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Context: The Supreme Court in its recent verdict balanced the right to protest with the right to movement of the public.
Prelims: Indian Polity and Governance – Constitution, Political System, Panchayati Raj, Public Policy, Rights Issues, etc.
Mains: GS II: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure- Supreme Court Judgement and its future implication on Right to protest.
- The Supreme Court has delivered a judgement on the Shaheen Bagh protest case.
- It was deciding on a batch of petitions for directing clearing of the protest site.
- Mostly elderly Muslim women had organised sit-in protests against the Citizenship (Amendment) Act (CAA), 2019 in the Shaheen Bagh area of the capital from December 2019 to March 2020.
- Shaheen Bagh is a locality in South East Delhi
- The protesters blocked a stretch of the road for several months.
|The questions before the Supreme Court
- Can a public road be blocked for a long time?
- When and where can protests be held?
|Issue with the Shaheen Bagh protest
- Protesters were unwilling to relocate to another site and did not fully realise the ramifications of the Covid-19 pandemic and continued large gatherings in a small place
- The protest seemed typical of the many digitally-fuelled “leaderless” dissent seen in modern times.
|What is Right to Protest?
- It is a fundamental political right of the people that comes directly from Article 19.
- The Right to protest peacefully is enshrined in the Indian Constitution in Article 19(1)(a) guarantees the freedom of speech and expression
- Article 19(1)(b) assures citizens the right to assemble peaceably and without arms.
- However, resorting to violence during the protest is a violation of a key fundamental duty of citizens. Enumerated in Article 51A, the Constitution makes it a fundamental duty of every citizen “to safeguard public property and to abjure violence”.
|Protest in India: Historical Context
- Protest in India has a long and illustrious history. Until 72 years ago India was a colony ruled by Britain.
- The country gained freedom, and its people went from being imperial subjects to free citizens, because of a long series of protests.
- Mahatma Gandhi, who is still considered the father of the Indian nation, taught the people of this country the power of peaceful protest. Those lessons were not forgotten after Independence.
- 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. However, there is more to it. Protesting against injustice is also a moral duty.
- This was the argument made, most influentially in the past 200 years, by the American writer Henry David Thoreau in his celebrated essay On the Duty of Civil Disobedience published in 1849.
|Some famous protest in India
- Nirbhaya Movement, 2012
- The 2012 Delhi gang-rape incident saw one of the angriest reactions from people who were very clear on expressing that they have had enough. After the incident, thousands came out on streets to protest in several parts of the country. The movement also created a stir in social media. Taking the movement into consideration, the government at the centre and various states announced several steps to ensure the safety of women.
- Pro-Jallikattu Protests, Tamil Nadu, 2017
- As the Supreme Court put a ban on the traditional bull-taming sport Jallikattu after years of complaints about animal cruelty by PETA, the ban was not accepted by the people of Tamil Nadu. The protestors said the sport is central to their cultural identity. The protest turned violent when police tried to evict the protestors. Around 2,00,000 people came out on the street near Chennai's Marina beach to show solidarity. On January 23, the Tamil Nadu Government legalised Jallikattu and passed a bill to amend the PCA (Prevention of Cruelty to Animals Act) 1960 Act.
- FTII Agitation, 2015
- When in June 2015, Gajendra Chauhan was appointed the chairman of the Film and Television Institute of India, it was seen as problematic by the students because not only did Chauhan lack the requisite credentials, but he had also been a right-wing hardliner for 20 years. Students went on an indefinite strike protesting against the appointment, with protests in places like Delhi erupting into a clash of the students with the police. Directors Anand Patwardhan, Diwakar Banerjee and more returned their national awards in solidarity with the students of FTII. After more than 150 days of agitation, the students discontinued their protest
- Jan Lokpal Bill: Anti Corruption Movement by Anna Hazare, 2011
- When anti-corruption activist Anna Hazare began a hunger strike at Jantar Mantar in New Delhi on April 5, 2011, the movement led to the resignation of Agriculture Minister Sharad Pawar from the group of ministers that had been charged with reviewing the draft Jan Lokpal bill. The initiative brought together a huge number of people, making it a one-of-its-kind event in decades. The movement was named among the “Top 10 News Stories of 2011” by Time Magazine.
