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On the 15th of December 2019, during protests taking place at Jamia Millia Islamia in New Delhi, the Delhi police illegally entered the campus equipped with riot gear and attacked innocent and unarmed students who were peacefully protesting against the Citizenship Amendment Act, on the grounds that it seeks to discriminate against Muslims while granting Indian citizenship and is contrary to the values of equality and secularism that are enshrined in the Constitution.
This disheartening news was accompanied by the knowledge that the Uttar Pradesh Government had imposed a similar siege, curfew and ban on internet services at the Aligarh Muslim University, which caused a delay in communication of the events occurring at AMU.
However, soon the news was confirmed; many students had been injured by police firing and illegally detained. In both JMU and AMU, the police had resorted to brutality and cruelty against the students by using tear gas, lathis, rubber bullets etc. and indulged in baseless and violent beatings of the students.
These events have caused nationwide concern for the students and have spurred questions regarding the value of freedom of expression in the country and worry that democracy has been exchanged for cruelty and oppression.
The question that arises is this: whether or not, the citizens of India have the right to protest against the government decisions and if they do, what are the constitutional provisions regarding this right?
Right to Protest under the Constitution:
Article 19(1) of the Indian Constitution guarantees certain fundamental rights to the citizens, while also intending to regulate them and give way to legitimate exercise of the private rights and protect these rights against the State action. Article 19(1)(b) states that “All citizens shall have right-to assemble peacefully and without arms”.
Through various cases brought to light, the Supreme Court has provided some clarifications on how precisely freedom of expression operates in practicality. In the case of Ramlila Maidan Incident v. Home Secretary, Union of India & Ors, the Court stated that the right to peaceful protest and assembly is a fundamental right of citizens and it cannot be diluted or eliminated through the use of arbitrary legislative or executive action.
Previously, in the case of Maneka Gandhi v. Union of India, Justice Bhagwati had stated: “If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is absolutely essential.”
In Kishori Mohan v. State of West Bengal, the Court took the time to distinguish between several key concepts such as law and order, state security and public order. To disturb public order is to disrupt and impact public tranquility and peace.
However, such a statement could be interpreted quite broadly and vaguely. The Supreme Court stated that merely criticizing the government did not amount to a disturbance of public order.
Under the conditions laid out by Article 19(2), (3) and (4), reasonable restrictions can be placed upon protests, meaning that it is not an absolute right to express one’s opinions and thoughts in any manner that one pleases. Additionally, protests that are deemed to be of a violent, riotous and disorderly nature are not protected by clause (1).
The reasonable restrictions can be imposed on the grounds of (i) interest of the sovereignty and integrity of India, (ii) the security of the State, (iii) friendly relations with the foreign States, (iv) public order, (v) decency or morality, or (vi) in relation to the contempt of Court, defamation or incitement to an offence.
These “reasonable restrictions” strike a balance between the freedom guaranteed by the Constitution and the social control necessary. However, the limitation should, in no way, be arbitrary, of an excessive nature or beyond what is required in the interest of the public.
When is the protest not peaceful?
Any protest which is harming the integrity and sovereignty of our country or disrupting public order or inciting rage or war or is accompanied by harmful weapons/arms, including lathis, sharp-edged metal objects and firearms (even if such arms have been legally obtained) is not peaceful.
The State has the administrative power to impose restrictions on the personal liberties of the individuals in cases where such a need arises.
According to Section 144 of CrPC, if the District Magistrate, a Sub- divisional Magistrate or any other Executive Magistrate, specially empowered by the State Government in this behalf, finds the situation at a specified place presenting the potential to create disturbance in law and order and is a cause of danger to peace and tranquility in that area, restrictions can be imposed.
However, as a matter of law, the restriction can be imposed for two months and can be revoked by the Government if the situation so demands. It can also be extended beyond two months, by notification, but not more than six months, for preventing danger to human life, health or safety or for preventing a riot.
In judging the “reasonableness” of a restriction, the Magistrate must look at it not only from the point of view of the citizen but also the problem before the Legislature. Violation of any order under Section 144 is penalized with punishment up to three years in jail.
Additionally, state governments can formulate and enact separate laws for the maintenance of public order and utilize such laws to regulate the right to protest.
Duties accompanied in protests:
Rights, liability and equality are closed interlinked to each other. If the citizens are enjoying the fundamental rights, they also have a responsibility towards their duties so that the society can maintain a balance of equality.
The Fundamental Duties, mentioned in Article 51-A, are basic and moral obligations on the citizens. However, they are not legally enforceable.
Thus, while assembling to protest, it is the duty of the protestors to safeguard public property and to stay away from violence, to promote harmony and the spirit of common brotherhood. Further, the assembly should be peaceful and without arms and not be a provocation to wage war or create disturbance.
Things to keep in mind while protesting:
The relevant restrictions under Article 19 of the Constitution are extremely important to keep in mind while protesting as they outline the conditions that cause peaceful assembly to become illegal. Moreover, it should also be remembered that while the Constitution might outline some restriction and rules, each particular state will differ in its treatment of protests as Law and Order is subject to the direction of the individual state.
Thus, local laws should be complied with. It is also extremely important that the citizens are vigilant about their rights, as detention of protestors is a common route taken by authorities to subdue protesters.
Citizens should demand fair and justiciable treatment through the right to legal counsel, request copies of warrants and as well as details regarding bail. Women should invoke the law that allows their arrest only by female officers. Memos of arrest should not be signed unknowingly and the citizen has the right to determine its accuracy.
The citizen has the right to choose a person who must be informed by the police in case of arrest or detention within 8-12 hours, along with a right to request examination by a doctor if injured. Citizens should also know they have the right to file complaints if they have faced unnecessary restraint and force.
Additionally, it is very important to keep in mind is that the police need to produce the citizen before a magistrate within 24 hours of arrest, and are not permitted to simply detain the protester for as long as they wish to. Citizens have rights and the law and the police have a duty to remember and respect such rights.
For rights and liberty both, the control of state or the intervention by government is essential. Here, two points must be duly considered.
Firstly, state intervention does not mean the state will intervene at every turn and twist of individual life. If the authority decides to control the behavior of every individual or regulate every trifling matter, it will make life unbearable and lead to loss of liberty.
It will also lead to non-implementation of rights. How much intervention by state will be conducive for rights duties and liberties to flourish depends on manifold factors.
Secondly, the incidence of state action should be unbiased. Partiality will, undoubtedly, violate the basic norms of equality. Partiality means the abrogation of rule of law.
Our practical experience teaches us a different lesson; no state authority is hundred percent impartial. It is still suggested that the state should try to be impartial as far as possible and not target only certain sections of society.
RIn conclusion, it is very important to remember that peaceful assembly and protest is a fundamental right of citizens that is enshrined within the constitution and is protected by the law. If citizens adhere to the letter and spirit of the law, it is not they who are to be persecuted but rather, the oppressor that seeks to eliminate freedom of expression should be restricted from doing so.
It is also important for citizens and protesters to remember the value of peaceful assembly in a democratic process. Peaceful protest is not only encouraged and permitted by the law, but certain situations almost demand its use in order to carry the voices of the people to those in the government.
Authors: Ruthika Reddy from NALSAR University of Law and Payal Dey from Calcutta University.
Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.