and in lack of it’s, the democratic system cannot work appropriately, as a protest is indicating an independent, democratic society where the voice of the people is heard. Therefore, the right to peaceful protest is an important element in a democratic country and it should be properly utilized when required, and instead of limiting this fundamental right, the government should help citizens to exercise their fundamental right

Gaurav Kr. Yadav is a student of BA. LL.B. at Integral University, India. Mohd. Rameez Raza is a student of Law at Integral University, India; he is also a Research Analyst with CNES, JGU

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