RIGHT TO PROTEST

WHY IN NEWS

• The Economic Offences Wing of Bihar police issued a circular to take legal action under cyber-crime law against individuals and organisations for “offensive comments” against the government

RIGHT TO PROTEST: CONSTITUTIONAL PROVISIONS

• The Preamble to the Constitution:
  • It promises liberty of thought, expression, belief, faith and worship
• Article 19:
  • The right to protest is a fundamental political right of the people that flows directly from a democratic reading of Article 19
  • Clauses (a) to (c) of Article 19(1) provides:
    • Freedom of speech and expression;
    • Freedom to assemble peaceably and without arms;
    • Freedom to form associations or unions;
• Article 21:
  • Article 21 of the Constitution gives every citizen the right of basic liberty and security >> thus right to make differing views indirectly flows from this Article

SIGNIFICANCE OF RIGHT TO PROTEST

• Uphold democratic principle:
  • Protest or dissent is essential in a democracy.
  • If a country has to grow in a holistic manner dissent and disagreement have to be permitted, and in fact, should be encouraged.
  • It is only if there is discussion, disagreement and dialogue that we can arrive at better ways to run the country.
• Ensure political participation of masses
  • The very essence of democracy is that every citizen has a right to participate not only in the electoral process but also in the way in which our country is run.
  • This right becomes meaningless if that person cannot criticize the actions of the government.
• Bring inclusive policies
  • Protests in a democratic society will expose the failures of government policies and it gives voice to the under-privileged and marginalised sections
• Prevent majoritarianism
  • Rule of majority is an integral part of democracy but majoritarianism is the antithesis of democracy
  • In a democracy like ours where we have elections based on the first past the post principle, the government in most cases does not represent the majority of the population, and often not even the voting electorate.
  • Therefore protest or dissent will give space for opposition’s views
• Uphold Constitutionalism:
  • The right to dissent is one of the most important rights guaranteed by our Constitution.
  • As long as a person does not break the law or encourage strife, he/she has a right to differ from every other citizen and those in power and propagate what he believes is his belief.
• Allows active citizenship:
  • Right to protest will empower citizens from a mere ‘recipient’ of government service to an ‘agent’ of government.
• Check abuse of power:
  • Dissent/protest is needed to ensure that the rule is carried out by ‘law’ rather than ‘men’. Right to protests will check executive tyranny by allowing space for differing views.
• Protests as a watchdog of government:
  • An elected government may stray from the constitutional course, go against the interests of the people, become unresponsive and refuse to listen.
  • Here pressure against the government must be built by still stronger public methods.
• Ensure overall development of the country:
  • Right to protest is an essential element of democracy to bring about reforms and lead to the development of the country.

SUPREME COURT JUDGEMENTS ON RIGHT TO PROTEST

• Ramlila Maidan Incident v/s Home Secretary, Union of India (2012):
  • The Supreme Court had stated that citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.
• Mazdoor Kisan Shakti Sangathan (MKSS) vs Union of India(2018):
  • In this case SC upheld the fundamental right to assembly and peaceful protest but ordered it to be regulated in such a way that they do not cause inconvenience to residents from Jantar Mantar road or the offices located there.
• Shaheen Bagh Judgement, 2020:
  • The court upheld the right to peaceful protest against a law 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.
• Shreya Singhal case, 2015:
  • Section 66A of IT Act, which dealt with “Punishment for sending offensive messages through communication service, etc.” was struck down by the Supreme Court in 2015

CONCERNS

• Imposition of section 144 of CrPC
  • Government has kept on using various tools available against protests and section 144 of CrPC has been biggest such tool.
  • Section 144 authorises executive magistrates to pass “prohibitory orders” that restrict people from assembling at particular places to prevent breaches of public order, or the triggering of violence.
  • Although law has been enacted to implement the reasonable restrictions, however Section 144 is framed in such broad and vague terms that it can be imposed by the executive anywhere to prevent the expression of dissent through public demonstrations and protests.
• Internet shutdown:
  • Government in the name of maintaining public safety and averting public emergency frequently resort to internet shutdowns.
  • For instances internet was shut-down for 175 days in Kashmir valley after the revocation of Article 370 - longest ever imposed in a democracy, according to Access Now
• Low performance in Democracy index:
  • India slipped 10 places to 51st position in the 2019 Democracy Index's global ranking, according to The Economist Intelligence Unit, which cited "erosion of civil liberties" in the country as the primary cause for the downtrend.
• Social polarisation:
  • Three crucial drivers of increasing polarization in India have been the on-going economic transformation, changes in traditional and social media, and the rise of competitive caste politics.
  • Ethno-religious parties are able to harness the power of each of these drivers >> hence political leaders frequently demonize their opponents and minority groups >> this had also fuelled a disturbing rise in intolerance and violence
• Arbitrary usage of laws:
  • For instance; Section 7 of the Indian Telegraph Act 1855 was arbitrarily used to shutdown internet
• Riots and destruction of public property:
  • In some of the cases protest turns violent and it causes destruction of public property. For instance farmers' march turned violent on Republic Day in Delhi, 2021.

CONCLUSION

• Peaceful protest is a fundamental right and the lifeline of democracy, without which there would be very less accountability left with the ruling government and every citizen has to wait for the election to vent out their anger against it.
• But reasonable restrictions are also very important so that peaceful protests do not turn into violent and lead to loss of lives and property.

PRACTICE QUESTION:

Q. Analyse the significance of right to protests in a democratic society with an elected government?