Article: Constitutionality of Right to Protest
Recently the newspapers and news channels are flooded with the news of farmers protesting against the Farmers bill 2020 and marching towards the capital city from various places within the Punjab and Haryana. While some quotes it as a political conspiracy, others categorize it as a real protest to cease the ultimate enactment of the bill thanks to some apparent shortcomings. The protest is taken on a large note and farmers got successful in arranging a gathering with the officials but they weren't the sole one to suffer. It appears that the residents had to also bear lots of trouble.
If we are looking back on Indian history, freedom fighters also use peaceful protests as a tool for India’s struggle for freedom. The nation’s father, Gandhi, also believed in peaceful protest, following the principles of Ahimsa, executing several Dhana, protesting rallies and movements against colonial policies and laws to ensure citizens’ civil rights and ultimately India’s independence from Brits.
So, after analyzing history, it will be said that there's no better thanks to challenge any government policy and laws, protesting peacefully is one in all the simplest ways to specific opinions of individuals and speak out against the govt. when necessary. Too many things are needed to prepare a protest rally like proper planning, money, time and far more, but among them, one in all the foremost important things to stress by protesters is to carry it in accordance with the laws, since the very essence of the protest is lost if any illegal material attached thereto.
Right to Protest : A Fundamental Right
In India, fundamental rights are considered a necessary a part of the essential structure of the constitution, which in any case can't be violated. These fundamental rights protect citizens’ rights and supply remedies within the event of a breach.
Although all rights are vital and play different roles, but among them, it's a crucial right that guarantees different freedoms for citizens Article 19 of the Constitution. It’s only Article 19 that also offers the proper to protest. Although the word protest isn't explicitly mentioned within the fundamental rights of the Indian Constitution, it's implicitly derived from the in-depth reading of Article 19. The correct to a peaceful assembly without arms may be a fundamental right under Article 19(1) (b) of the Constitution.
The right to protest is protected under Article 19(1) (a), Article 19(1) (b) and Article 19(1) (c), which supplies citizens the correct to freedom of expression, the correct to satisfy peacefully without weapons and also the right to create associations or trade unions. These three articles constitute the correct of protest on the premise that a protester can exercise his right to carry a protest against any issue of national or social interest.
The right to freedom of expression and expression means everyone has the correct to freely express his or her opinions through a way like gesture or mouth, etc.
The right to peaceful assembly without weapons, which is to carry public meetings or to shut a procession.
The right to make associations or trade unions meant the correct to make self-regulatory clubs, professional associations or companies within the field of common interest.
Case laws:
In Re: Ramlila Maidan Incident v. home secretary, Union of India & Bears, the SC held that, ‘Citizens have a fundamental right to assembly and peaceful protest that can't be aloof from arbitrary executive or legislative action.’
Maneka Gandhi v. The Union of India, Justice Bhagwati stated that, ‘if democracy means the govt. of the people, on the a part of the people, it’s obvious that each citizen must have the proper to participate within the democratic process & allow him to intelligently exercise his rights to create a choice, a free & general discussion of public issues is completely essential.’
These Supreme Court conclusions reaffirm constitutional guarantees that citizens have the proper to protest whenever the necessity arises. These protests help strengthen Indian democracy and permit space for peaceful adversity, which not only protects the correct of citizens, but also helps fix a loophole. In step with the court’s observations, the correct to protest is a vital element of free democracy so as to guard the interest of citizens.
The SC also referred to an earlier judgment delivered within the case of Himat Lal K. Shah vs. Commissioner of Police, during which a five-judge Constitution bench consisting of Justices SM Sikri, AN Ray, PJ Reddy, KK Mathew and MH Beg struck down the principles framed by the Commissioner of Police for the town of Ahmedabad on basis of Section 33 (1) (o) of the Bombay Police Act of 1951.
The Constitution Bench held that while State could impose only reasonable restrictions, the acceptable authority could impose certain restrictions on the correct to protest publicly roads within the interest of the overall public and more so for the upkeep of public order. The foundations framed by the Commissioner of Police for city of Ahmedabad during this case were sans specific provisions regarding denial of permission to hold out the protest and hence, were held to be outside the constitutionally permissible limits.
Another case cited by the Bench is Mazdoor Kisan Sanghatan vs. Union of India. During this case, the SC directed the police authority to border rules and proper and appropriate guidelines. for limited use of Jantar Mantar area for protests and laid down some factors to be considered while considering whether or to not permit protests, like the likely obstruction to traffic, any likely offences against public tranquillity and damage to public safety etc.
Reasonable restrictions over these fundamental rights:
It should be remembered that each one protests are legal given that they're non-violent and are meted out with appropriate permissions. ‘The basic obligations enshrined within the constitution require respect for the rule of law and to not destroy public property’.
These fundamental rights don't seem to be absolute and are available with reasonable restrictions that impose on them, as if people got complete freedom without having control that might affect society as a full. That right is therefore subject to reasonable restrictions under clause 2 to six of the Indian Constitution, which has a restriction which State law has imposed within the name of maintaining public policy.
The following are those reasonable restrictions-
1. If the protection of the State is in danger;
2. If the friendly relations we share with a neighbouring country are threatened;
3. just in case of violation of public order;
If there's contempt of court;
If India’s sovereignty and integrity are threatened.
In the case of the Railways Board V.Niranjan Singh, a limitation was observed. The restriction indicates the proper to protest/assembly doesn't apply to the correct to someone else’s 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 can't be arbitrary in nature. So citizens must remember and perform their duties while exercising their rights.
The permits that may be required to carry a protest rally vary from state to state, with states empowered to form laws associated with maintaining public order. Usually someone only needs a police permit and a no-objection certificate (NOC) from the police. Police have the ability to not grant permission if they believe the rally is against public order. This could only be done by law. All necessary details of the protest must be included within the petition that somebody submits to the police together with all necessary documents.
Conclusion:
Protesting is not only a fundamental right granted by the Indian Constitution but protesting against injustice is additionally an ethical duty. By now, we are pretty much clear with the fact that the constitution safeguards the existence of Right to protest. In some instances, it is considered to be ‘treasure’ in relation to make sure the right of free speech and peaceful protest and it should be protected in every situation. However, the twist is that these rights don't seem to be absolute in nature and will be subjected to reasonable restrictions as provided under Article 19(2) which is very important within the interest of sovereignty and integrity of the country. The elemental rights don't exist in isolation and there should be a mutual balance between the proper of protestor and commuter.
Name: Avidha Tiwari
Course: BA.LLB
Year: 2nd
College: Bharati Vidyapeeth New Law College, Pune