- The Assam movement, 1979-1985
- This was a movement against undocumented immigrants in Assam- a revolution of the indigenous people of the state to protect their rights, their homeland against the illegal migrants who were penetrating into the state for years. The movement, led by All Assam Students Union and the All Assam Gana Sangram Parishad, developed a programme of protests and demonstration to compel the government to identify and expel illegal immigrants
- Anti-reservation protests, 2006
- The 2006 Indian anti-reservation protests were in opposition to the decision of the Union government of India, led by the Congress to implement reservations for the other backward classes (OBCs) in central and private institutes of higher education
- Jadavpur University Protests, 2014
- On September 16, 2014, demonstrations by students in front of the administrative building, demanded an investigation into the molestation of a female student on campus. Students went on a hunger strike, and subsequent police brutality in the early hours of September 17 triggered a wave of protests. It culminated with nearly 100 students refusing to take their degrees during the Convocation and eigies of the VC being burnt. Demonstrations showing solidarity with the students started across India. After four months of continued agitation, in January 2015, the VC Abhijit Chakrabarti resigned from his post.
|Some famous non-violent protest
Gandhi’s Salt March is one of the most well-known silent protests. Here are some other similar ones from around the world.
- The White Rose Resistance (1942–1943)
- Objective: Undermine the Nazi Rule of Germany
- Method of Protest: Distributing leaflets that philosophically challenged the ideas of the Nazis.
- The Montgomery Bus Boycott (1955–1956)
- Objective: Lessen racial segregation and inequality for blacks in the American South
- Method of Protest: Montgomery’s black population refused to use public transportation
- The Tree Sitters of Pureora (1978)
- Objective: Stop deforestation of the Pureora forest in New Zealand
- Method of Protest: Built tree houses, refused to leave them
- The Singing Revolution (1986-1991)
- Objective: Independence from the former Soviet Union for Estonia, Latvia and Lithuania
- Method of Protest: Protesters gathered in the streets where they sang songs of national pride, which had been outlawed by the Soviet occupiers.
|SC Judgement on Shaheen Bagh protest
- The Supreme Court in its judgement balanced the two contrasting rights,
- The right to protest and
- The right to free movement.
- Public spaces and places can’t be occupied indefinitely whether in Shaheen Bagh or elsewhere.
- The administration must keep such spaces free from obstructions. Not wait to fire from court’s shoulder.
- Protest should be at designated places. Authorities should remove protests which are not being staged at designated places
- Dissent and democracy go hand in hand but protests must be carried out in the designated area.
- No person or group of persons can block public places or carriageways to demonstrate or express dissent.
- The SC said the right to peaceful protest is a constitutional right and it has to be respected.
- But that does not mean agitating people should adopt means and modes of protest that was used against colonial rulers during the struggle for independence.
- Right to Protest was a fundamental right, albeit with reasonable restrictions.
|Other SC Judgment on 'Right to Protest'
- Mazdoor Kisan Shakti Sanghatan vs Union Of India :
- Supreme Court (SC) order lifting the ban on protests at Jantar Mantar, imposed by the National Green Tribunal (NGT on The Mazdoor Kisan Shakti Sangathan (MKSS) It was a reaffirmation that “the right to peaceful protest is a cherished fundamental right enshrined in the Constitution”.
- “The SC judgment reiterates that the right to protest is an intrinsic part of the fundamental right to freedom of peaceful assembly. It is now the government’s duty to ensure that these rights are protected,”
- Ramlila Maidan Incident v. Home Secretary, Union Of India & Ors. case :
- Further, Indian courts have reiterated that the right to protest is a fundamental right 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.”
