Tuesday, September 28, 2021
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A Fine Balancing Act

While the right to protest is a fundamental one, it is difficult to determine where such right begins and where it ends. The distinction line between a peaceful protest and one with apprehensions of violence is thin.

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By Parveen Kumar Aggarwal and Pareekshit Bishnoi

Democracy is a form of government, which is of the people, by the people and for the people. Undoubtedly, the term “people” cannot denote “silent people”, but also those with the right to speak and speak not only what is favourable but what is unfavourable or dissenting. Sans this, democracy would just be a sham.

This debate was fuelled recently when Khalid Saifi, arrested under the Unlawful Activities (Prevention) Act (UAPA) in connection with the north-east Delhi riots, told a local court that he has every right to protest. Saifi and several others were booked for the February 2020 riots.

The apex court has made its stand clear about the right to protest in many cases. In Anita Thakur vs State of J&K (2016), the Court acknowledged the right to protest as fundamental right. It observed that “holding peaceful demonstration in order to air their grievances and to see that their voice is heard in the relevant quarters, is the right of the people”. Similarly, in Mazdoor Kisan Shakti Sangathan vs Union of India, (2018), the Court observed that right to protest is a fundamental right and, in a democracy, it is crucial to create an informed citizenry and make a participative democracy wherein the flaws in governance can be discussed and dissented.

However, the question which often arises is how far can this right to protest be exercised. First, and as is generally understood, the right to protest can be exercised only to such an extent as it does not offend the sovereignty and 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 and defamation or incitement to an offence, or in other words, it does not offend the grounds mentioned in Article 19(2) of the Constitution.

However, in reference to this, the words of Justice Rutldege, in Thomas vs Collins, (1944), comes to mind. He observed: “where the individual’s freedom ends and the States’ power begins. Choice on that border, now as always delicate….”. Similar delicacy exists in India as well. It is difficult to determine where the right to protest ends and where the right of the State under Article 19(2) begins. The difficulty is comparatively more because under the Indian Constitution, the State is empowered to impose restrictions on “apprehension of breach of peace” vis-à-vis “clear and present danger” in the US (Mazdoor Kisan (para. 23, 24, 27), Babulal Parate vs. State of Maharashtra and Ors.) Also, the difficulty is further enhanced by the fact that grounds like “public order” or “incitement” are themselves too wide and difficult to be defined precisely. Thus, the line distinguishing peaceful protest and a protest generating apprehensions of violence or public disorder is always thin. Every protest, especially one engaging a large number of people always carries the risk of spillage and the domino effect.

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However, seeing excessiveness in the right to protest only from this standpoint, i.e. the grounds mentioned in Article 19(2) in today’s time, is taking a narrow view. It cannot be disputed that an act, event or policy of any individual, entity or State always has some active protesters, some passive protesters, some active supporters, some passive supporters, and lastly, some, who regardless of their side, suffer on account of the protests. Also, the excessiveness of the protest by the former can also be determined from the standpoint of how far does it compromise or affect the rights of people in latter group mentioned above.

The excessiveness of the protest vis-à-vis the hardship of these people (sufferers) may or may not compel the State to invoke its powers under Article 19(2). Yet, the protests are certainly excessive, at-least, to the extent that it needs to be regulated by the State so as to balance the interests of the two, without diluting either.

The Supreme Court has had the opportunity to delve into such situations and decide the conflict between the fundamental right(s) of one group and the fundamental right(s) of the other group on several occasions. For example, in Mazdoor Kisan (supra), the Court passed certain guiding directions to contain the right of protesters vis-à-vis the rights of residents at and around the place of protest, i.e. Jantar Mantar. The Court held that larger interest will give way to the smaller, but it is the duty of the Court to strike a balance between competing claims of two different interests. The Court observed that the “principle of primacy cannot be given to one right whereby the right of other gets totally extinguished. Total extinction is not balancing. Balancing would mean curtailing one right of one class to some extent so that the right of the other class is also protected”.

On previous occasions, the balancing of rights approach can be traced from the decisions in Jawaharlal Nehru University vs Geeta Kumari, President JNUSU & Ors and Vidyasagar Institute of Mental Health and Neurosciences vs Vidyasagar Hospital Employees.

In the said cases, the Delhi High Court balanced the right of protesters and the rights of the administration and the employees working or interested in working.

Most recently, the Supreme Court in Amit Sahni (Shaheen Bagh, In Re) vs Commissioner of Police & Ors followed a similar approach while holding that “public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone”.

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And more recently, such grievance was raised by some residents of the NCR area against the hardships caused due to the farmer protests in Rakesh Vaishnav vs Union of India, 2020. The Supreme Court recognised the right of farmers to peacefully protest. However, no relief was granted to the petitioners. The matter is pending consideration before the apex court and it will be interesting to see how the Court balances the rights of competing parties.

However, regardless of that, it can safely be said that the boundary of protest should be looked at not only vis-à-vis Article 19(2) but also from the standpoint of how far or in what manner does the protest compromise the rights of other people, i.e. those who reside or work in the area where the protests are happening or travel from such areas, etc. The exercise of balancing is nothing but cutting out the excessiveness. Such an exercise can include limiting the number of protesters, hours of protest, place of protest, non-blocking of public pathways, etc.

It can, therefore, be safely concluded that the position and importance of the right to speech and dissent or peacefully protest in a democratic state like India is well-established and placed on a high pedestal. However, such right is not absolute and is always subject to reasonable restrictions by the State and the rights or interests of the persons adversely affected thereby.

One must remember that smooth running of an elected government is important and elections or right to vote is the most sacrosanct form of dissent or protest.

 —The writers are both Supreme Court advocates

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