FREEDOM TO ASSEMBLE VIS-A-VIS RIGHT TO PROTEST: A STUDY BY - DEEPSHIKHA RANJAN
“FREEDOM TO ASSEMBLE
VIS-A-VIS RIGHT TO PROTEST: A STUDY”
AUTHORED BY - DEEPSHIKHA RANJAN
Abstract
A country is not able to function properly if
its citizens are neither disturbed nor subject to the arbitrary policies of its
government. Citizens' rights and freedoms must be protected by law. The
Constitution of India grants different rights to the citizens of India, which
are called fundamental rights to protect the interests of citizens. This is
because the rules and regulations, the legal framework, are made for the
well-being of citizens and to make a civilized society for the citizen. Citizens
therefore have the right to oppose, criticize and voice their concerns to the
government, which can be done by peacefully protesting government actions,
policies, or legislation.
I.
Introduction
Article 19
of our constitution talks about two types of rights. On one hand it gives the
citizen the following rights-
i.
freedom of
speech and expression
ii.
Freedom to
assemble peacefully and without arms
iii.
Freedom to form
associations and unions
iv.
Freedom to move
freely throughout the territory of India
v.
Freedom to
reside and settle in any part of the territory of India
vi.
Freedom to
practice any profession or carry on any occupation trade or business
(These right under article 19 is available only to
the citizens.)
while on the other hand it gives the state the power
of restrictions to curtail the rights given to the citizen under Article 19 (1)
in the interest of sovereignty and integrity of nation, its security and
friendly relations with other countries, public order, decency and in relation
to defamation, contempt of court, incitement to an offence etc.
But before we dive into what these rights and
restrictions are, let us know briefly about the background of article 19.
Our country, India, was under the colonial rule of
Britain for more than over two hundred years before the constitution was
drafted. During that time of British raj in India the citizen of our country
did not have any fundamental rights. Therefore, while making of the
Constitution of India in the constitutional debate of article 19, there were a
number of things to be discussed like what rights should be given under article
19 and what not. During discussion in the constituent assembly H.V Kamath (the
then member of lower house of the parliament) proposed that like US citizen,
Indian citizens should also be given the right to bear arms which was also
supported by Maulana Hasrat Mohani. But B.R Ambedkar opposed the idea of
including right to bear arms in the constitution of India. Ultimately this idea
of Kamath got rejected by the Assembly and this right was not included in the
constitution.
If we look back to the period of Emergency
in India which was declared under the rule of Indira Gandhi, we will come to
know how the rights were curtailed by the government arbitrarily. On 26th June
1975, Indira Gandhi declared Internal Emergency in India and this period is
said to be the darkest period of a democracy of our country since independence.
During 1971 newspapers were the only medium through which mass communications were
done or made possible and the government made a rule that they cannot publish
any political or domestic news without the prior permission of the government.
Now let us deal with the current position of Article
19 of the Indian Constitution, while dealing with this article we need to focus
on two important features of this article, that is, this Article is only
available to the citizens and it can be exercised only and only against the
state. This article can further be divided into two categories the first
category being article 19 clause (1) which gives the citizens six types of
freedom to enjoy various liberties and article 19 clause (2) which gives rights
to the state to formulate various reasonable restrictions so that nobody takes
undue advantage of the freedom given under article 19(1).
NOTE: Article 19 is also known as the backbone of Part
III of the Constitution of India.
Here we are dealing with article 19 clause (1)
subclause (b) that is Freedom to Assemble Peacefully without Arms. Every
citizen has a right to assemble peacefully and without arms under this article.
This article is regulated by Article 19(3), which lays down that state has
power to curtail rights of citizen to assemble in case of violation of SIP
where-
S stands for Sovereignty of India
I stands for Integrity of India, and
P stands for Public order
An assembly becomes unlawful when any of these five
acts given below is committed-
1.
obstructing any
legal process
2.
doing criminal trespass
3.
using criminal
force against public officer
4.
using criminal
force against any person to make him do anything and lawful forcefully
5.
taking
possession over someone else's property
Any of the given acts if committed by the assembly,
can make it an unlawful assembly and as soon as the police authority and gets
the knowledge of such unlawful assembly it will ask the assembly to disperse
under section 129 of
the CrPC and if the assembly refuses to disperse then they would be committing
an offence under section 151
of IPC. This is the reason why when any rally or procession has to be carried
out by any political party or otherwise then they are required to take prior
permission or permit from the police mentioning objective of their procession.
The right to freedom of assembly is a very valued
and precious right, it is an absolutely necessary right for any individual
person, group or a society. This right helps in preserving the democracy of a
country. However, we can see that even the constitution of our country as well
as Human Rights law have put some reasonable restrictions and limits on this
right which makes this right very constrained. The type of restrictions which
the government put on the freedom of assembly are like taking permits, bans,
putting conditions and restrictions in the manner of assembly, restrictions
regarding place of the assembly and in fact some restrictions as to freedom of
speech even can also be inflicted upon, within the framework of right to
assembly.
