RIGHT TO PROTEST AND ITS REASONABLE RESTRICTIONS IN INDIA

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”

– John Milton.

What is “Right to Protest”?

India is a democratic country in which people of the country choose their government by themselves. People are the real rulers of the country. Constitution of India provides that there shall be ‘Rule of Law’ in our country which is protected by providing to its citizens and habitants certain rights. These rights are known as fundamental rights which are irrevocable.

One such fundamental right is the “Right to protest”. Protest means a statement or action expressing disapproval or objection to something. A protest may be of different forms, individual or public demonstration. Thus, the right of expressing disapproval or objection to something, to criticize something without any arbitrary hindrance is known as Right to Protest.

Importance of “Right to Protest”

If people feel that the Government is becoming dictatorial and over-looking their wishes & demands, democracy demands that they should protest. It is a protective right to safeguard other rights so that intended democratic government may not turns into a dictatorship.

Our National father Gandhi Ji stated, “Real Swaraj will come not by acquisition of authorities by a few but acquisition capacity by all to resist autho­rity when opposed”. Moreover he asserts, “Civil disobe­dience is the inherent right of a citizen”. But Gandhi Ji differentiate civil disobedience from criminal disobedience; the latter being violent disobedience.

“Right to Protest” as a part of Right to freedom

The constitution of India does not specifically guarantee a “Right of protest”. However, it is enshrined under right of freedom under article 19 of Constitution of India. The right is provided only to the citizens of India and not to the foreign nationals. It is provided under following provisions of Constitution of India:-

• Article 19(1) (a): The freedom of speech and expression.
• Article 19(1) (b): The right to assemble peaceably and without arms.

Freedom of speech and expression means the right to express one’s own opinions freely by words in oral, writing, printing, picture, video or any other mode. It thus includes the expression and propagation of idea through any communicable medium or visible representations like gesture, signs etc. Freedom of assemble peaceably and without arms means that people have right to gather, assemble or conduct a meeting.

These provisions collectively grant citizens the right to protest peaceably by providing freedom of criticizing authorities and express their dissent in form of public protests or actions.

The Hon’ble Supreme Court in case of Ramlila Maidan Incident v. Home Secretary, Union of India & Ors., stated that, “Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.”

The Universal Declaration of Human Rights, 1948 also states that everyone should have the freedom to express their ideas and opinions and it was recognized as essential fundamental and human right under Article 19 & Article 20.

Reasonable Restrictions on “Right to Protest”

In spite of this crucial right to protest given to the citizens, there are certain restrictions imposed upon this right because unrestricted and absolute freedom would lead to social disorder and public inconvenience. Article 19(2) and 19(3) of the Constitution of India specified some grounds of restrictions upon the right to protest which is inclusive of Right to freedom;

a) Security of the State: Constitution imposed reasonable restriction on the right of freedom in the interest of security of the state. The Hon’ble Supreme Court in Romesh Thapper v. State of Madras had defined the words ‘security of the state’ as serious and aggravated forms of the public order, e.g. rebellion, waging war against the state and not ordinary breaches of public order e.g. unlawful assembly, riot, affray etc.

Undermining state security shall also include incitement of violent crimes like murder; endangering only a part of state territory would be taken as threat to security of the state as whole. The result of the act is immaterial, only an incitement of the act of such extent is sufficient against the security of the state.

b) Friendly Relations with Foreign States: Any kind of protest must not harm the friendly relations of India with the foreign states. It prohibits the maintenance of good relations with a foreign friendly state. The Foreign Relations Act (XII of 1932) impose punishment for libel for Indian citizens against foreign dignitaries.

The foreign state shall not include the commonwealth states including Pakistan. Thus any protest or expression against these states is not barred under Constitution.

a) Public Order: Public order is the state of tranquility which prevails among the member of the political society as a result of internal regulations enforced by the Government. It is similar to public peace, safety and tranquility. It is something more than maintenance of ordinary law and order. Thus communal disturbances and strikes prompted with the sole object of causing unrest among workmen.

In case of Raj Bahadur Gond v. State of Hyderabad, Supreme Court held that mere criticism of government during a protest does not necessarily disturb public order,

b) Decency or Morality: The words ‘decency or morality’ has no fixed meaning and differ from society to society depending upon various variables. Section 292 to 294 of the Indian Penal Code provides the instances of restricting freedom of speech and expression in the interest of decency and morality.

