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

Video-conferencing in courts has shown how justice can be made accessible, affordable and speedy. It should be continued so that courts become “more a service than a place”.

By Parveen Kumar Aggarwal & Pareekshit Bishnoi

The halt in various sectors due to Covid-19 is slowly being eased and a series of “unlockings” are taking place all over India. Until now, the government had issued guidelines for Lockdown 5.0 and Unlock 4.0. But as lockdowns ease, it has revitalised matters, be it leading to a clean environment or optimum utilisation of technology, be it contact tracing, e-meetings of clients, e-filing of cases or e-hearings in courts.

Courts too have adapted to e-hearings in order to keep the doors to justice always open. This has had multiple benefits during this difficult time and should, therefore, be regulated and continued even after the pandemic fades away.

On declaration of the first lockdown in March 2020, the Supreme Court was the first to switch to e-hearings for urgent matters. On March 23, 2020, the Court issued a Standard of Procedure for advocates and litigants to handle urgent matters through video-conferencing. Since then, different High Courts, tribunals and district courts have adapted to e-hearing and disposed of a considerable number of cases through video-conferencing.

Recently, the Supreme Court in Prashant Bhushan & Anr (2020) noted that “[t]he total number of sittings that the various benches had from 23.3.2020 till 4.8.2020 is 879. During this period, the Court has heard 12748 matters. In the said period, this Court has dealt with 686 writ petitions filed under Article 32 of the Constitution of India”.

The adaptation of courts to hearings through video-conferencing has led to several advantages in terms of time, costs and energy saving of both litigants (including witnesses) and lawyers who often travel long distances for hearings in different courts. This burdens them in terms of time and money. Under these circumstances, e-hearings can bring the needed mobility and cut costs.

In 1988, the Law Commission of India noted in its 128th report titled “Cost of Litigation” that these were “back-breaking”. The observations made therein still hold good as witnesses often wish to recuse themselves due to delayed litigation and costs. Similarly, witnesses (including expert-witnesses) travel for rendering evidence in different courts and the costs are either borne by the parties or the government. Order 16, Rule 2, of the Code of Civil Procedure, 1908, and Section 312 of the Code of Criminal Procedure, 1973, illustrate the expenses in summoning witnesses which put a burden on the finances of a party or government. Under these circumstances, video-conferencing offers a cutting-edge solution.

The proponents of physical hearing in courts argue that lack of transparency and infrastructure facilities hinder matters. Pertinently, the Parliamentary Standing Committee on Virtual Courts in its recent interim report, dated Sep­tember 11, 2020, also noted three digital divides access divide, connectivity divide and skill divide. But while the Committee found these factors constraining, they were not restraining the effort for targeted regularisation of virtual hearings.

Of course, multiple difficulties do exist. Open courts are essential for citizens to repose faith in the judicial system. Article 145(4) of the Constitution, Section 327 of the CrPC and Section 153B of the CPC call for access of the public to courts and delivery of judgments in open courts. However, virtual hearings are by no means inherently opaque or in violation of statutory provisions. Instead, it is the opposite of it. As the Supreme Court in its press release in May aptly observed:

Thus, virtual courts hold great potential in giving actual meaning to the terms “open court” and “transparency”. It has been time and again observed that “justice should be speedy, affordable and accessible”. The adaptation of courts to e-hearings will only add to the trust of people in the judicial system. Courts can evolve a mechanism to record proceedings and retain it in their archives and provide copies, if needed. This can help them attain the constitutional and statutory mandate of open courts in the true spirit.

Another concern raised by opponents of virtual court hearings is the low quality of internet access and lack of infrastructure facilities in courts for e-hearings. It is said that online proceedings require a minimum speed of 2mbps/sec and upward, which is available only with 4G users. Further, the Mobile Broadband India Traffic (MBiT) Index formulated by Nokia shows that broadband penetration is still low at 47 percent. However, it was only 27 percent in 2017. This exponential growth shows that this should not be a problem in times to come. Further, to combat infrastructural limitations, with the co-operation of the government, courts and bar councils/associations, more e-booths/e-sevakendras can be set up across the country for needy litigants and advocates. This will ensure affordability and accessibility to justice.

However, given the present circumstances, it would also be correct to state that e-courts cannot be a complete substitute for physical courts. It would, therefore, be ideal to have a hybrid combination continue e-hearings for some category of cases and physical hearings for others. Cases where miscellaneous or short submissions/arguments are to be made can be fixed for e-hearings. Depending on the facts and circumstances of a case, these matters can relate to issues of summoning parties, applications for joinder of parties, applications for amendment of pleadings, for corrections in judgment or decree, for permission to file/extend time for filing reply/rejoinder, etc.

Pertinently, the recent Standing Committee report has suggested transfer of traffic challan cases, petty offences where summons can be issued under Section 206 of the CrPC, dishonouring of cheques, motor accident claim petitions from regular courts to virtual ones. Accordingly, courts can also divide their time between physical hearings and e-hearings or set up special benches for the same. Moreover, to give regard to the background of an advocate, availing of e-courts can be subject to the consent of both the advocates. To narrow down the skill divide, professional services can be engaged, webinars and seminars can be held and as the Parliamentary Committee recommends, computers can be introduced as a course subject.

To record evidence through video-conferencing, due regard should be given to the safeguards enlisted in decisions like Amitabh Bagchi vs Ena Bagchi, Sujay Mitra vs State of West Bengal (2015) and Twentieth Century Fox Film vs Nri Film Production Associates. A wholesome effect of these steps helps achieve an efficient and speedier judicial system.

It would be appropriate to quote Justice PN Bhagwati from National Textile Workers’ Union vs PR Ramakrishnan (1983). While stressing the importance of law and its need to adapt to development in technology, he had observed:

“We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind.”

Laws must evolve and practices must be upgraded if a society has to progress. This becomes more compelling when access to justice is a fundamental right. E-hearings must ensure that even citizens living in remote areas are not deprived of their right to contest their court cases. So e-hearings must be continued in courts even after the pandemic. After all, as the Parliamentary Standing Committee noted, a court “is more a service than a place”.

—The writers are advocates in the Supreme Court