- The Preamble to the Constitution of India promises liberty of thought, expression, belief, faith and worship. Clauses (a) to (c) of Article 19(1) promise:-
- Freedom of speech and expression;
- Freedom to assemble peaceably and without arms; and
- Freedom to form associations or unions;
- These three freedoms are vehicles through which dissent can be expressed. The right to freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree. The right to disagree, the right to dissent and the right to take another point of view would inhere inherently in each and every citizen of the country.
Importance of dissent:
- Dissent is essential in a democracy. If a country has to grow in a holistic manner where not only the economic rights but also the civil rights of the citizen are to be protected, dissent and disagreement have to be permitted, and in fact, should be encouraged.
- It is only if there is discussion, disagreement and dialogue that we can arrive at better ways to run the country.
|Why the right to protest is important in a democracy?
- The right to protest formally involves the exercise of numerous fundamental human rights and is essential for securing all human rights.
- Right to Protests encourages the development of an engaged and informed citizenry.
- They strengthen representative democracy by enabling direct participation in public affairs.
- In an electoral democracy, protest provides an essential voice for minority groups.
- 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.
- Public protests are the hallmark of a free, democratic society, whose logic demands that the voice of the people be heard by those in power and decisions be reached after proper discussion and consultation.
- For this, the right to freedom of expression, association and peaceful assembly are necessary. Any arbitrary restraint on the exercise of such rights-for instance, imposing Section 144- shows the inability of the government to tolerate dissent.
- An unreasonable limitation on protest is an affront to the very people in whose name a government is allowed to temporarily govern.
|Protesting is a Fundamental Right: UN
- UN Human Rights Committee: It is tasked with monitoring how countries implement the International Covenant on Civil and Political Rights (ICCPR) 1976, which under Article 21 guarantees the right to peaceful assembly.
- Fundamental Human Right for People: To gather to celebrate or to air grievances in public and in private spaces, outdoors, indoors and online is a fundamental human right.
- Protesters: Everyone, including children, foreign nationals, women, migrant workers, asylum seekers and refugees, can exercise the right of peaceful assembly.
- Protection: Protesters have the right to wear masks or hoods to cover their face and that Governments should not collect personal data to harass or intimidate participants.
- Role of Journalists and Human Rights Observers: They have the right to monitor and document any assembly, including violent and unlawful ones.
- Government Obligations:
- Governments could not prohibit protests by making “generalised references to public order or public safety, or an unspecified risk of potential violence”.
- Governments cannot block internet networks or close down any website because of their roles in organising or soliciting a peaceful assembly.
- The Committee’s interpretation will be important guidance for judges in national and regional courts around the world, as it now forms part of what is known as ‘soft law’.
- The interpretation is a form of legal advice (not mandatory) from the Committee that monitors the International Covenant on Civil and Political Rights (ICCPR) 1976.
- Indian Scenario:
- India is a state party to the International Covenant on Civil and Political Rights (ICCPR).
- The right to protest, to publicly question and force the government to answer, is a fundamental political right of the people that flows directly from a democratic reading of Article 19 of the Constitution of India.
- Article 19 (1) (a) states that all citizens shall have the right to freedom of speech and expression.
- Article 19 (1) (b) states that all citizens shall have the right to assemble peaceably and without arms.
- However, the State can impose reasonable restrictions on the exercise of the right of assembly on two grounds, namely, sovereignty and integrity of India and public order including the maintenance of traffic in the area concerned.
- The Right of citizens to protest and gather peacefully without arms is a fundamental right in India’s democracy.
- The Right to protest is one of the core principles on which democracy survives and thrives. However, when a protest turns violent or obstructs public movement, as seen in some places in recent protests, it defeats the very purpose of the protest.
- While enjoying the rights, one must adhere to one’s duties and responsibilities in a democratic society.
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