The Hon’ble Supreme Court in case of Ranjit D. Udeshi v. State of Maharashtra, accepted the tests laid down in the English case of R. v. Hicklin which states that ‘whether the tendency of matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences’. Thus any protest which includes any sort of immoral or obscene act such as nudity, pornography etc. would not be permissible.

c) Contempt of Court: There are certain restriction on the freedom of individual including contempt of court. The Contempt of Court Act, 1971 under Section 2 clearly defines ‘Civil contempt’ and ‘Criminal contempt’. The right of protest cannot be sustained by contempt of court.

d) Defamation: A statement which harms a person’s reputation amounts to defamation. In India, defamation is a crime under Section 499 of IPC. Any protest which includes defamation of anyone would be punishable.

e) Incitement to an offence: The word has been defined under General clauses Act as ‘Offence shall mean any act or omission made punishable by any law for the time being in force’. The protest including incitement to commit an offence shall fall under such category subject to facts and circumstances of each case and thus prohibited.

f) Integrity and Sovereignty of India: This ground was added by Constitution (Sixteenth Amendment) Act, 1963. It prohibits everyone to challenge the integrity or sovereignty of India or to propagate cession of any part of India from the Union of India.

g) The protest must be Peaceable and Unarmed: The protest must be non-violent and must not cause any breach of public peace. The protestant must not laced with any arms. Section 141 of the IPC lays down conditions when an assembly of five or more person becomes unlawful.

h) Sedition: Sedition embraces all those practices whether by words, or writing which are calculated to disturb the tranquility of the State and lead ignorant person to subvert the government. In India, Section 124-A of the IPC defines the offence of sedition. The Prevention of Sedition Meeting Act, 1911, prohibits public meeting likely to promote sedition or to cause a disturbance of public tranquility.

Permissions needed to hold a Protest

Since ‘Law and Order’ is a State subject under Constitution, the permissions to organize a protest will differ from state to state. Broadly some permissions include:

• No-Objection Certificate (NOC) from the police. If police thinks that the protest or demonstration will lead to unrest and go against public order, permission can be denied.
• We need to mention all the details of the protest in the petition submitted to the police which must include the grounds for the protest, its date and duration, the number of people expected to participate, and the route that the protestors will follow.
• The documents that must be submitted include identity proof, residence proof, a photograph, and an affidavit.

Conclusion

The ‘Right to Protest’ is a very important fundamental right in Indian democracy. People can peacefully protest, criticize and express disobedience by various means. However, this right is subject to various lawful & reasonable restriction. The court in its various decision recognize the right to protest as ‘essential dimension’ of mankind.

[The author, YOJIT KAUSHIK is a law student pursuing BA LLB from the Institute of Law, Kurukshetra University, Kurukshetra, Haryana.]

References

1. Constitution of India 1950.
2. Lavanya.B, ‘Freedom of Speech and Expression’ (Legal Service India) <http://www.legalserviceindia.com/legal/article-77-freedom-of-speech-and-expression.html> accessed 6 April 2020.
3. J. N. Pandey, The Constitutional Law of India (7th edn, Central law Agency 2009).
4. The Universal Declaration of Human Rights, 1948.
5. The Foreign Relations Act (XII of 1932).
6. Shafina Ali, ‘Essay on Right to Protest and Indian Democracy’ (Preserve Articles) <http://www.preservearticles.com/essay/essay-on-right-to-protest-and-indian-democracy/4993> accessed 6 April 2020.
7. Ramlila Maidan Incident v. Home Secretary, Union of India & Ors. [2012] CriLJ 3516 (SC).
8. Vidya Raja, ‘Citizen Protests in India: Rights, Duties & Permissions Needed’ (The Better India, 18 December, 2019) <https://www.thebetterindia.com/206831/how-to-protest-in-india-constitution-rights-right-fundamental-duties-police-permission-nrc/> accessed 6 April 2020.
9. "Definition of PROTEST". www.merriam-webster.com. accessed 5 April 2020.
10. Romesh Thapper v. State of Madras [1950] AIR 124 (SC).
11. Noor Mohammad v. Rex [1949] AIR 120 (All).
12. Om Parkash v. Emperor [1948] AIR 199 (Nag).
13. Raj Bahadur Gond v. State of Hyderabad [1953] AIR 277 (Hyd).
14. Ranjit D. Udeshi v. State of Maharashtra [1965] AIR 881 (SC).
15. R. v. Hicklin (1868) 3 LR 360 (QB).
16. Constitution of India (Sixteenth Amendment) Act, 1963.
17. The Prevention of Sedition Meeting Act, 1911.
18. Indian Penal Code, 1860.
19. Code of Criminal Procedure, 1993.