“Those who make the peaceful revolution impossible will make the violent revolution inevitable.”
– John F. Kennedy.
The right to protest is a fundamental right made available to the citizens in almost all functional democracies over the world. Because for many nations the democratic form of government was also achieved via protest. The fall of the Tsar, the end of colonial rules, and the removal of monarchy regimes across the world were all possible due to the right to protest exercised by the people of those nations. This right is not absolute in India and is subjected to a lot of restrictions but the common one we hear in news on an everyday basis is Section 144 of CrPC, 1973. There is a constant struggle going on between the right to protest as well as maintenance of public order. So what are the limits of both of these are a matter of consideration?
RIGHT TO PROTEST
“A patriot must always be ready to defend his country against his government.”
– Edward Abbey
It is granted directly under Article 19(1)(b) of the Constitution of India as the right to assemble peacefully without arms. It is also a part of Article 19(1)(a) and of 19(1) (b) of the Constitution of India. In this, the citizens have the right to express their displeasure against any policy of the government, or against any legislative actions or verdict of the judiciary. It can be exercised in the form of peaceful demonstrations, sit-ins, strikes, rallies, and holding meetings. The framers of the Constitution recognized the importance of the same and that’s why it is given as a fundamental right. It enables to ensure the:
- The smooth functioning of a democracy.
- Demanding accountability from the state for their acts or omissions.
- In a democracy it is the people that are supreme, they act as watchdogs over the state.
SECTION 144 OF CrPC, 1973:- It is a legislative tool empowering the executive magistrate of the SDM to pass an order that will make a certain person bound to perform an act or abstain from performing it within the area under their jurisdiction remains in force for a period of 2 months and can be extended up to 6 months by the state government. It aims to suppress the potential violent protest but whether all protests will turn violent is not answered here. Noncompliance with the provisions will empower the legislative authorities to arrest the persons found in breach of the orders. The only problem with the section is that it not only gives wide powers to the authorities but is also very vague. There is no set of conditions prescribed for taking action under it. It solely rests on the discretion of the Executive magistrate or the SDM.
This section permits the internet shutdown in order to stifle protest. In 2021 out of 182 internet shutdowns that took place in about 34 nations, about 106 took place in India. As people get easy and quick access to information through the internet and can strengthen the same via sharing the information. The position changed after the case of:
The court recognized that the internet is an essential part of today’s life and also formed a part of Article 19(1)(a) and 19(1)(g). And impositions of restrictions on the same under Section 144 of the CrPC, 1973 are justified only in exceptional cases. Therefore the court ordered a test of proportionality to be followed before passing any orders concerning the internet shutdown.
CONSTITUTIONAL VALIDITY OF SECTION 144 CrPC, 1973
Many activists challenged the constitutional validity of this provision since it is a colonial tool used by the British to suppress dissent. It is challenged many times before the court as in the cases of:
The court asserting the constitutional validity of this section held that it can be imposed even on the apprehension of danger and the orders must be followed by a proper inquiry conducted by authorities. It must be used in case of emergency and not ordinarily. The court is empowered to review the order and if they found that the material relied on is insufficient they can strike off the order.
Although the constitutional validity of the section is upheld by the Supreme Court, the court also takes strict note of the misuse of this section by stating that repetitive orders passed under the section are a clear abuse of the power conferred under section 144 CrPC, 1973.
SOLUTION TO THIS CONUNDRUM
In order to ensure the exercise of peaceful right to protest as well as maintenance of public order under the Supreme Court has issued the guidelines in several cases, one such is the infamous incident of Ramlila Maidan in the case:
The Supreme Court recognized the right to peaceful protest which can’t be taken away by arbitrary executive or legislative actions.
The Court gave a verdict that ensured the balance between these two as they held that the citizens have the right to assemble peacefully without arms but it must be regulated in such a way so as not to cause any inconvenience to the residents of the vicinity.
The famous Shaheen Bagh case in which the court enumerates the following:
- The citizens have the right to peaceful protest against any law enacted by the government.
- The right to protest doesn’t amount to the right to occupy public spaces and ways for an indefinite amount of time.
- While we recognize the right to protest for one citizen we also recognize the right of other citizens to access public roads.
- For every fundamental right, there is a corresponding duty of balancing it with the rights of commuters.
Although the right to protest is not absolute, to begin with, it is subjected to reasonable restrictions under Article 19(3) but Section 144 caught our attention because of the wide powers conferred to a vague provision. It is meant to be exercised in case of violent protest or its apprehension but in reality, it is used to curb each and every protest. The Supreme Court upheld the validity of this section but the guidelines framed by them if followed properly will avoid any possible misuse of this law. Protest strengthens the democratic setup of the nation and it is not the right but also the duty of every citizen to stand up for their rights and be the voice of the voiceless as said by Elie Wiesel that “We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented.”
Author(s) Name: Daman Preet Kaur (Punjabi university, Patiala)