Analysis: Right to Protest

In a democratic country, the opinion of its citizens matters the most. The democratic government works on the active representation of people where the government is highly accountable for its citizens. In such a democratic country citizens should have active participation in the governance of the country through the representatives elected by them through the election held every five years. In such a scenario for the protection and prevention of the fundamental rights from its abuse by the government and to make representatives work for the betterment of citizens Right to protest is found as an incredible weapon in a democratic country. India is also a democratic country where the right to protest is provided as a fundamental right by the Constitution of India under Article 19(1)(a) and 19(1)(b) with subject to certain reasonable restrictions. In a democratic country like India, citizens have full freedom to protest against an autocratic and unjustified decision made by the government. It is also provided that this power should be used in a fair manner such that it should not harm the peace and tranquility of the country. India experienced various protects from its freedom struggle to present times. It is always stressed that the protest should be peaceful which implies that it should not harm the public property or any or citizen of the country. So we can say that in a democratic country active participation of citizens of the country is also necessary for which the Right to protest can be found as an Incredible weapon for the betterment and safeguard of the democratic principles of the country. But there are also some negative aspects of the Right to protest in a democracy which we will study in this Article.

HOW RIGHT TO PROTEST PROVED AS AN SECRET WEAPON FOR US AND OUR COUNTRY:

India is a democratic country and a democratic country works on the representation of the people and in the democratic country the government is accountable for us.  In a democratic country where the government is solely accountable for its citizens so there at such place having of freedom of speech and expression which includes the right to protest against any unlawful policy of the government or the policy of the government which does not favor its citizens is a bone for the proper implementation of democratic principles in the country and also for the and also for safeguarding the rights of the citizens of the country. Without having such a right we can expect that government and the representatives will be responsible for the citizens of the country and there will also be autocracy in the country. Protest is in vogue in India for many years from freedom struggle to modern times, from obtaining freedom to safeguarding our rights protest is done against the autocratic and unfair decision of the government. The Dandi against unfair salt law of made by the British government, the quit India movement, the revolt of 1857 were some landmark protest or movement by our freedom fighters which led to getting of freedom from colonial rule. In modern times there also many protests by citizens of the country which led the government fairly for its citizens. So we can now say that protest from freedom struggle to till now proved as a secret weapon for us and our country.

CONSTITUTIONAL VALIDITY OF RIGHT TO PROTEST-

The Constitution of India provides the right to protest which is provided under Article 19(1)(a), Article 19(1)(b) of an Indian Constitution. The right to protest is not an absolute right there are certain reasonable restrictions attached to it. The restricted actions are reasonable means the restrictions which were necessary for maintaining peace, tranquility, and unity in the country. The reasonable restrictions were provided under Articles 19(2) and 19(3) of the Indian constitution.

Article 19(1)(a) and Article 19(2) talks about freedom of speech and expression. According to Article 19(1)(a), Freedom of speech and expression includes expressing our views through any medium whether it is video, physical speech, through any written medium, gestures, etc. it can be through any communicable means. It includes freedom to express our ideas related to any matter in the country. Freedom to express our views is the foundation of a democratic country. The purpose of freedom of speech and expression in a democratic country is to help an individual to attain self-fulfillment, to assist in discovery in truth, to strengthen the capacity of an individual to participate in decision making and at last, it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change[1].

In Maneka Gandhi v. Union of India[2]

In this case, it was held that every citizen of India has the right to express his views on public issues and also had the right to take part in the democratic event of the country. It was also held in this case that right to protest is the part protected in Article 19 of the Constitution of India.

Article 19(2) of the Indian Constitution provides the grounds on which the right to freedom of speech and expression can be restricted. It is also provided that the grounds should be reasonable it should not be arbitrary. This clause provides many grounds on which this right can be restricted such as 1.when exercising of such right is serious harm to the sovereignty and integrity of the state so in that case the enjoyment of this right can be restricted on this ground. In Niharendra v. Emperor,[3] it was held that mere criticizing government is no offense unless it is done to erode the respect of government. The decision was overruled by the privy council on the ground that the offense of sedition was not confined to only incitement to violence or disorder. 2. When exercising such right is harm to the security of the state in such condition the enjoyment right under Article 19(1)(a) can be restricted. In Romesh Thapar v. the State of Madras,[4] it was held that speeches or expression of an individual which incite the commission of violent crimes are matters which would erode the security of the state and also held that every public disorder cannot be regarded as a threat to the security of state only serious kind of public disorder can be regarded as a threat to the security of the state. 3. When exercising such is a threat to the friendly relation with the foreign state then, in that case, enjoyment of this right can be restricted. 3. When expression made by a person is such that which shows disobedience towards any judgment made by any court then also the enjoyment of the right under this right can be restricted. 4. another ground on which the enjoyment of the right under this Article can be restricted is when the statement made by an individual is such which injures the reputation of an individual 5. When there is incitement of an offense by an individual in such case also the enjoyment of the right under this Article can be restricted.

So we can say that freedom of speech and expression is not an absolute right as there are some restrictions on which the freedom to use this right can be restricted. In protest freedom of speech, an expression plays an important role for conveying the message of protestors freely to the government without having this right protest cannot be made on the other side reasonable restrictions provided under this Article is good for maintaining security, security, and integrity of the state.

Article 19(1)(b) and Article 19(3) talks about freedom of Assembly.

Article 19(1)(b) of the Indian Constitution guarantees all the citizens of India to assemble peacefully and without arms. This right includes the right to hold meetings and to take out processions. While Article 19(3) is restrictive. Article 19(3) applies reasonable restrictions which were necessary to maintain the security, Integrity, and tranquility of the country.

