Is right to protest an absolute right or not?

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Introduction

Constitution it is Supreme law of our nation. The makers of Constitution while writing it had kept it in their mind that India is a democratic country and thus, the citizens of India should be given the fundamental rights for their well being and such rights should be well protected by the constitution itself.

So it is very well known fact that under the constitution of India, the people of India have given six fundamental rights and no person who is the citizen of India can be deprived of these rights.

All these rights are protected by Indian legislation. The superior courts of the country have writ jurisdiction under the constitution that if any person is deprived of his fundamental rights given under Indian Constitution he can approach to the supreme court or the High Court of India for the protection of his rights. The Superior Courts of India, the supreme courts and high courts have power to look after such matters and it comes under their writ jurisdiction.

The fundamental rights enshrined under Indian Constitution consist of various rights which an Indian citizen can claim. The right to protest is among such rights which are not defined under Indian Constitution but it has their mention in one of the six fundamental rights given by the Indian Constitution. Right to protect play a significant role in protection of other fundamental rights of the people as it is a weapon against the inappropriate actions of the government. This right to protest is not an absolute right and it has some exceptions that are enshrined under Indian Constitution.

What is protest?

The term protest can be defined in many ways. In simplest way the protest may be defined as “the protest is an action by a person or a group of people against the government in a belief that an action, law or the policy implemented by the government is not in the favor of people of India.”

In India, protest is legal when it is done peacefully and without arms. Protest is the best way to remove dictatorship from India and it has been proven over the years that a peaceful protest can make a big change.

What is right to protest?

There is no legislation in India which directly defines the term “right to protest”. But under article 19 of the Indian Constitution it has been provided that every citizen of India has right to freedom of speech and expression and furthermore under this right to freedom of speech and expression it has been provided under article 19 (b)[1] that it’s the right of people of India to assemble peacefully and without arms. The constitution of India does not give an absolute and direct definition of right to protest but it is provided that the people of India have a right to assemble peacefully and without arms that can be further considered as right to protest peacefully and without arms. It is a fundamental right and no person who is the citizen of India can be deprived of this right.

So it can be said that the people of India have the right to protest but it is not an absolute right and it has certain limitation and exceptions which have to be keep in mind while protesting.

Is right to protest is an absolute right or not?

Article 19 (1)(a)[2] give the people of India a right to  freedom of speech and expression and therefore under article 19(1)(b)[3] give the people of India right to assemble peacefully and without arms. These two rights enable the people of India to protest peacefully without arms.

However this right is not absolute and has certain limits like they are not entitled to right to protest when it is infringing the sovereignty and integrity of India, there is a matter of security of state, the friendly relation with foreign states are affected, public order, decency and morality, contempt of court, defamation and incitement to an offence.[4]

As India is a democratic country and the superior law of the country that is the Indian Constitution provides fundamental rights to the people of India so that they can have the freedom to stand against government if any action, policy, law or anything it is implemented is wrong or is not in favor of the people of India. But it is and another reality that all the fundamental rights given by Indian constitution are not absolute rights. One’s fundamental right is another’s duty and vice versa. Every fundamental right under Indian Constitution has certain limitations and exceptions so that no one can take advantage of it.

The fundamental right to protest under article 19 (b) is not an absolute right and has certain limitations and exceptions under article 19(2). Those limitations are;

  • Such actions do not affect or infringe the sovereignty and integrity of India.
  • Such actions will be considered illegal if there is a matter of security of state.
  • It should not affect friendly relation with foreign states.
  • It should not deny or affect any public order
  • Decency and morality should be maintained and not be destroyed.
  • No action is allowed during the protest which can lead to contempt of court.
  • There should not be an incitement to an offence.

These are some exceptions given under Indian Constitution. Furthermore there should not be any kind of violence during the protest. Indian Constitution provides right to protest in which a peaceful protest is allowed without arms. So now it is clear that the fundamental right to protest is not an absolute right but it is protected under Indian Constitution with certain limitations on it another person can be deprived of this right. Such right, if used legally and in a proper way then it can bring a big change.

