‘Right to protest and Ethics’
10th Nov, 2020
The judgment of the Supreme Court of India to a petition asking for the Shaheen Bagh protests against CAA
The judgment of the Supreme Court of India to a petition asking for the Shaheen Bagh protests against CAA, to be cleared, on the grounds that the protests inconvenienced several commuters by shutting off an arterial road, assumes crucial significance.
- In a short judgment regarding the petitions against the Shaheen Bagh protests, the Supreme Court (SC) qualified the right to protest, and said that while dissent and democracy go hand-in-hand, protests in public places for an indefinite period of time are unacceptable.
- The SC was, in effect, dealing with the tension between the right to protest of a set of citizens and the right to mobility and convenience of other citizens and has come up with a formulation which respects protests, but within limits.
- The apex court observed it is the duty of the administration to remove such road blockades. Unfortunately no action by administration and hence court’s intervention in the matter.
- A bench comprising Justices SK Kaul, Krishna Murari and Hrishikesh Roy said:
“Public places cannot be occupied indefinitely. Dissent and democracy go hand in hand but protests must be carried out in designated area… Such kind of occupation of public place for protests is not acceptable.”
Shaheen Bagh sit-in protest
- On March 23, the Shaheen Bagh sit-in protest against the citizenship law was cleared by Delhi police after curbs were imposed on assembly and movement of people in wake of the coronavirus pandemic.
- The protest had been on for more than 100 days. It began on December 15 in Southeast Delhi,with at least 300 women at the forefront of it.
- It sparked many similar demonstrations across the country.
- The protest saw several elderly women, some in their 80s, participate daily.
What is the right to protest? Is it a ‘right’ OR ‘moral’ duty too?
- The right to peaceful protest is granted to citizens of India by our Constitution. It is part of the freedom of speech and expression, which is a fundamental right under Article 19(1)(a).
- Article 19(1)(a) guarantees the freedom of speech and expression.
- Article 19(1)(b) states about the right to assemble peaceably and without arms.
- Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms and to freedom of speech and expression and none of these rights are absolute in nature.
- These reasonable restrictions are imposed in the interests of the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
- However, there is more to it. Protesting against injustice is also a moral duty.
- Article 19(1)(3) says this right is subject to “reasonable restrictions” in the interest of public order.
- If the security of the state is in jeopardy
- If the friendly relationship we share with a neighbouring country is at stake
- If public order is disturbed
- If there is contempt of court
- If the sovereignty and integrity of India are threatened
How State handles protest?
- Article 246 of the Constitution places ‘public order’ and ‘police’ under the jurisdiction of the state.
- This gives each state government full legislative and administrative powers over the police. Each state’s police force has two components:
- the civil police
- the armed police
- While the civil police control crime, the armed police are specialised police units that deal with extraordinary law and order situations.
- They are organised in the form of battalions which are used as striking reserves to deal with emergency situations arising in the state.
- Although matters of the police are a state subject, the Constitution empowers the central government to intervene in certain police matters in order to protect the state in times of emergency.
Important SC’s Judgement on protest
- In 1973, a Constitution bench of the apex court had held, in its judgment in the case of Himat Lal K Shah vs Commissioner of Police, Ahmedabad (AIR 1973 SC 87), that the State’s power to regulate public meetings on streets doesn’t extend to closing all the streets or open areas for public meetings, thereby denying the fundamental right which flows from Article 19(1)(a) and (b).
- In the case of Ramlila Maidan Incident v. Home Secretary, Union Of India & Ors., the Supreme Court had stated, “Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.”
- It was in Maneka Gandhi vs. Union of India that Justice Bhagwati had said, “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.”
The Position in International Law
- This all-encompassing ban on protests in public spaces except designated areas doesn’t just go against the court’s own judgments from the past, it also runs contrary to international law.
- A UN Special Rapporteurs’ report on the right to freedom of peaceful assembly notes that while restrictions to the right of peaceful assembly can be made in the interest of national security or public order, these must be lawful, necessary and proportionate to the aim pursued.
- It also notes that these restrictions are to be the exception, not the norm, and, very importantly, that they “must not impair the essence of the right.”
- “To this end, blanket bans, including bans on the exercise of the right entirely or on any exercise of the right in specific places or at particular times, are intrinsically disproportionate, because they preclude consideration of the specific circumstances of each proposed assembly.
International law on ‘right to protest’
- The right of peaceful protest is enshrined in the Universal Declaration of Human Rights, adopted by the United Nations in December 1948.
- In terms of international law, the rights to freedom of association, peaceful assembly and expression are recognised in various treaties, including the International Covenant on Civil and Political Rights.
- Together, these rights constitute the right to protest.
Why SC’s views assume significance?
- The judgment deals a further blow to the right to civil protests in India. Even though the petition itself had been rendered infructuous over the past seven months because of the protestors having voluntarily cleared the protest site due to the Covid pandemic.
- The judgement holds that the occupation of public ways indefinitely anywhere “for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions”.
- It further rules that “demonstrations expressing dissent have to be in designated places alone”. To drive home the point, it expressly posits that “future... protests are subject to the legal position… enunciated above”.
A new era of global protest
- Mass protests increased annually by an average of 11.5 percent from 2009 to 2019 across all regions of the world, with the largest concentration of activity in the Middle East and North Africa and the fastest rate of growth in sub-Saharan Africa.