The right under Article19(1)(b) forms the base for the right to protest as without processions, without gathering in some places, and without holding meeting protest can’t be imagined. The right guaranteed in Article 19(1)(b) is not an absolute right it is restrictive. There are certain restrictions while using the right guaranteed under Article 19(1)(b)of the Indian Constitution. The restrictions were provided under Article 19(3) of the Indian Constitution. The restrictions were-

  1. The processions, gathering, or meeting must be unarmed if the following will be armed that type of gathering is restricted under Article 19(3) of the Indian Constitution. As such type of gathering is harmful to the security of the country.
  2. The violent gathering or processions were prohibited and restricted under Article 19(3) of the Indian Constitution. Indian constitution always allows peaceful gathering or assembly. The violent gathering is harmful to the security, tranquility of the country.

So the restrictions provided are reasonable which were necessary to protect the integrity and peace of the country as the Constitution of India prohibits arbitrary restrictions.

The Indian Penal Code 1860 also restricts unlawful assembly. According to the Indian Penal Code, 1860 unlawful assembly means the assembly of five or more person with common object to[5]

  1. To resist any legal process,
  2. To resist the execution of any law,
  3. To instigate any person to indulge in criminal activity,
  4. To obtain possession of any property by force,
  5.  To overawe the government or any public servant in the exercise of his lawful powers by using force.

Section 144 of the Criminal Procedure Code, 1973 provides the magistrate power to prohibit an assembly, meeting, or procession if there is any risk to public tranquility or if there is a risk to security, peace, integrity, and sovereignty of the country.

BOON AND BANE OF RIGHT TO PROTEST-

India is a Democratic country where the government is elected by the citizens of the country through the election. In such a case to make the representatives and government responsible and accountable for its citizens having of right to protest is a boon for us. Where through exercising this right the citizens of the country can also raise their voice against unfavorable decisions of the government. Without having this right we cannot question the accountability of the government. We observed in many cases in India where this right proved as a boon for us like in the freedom of India from Britishers is only the result of the protest by the freedom fighters against the unjust and unfair decisions of the Britishers. After attaining full freedom from the Britishers and after the formation of the Indian Constitution there were several occasions where this right proved as a boon for us. In a modern world where everyone is for their self motive there, we can’t imagine our life without this right.

On the other hand, there were also some drawbacks or bane of this right. The right some times used by some destructive-minded people for their self motive to disturb the peace and tranquility of the country and also for defaming the ruling party. In the modern world, it is generally observed that with technological advancements with getting access to new social media platforms there is a misuse of this right by circulation fake messages or false narratives for creating a disturbance in the country. Through which people get instigate to protest by getting indulge in violent activity and through which the motive of these criminal-minded people get fulfilled.

CONCLUSION-

The freedom of speech and expression and freedom to form assembly guaranteed by the Indian Constitution forms the basis for the right to protest. Freedom of speech and expression gives the way for the protestors to express their thought freely. Freedom of speech and expression also includes freedom of the press means freedom to express our views freely through using the press as a medium. Through freedom to form assembly, take out processions, and freedom to hold a public meeting the protestors can take out processions freely without any fear against the arbitrary policies of the government. But it is always prescribed that the assembly should always peaceful. These rights were not absolute right these rights are restrictive as to maintain peace, security, and tranquility in the country there were certain restrictions imposed with the enjoyment of these rights. It is always stated that the assembly must be peaceful and should be without arms. The Indian Penal Code also in section 141 states that when the common object of the people forming assembly is to resist the legal process, commit any mischief, is to obtain possession of any property by force, is to compel any person to indulge in any criminal activity, is to overawe government or any public servant in the exercise of his lawful powers comes under the category of unlawful assembly and such type of assembly of persons should be restricted any punishable. The Criminal Procedure Code, 1973 also provides magistrate power under section 144 to prohibits an assembly of persons which is destructive.

In a modern era with the technological advancement and with the more and excess to social media platforms some destructive mind people or some criminally minded people by using social media as a medium trying to circulate such narrative between people which instigates them to protest against the government and through which the aim of the criminally minded people to create destruction in the country gets fulfilled which government should try to overcome by establishing a mechanism by which every false narrative and fake news resides far from the reach of the innocent people.

So we can say that right to protest is a fundamental right guaranteed by the Constitution of India. On the other hand, we can also say that the Right to protest is an incredible weapon for the citizens of a democratic country as it provides freedom to the citizens to fight for their rights also provides power to the citizens of the country to compel the government to work for the betterment of its citizens in the country. Without having such right there is always chaos in the country and citizens of that country doesn’t feel happy as they are not free to express their opinions and as they are not free to compel the government to fulfill their demands and it is also observed that in such scenario government sometimes adopt monarchic attitude as there were no one to question them. Constitution of the Every country should guarantee or should provide this right for the fair working of the democracy in the country and also for check and balance in the country. At last, it is also needed that citizens should also take care of their duties such as maintaining the peace and tranquility of the country while exercising this right. Article 51-A which talks about fundamental duties also states that it is a fundamental duty of every citizen of the country to protect public property, to uphold and protect sovereignty, unity, and integrity of the country, to promote harmony and brotherhood among all the people of the Country and also to avoid violence during the protest.

Author: Kaushal Kasliwal.


[1] DR. J.N PANDEY, Constitutional law of India 198-199 (Central Law Agency, Allahabad, 55th edn., 2018).

[2] AIR 597 SC 1978.

[3] AIR 1942 FC 22.

[4]  AIR 1950 SC 124.

[5] The Indian Penal Code, 1860 (Act 45 of 1860), s.141.

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