Necessity of right to protest

Right to protest plays an important role in Indian legal system. Government makes laws, policies and sometimes takes some actions for the public welfare. But sometimes the governmental actions or laws are not complying with public interest and have some errors. Such mistakes can only be prevented if understood by government and protests are the best ways to correct such mistakes of government. Sometimes government can also be wrong with their opinion about laws or a policy they made and implemented so protests plays a vital role in such a case.

Indian history is the proof that a peaceful protest can bring a big change. So the Right to pretest enables the people of India to stand against the government if they think, the laws or policies implemented by government is not in public interest or somehow it is affecting them in a wrong way. The protests are one of the best ways to challenge such actions of government.

India is a democratic country so that its citizens have power to speak or express their views on whatever the government is doing for them. They should be aware of whatever is happening in their country so that they have right to information which enable them to know about Government’s actions, laws and policies and if they think there is some mistake or the particular law, policy or action is inappropriate and not in public interest then they can oppose it by the way of protest which is a fundamental right under Article 19(b) of the Indian Constitution. The six fundamental rights are well protected by Indian constitution so being a part of such rights the right to protest is also protected by Indian constitution. This right to protest prevents the citizens of India from dictatorship.

Noteworthy judgments

Amit Sahni vs. Commissioner of Police (Shaheenbagh judgment)[5]

It was held by the court that public ways and roads are not the places where the protest should take place as it can cause hardship to the general public. It was further started by the 3 judge bench that right to protest is a fundamental right but it should not be used in a manner that it would infringe the rights of other people. It was specified by the court that such legal protest should be carried out in the areas which have been designated for the purpose. Also the court refused to accept the contention of the protesting people as right to protest is a fundamental right.

Anita Thakur &Ors. Vs. State of J & K &Ors.[6]

In this case the Supreme Court laid down that a significant feature of a democracy is the space offered for legitimate dissent. It was clarified by the Supreme Court that right to protest is not an absolute right and it can be restricted on the ground of infringement of the sovereignty and integrity of India and public order and public safety.

 Maneka Gandhi v. The Union of India[7]

In this case, it was  stated that, ‘if democracy means the govt. of the people, on the part of the people, it’s obvious that every citizen must have the right to participate in the democratic process & allow him to intelligently exercise his rights to make a choice, a free & general discussion of public issues is absolutely essential.’

Ramlila Maidan incident v. Home Secretary, Union of India & Bears

It was held by the Supreme Court that the Indian citizens have a fundamental right to assemble and peaceful protest and they can’t be removed from arbitrary executive or legislative action.

Conclusion

Fundamental rights play an important role in the development of a country. In India there are six fundamental rights are provided to its citizens. But these rights are not absolute so that one cannot take advantage of other on the name of such rights. The democratic country India enable its citizen to speak and express their views on whatever law or policy the government bring with it. Right to protest is a weapon of Indian citizens to stand against the inappropriate actions of government. Such rights play a significant role in maintaining the chain between government and general people. A peaceful protest can bring a big change if done properly and strong base. In various judgments it was observed and stated by  the courts that right to protest is a fundamental right and like other fundamental rights under Indian constitution it has certain limits, thus it is not an absolute right. A peaceful protest must be carried out in such a way that it should not be affecting the rights of normal people. After all; such protests are carried out in public interest and should not cause difficulties to them.


[1] The constitution of India, art 19(2)

[2] The constitution of India, art 19(1)(a)

[3] The constitution of India, art 19(1)(b)

[4] The constitution of India, art 19(2)

[5] AIR 2020 SC 3282

[6] AIR 2007 SC 118

[7] AIR 597, 1978 SCR (2) 621

Author: Devshree Dangi

Editor: Kanishka VaishSenior Editor, LexLife India.

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