- Analysis of the underlying drivers of this growth suggests the trend will continue, meaning the number and intensity of global protests is likely to increase.
- Protests have resulted in a broad range of outcomes, ranging from regime change and political accommodation to protracted political violence with many casualties.
- Factors that could increase the rate of protest include-
- slowing global economic growth
- worsening effects of climate change
- foreign meddling in internal politics via disinformation and other tactics
- Russia, China, and Iran are notably active in suppressing protest movements within their own borders.
- Three potential catalyzing factors, which could intensify the trend or make it more manageable, warrant particular attention:
- the use of technology by protestors and governments alike
- the tension between shifting democratic and authoritarian government types
- the need for improved understanding and responsiveness between governments and their citizens.
- The outbreak of the novel coronavirus in early 2020 appears to have temporarily interrupted the surge of protests from 2019 in Hong Kong and Iran, though protest movements from Canada to India continue.
When does protest cross an ethical line?
- Non-violent protests, also known as civil disobedience, have been utilized by some of our greatest historical leaders. Gandhi, Martin Luther King Jr. and Nelson Mandela all lead their followers in peaceful protests including marches and sit-ins.
- However, over the past few years, there have been several instances of protests for legitimate causes, which have turned into violent protests or riots.
Why do some protests turn violent?
- The citizens’ right to protest is a pillar of Indian democracy. While citizens are allowed to peacefully assemble, however, protests and demonstrations sometimes take a violent turn.
- People who are prepared to use violent confrontation can be psychologically differentfrom those who are not.
- People who are prepared to adopt violence are more likely to report feelings of contemptfor political adversaries whom they hold responsible for wrongdoing.
- Debates in India are veering towards the dangerous trend of an exercise in hypocrisy, diversion and counter accusations.
- Political opportunities indirectly facilitate protest mobilization and enhance their chance of success.
- The basic idea is that demonstrations influence the political agenda if they take place under favorable political circumstances.
Impact on day-to-day functioning
- The right of citizens to protest and gather peacefully without arms is a fundamental aspect of India’s democracy.
- While it is also the right of the government to protect civilians from violent protests, certain essential principles need to be kept in mind.
- It must be questioned how much of it is in democratic character and what good one is serving the country, if the protests keeps the work days from going smoothly and disrupts everyday life.
- Sometimes, protests are also a public nuisance to those who do not share the same opinion or just want to go ahead with their everyday routine.
- This situation needs a nuanced response.
Why protest is so important for democracy?
- Contributing to all spheres of life: Protests play an important part in the civil, political, economic, social and cultural life of all societies.
- Positive social change: Historically, protests have often inspired positive social change and the advancement of human rights, and they continue to help define and protect civic space in all parts of the world.
- Advancement of human rights: Protests encourage the development of an engaged and informed citizenry.
- Strengthening democracy: They strengthen representative democracy by enabling direct participation in public affairs.
- Making authorities accountable: They enable individuals and groups to express dissent and grievances, to share views and opinions, to expose flaws in governance and to publicly demand that the authorities and other powerful entities rectify problems and are accountable for their actions.
- Essential for marginalised section: This is especially important for those whose interests are otherwise poorly represented or marginalised.
Powerful protests that shook India
- Nirbhaya Movement- 2012: After, 2012 Delhi Gang Rape thousands of people came out on streets to protest in several parts of the country. Finally, new laws were formed. The government also announced the Nirbhaya Fund for the safety of the girls.
- Chipko Movement – 1973: The Chipko Movement was based on Gandhian principles of non-violence. People, especially women, protested against deforestation by hugging trees. Thousands of people across India came out in support of the green movement.
- Save Silent Valley Movement – 1973: A social movement aimed at the protection of Silent Valley, an evergreen tropical forest in the Palakkad district of Kerala, started in 1973 brought many activists and people together. The controversy surrounding the valley still exists and people are still waiting for the final result.
- Narmada Bachao Andolan – 1985: This Andolan changed the way people looked at the development projects. This protest was to express the views against a large number of dams being constructed near the Narmada river. It brought a large number of Adivasis, farmers, environmentalists, and human rights activists together. The court ordered an immediate stoppage of work at the dam.
- Jan Lokpal Bill, 2011: When anti-corruption activist Anna Hazare began a hunger strike at Jantar Mantar, the whole nation came together and stood by him. This initiative was a one-of-its-kind event in decades.
- The Assam Protests, 1979-1985: This was a movement against undocumented immigrants in Assam. The movement was led by All Assam Students Union and the All Assam Gana Sangram Parishad. They were fighting for the right of indigenous people of the state to protect their rights, their homeland against the illegal migrants. The Assam accord was signed and modified many times.
The role of technology
- Digital technologies offer new opportunities and challenges to protests and they are used both as a crucial medium for enabling protests to take place and a platform for protest.
- Technological advancements have also significantly enhanced the ability of governments to infringe and potentially violate human rights in protests.
In a democracy, the fundamental right of each citizen is ‘sacrosanct’. However, the collective cannot undermine the same. During protest, citizens should always be cognisant that in the name of protest, “the life of a civilised society cannot be allowed to be paralysed”.