No doubt that gathering of people does bear the risk
of invading the peace and harmony of the society. It can go beyond the range or
limits of field or what is morally and socially acceptable. It can even disturb
the normalcy and political, religious and psychological status quo. But nevertheless, all the revolution starts
with an assembly only. People participating in an assembly have both fear and
hope they have lived their past but they want to change their future. The
protests may look like people against the government or a war between people of
minority with majority. "it threatens but does not kill." But limits have
to be drawn even on such activity. Article 19 of Constitution of India is one
of the very significant right guaranteed to citizen which also forms part of
the basic freedom. However, this is also subjected to the following
restrictions, they are-
i.
that the
assembly formed must be peaceful and harmonious,
ii.
no arms should
be used and it should not threaten the safety of the society as a whole, and
apart from these conditions reasonable restrictions
are also imposed by article 19 clause 3 of the constitution on the freedom of
assembly. The government itself is also not free from such restrictions since
the procession taken out by them should not be violent in nature and they must
not breach the public peace. A procession which is disruptive or riotous in
nature will not be protected under 19(1)(b).
Q 1. Why these restrictions are so important and
needed?
The answer to this question is that these
restrictions help in protecting the interest of sovereignty and integrity of
India and it also maintains the public order. Apart from Article 19(1)(b),
section 144 of the Code of Criminal Procedure also talks about unlawful
assemblies. The government is empowered under section 144 to declare an
assembly as unlawful consisting of four or more than four people in certain
cases where the objective of such group is to stop the government from executing
law or legal process, or to commit any kind of criminal trespass or mischief or
even obtaining the property which belongs to someone else forcefully etc.
Q 2. The next question that arises is why do people
need to protest or carry on any procession?
By way of a peaceful protest people can express
their disapproval or raise objection to any action taken by the government or
any policy made by them. Mostly, a protest is taken out against any political
issue and people want their views and demand to be heard by the government by
way of it.
Protest helps in influencing other people and
seeking support from them.
Protests also helps the organization to interrogate
the government and question their action. It helps in in receiving a systematic
answer to their questions. With the help of a protest a government can also
identify loopholes in their policy making which ultimately leads them to
improve their work. A well democratic country, like India, should always be
open to criticism and protest is a way by which people can criticize the
government. People express their feelings and raise voices on any matter which
is of social interest or in the interest of National welfare.
II.
Power of state
to restrict the right to protest-
The constitution gives the state the power to
regulate the rights available to the citizen. But mere written words can't
help, it is the spirit of the law that helps more in a democratic society like
ours. In recent times we have seen arbitrary actions taken against the peaceful
protesters, so in a way, it can be said that criticism against the government
or their policies is uncalled for.
The misuse of some provisions of CrPC and IPC also
affects the peaceful protest or assembly of people. For example, section 144 of
the CRPC restricts rallies and meetings. The arbitrary use of provisions of IPC
in order to arrest the peaceful protesters even when there is no danger to
public order for safety has also been noticed. Therefore, it is suggested that
those power should be used sparingly only. No sweeping power is granted to the
state to infringe the citizen’s right of freedom to assemble either by the
constitution or by any other law.
In the case of, ‘Re-Ramleela
Maidan incident,
the Supreme Court observed that it must be kept in mind that section 144 of
CrPC is attracted only in the situation of emergency, such power can be
exercised for the purpose of maintaining public order only. But the question
arises as to what constitutes public order.
Further in the case of ‘Romesh Thapar vs State of
Madras
(1950)’, the Supreme Court laid down that the constitution needs to draw a
boundary between public order and tranquillity. Because, a lack of public order
may attack the security of state whereas a mere beach of peace, which is not of
aggravated degree is not of much significance.
herefore, there needs to be a balancing of interest
which should be applied very carefully.
like any other rights freedom to assembly is also not absolute in nature and
state exercises some reasonable restrictions over them too. In the case of ‘Himmatlal
K Shah vs Commissioner of police Ahmedabad and another
(1973)’, the supreme court observed the following-
"......It
is not surprising that the Constitution makers conferred a fundamental right on
all citizens 'to assemble peaceably and without arms.’ While prior to the
coming into force of the Constitution the right to assemble could have been
abridged or taken away by law, now that cannot be done except by imposing
reasonable restrictions within Article 19(3)...”.
while denying a person the permission to hold public
meeting only on the ground that under similar instance where the permission was
granted, the public ended up indulging into riots which caused breach of peace
and harmony.
But in ‘Maneka Gandhi VS union of India (1978)’,
the Supreme Court stated that the test of reasonableness should be fair, just,
right and not arbitrary. It should not be fanciful and oppressive.
Therefore, by summing up it can be said that by affecting security of some does
not constitutes a breach of public order, by merely perceiving a challenge to
law and order cannot be equated with threat to public order as well. And these
should not be used to justify the restrictions. In the case of ‘Ram Manohar
Lohia vs State of Bihar (1966)’, the court observed that any act which attacks
the law and order may not necessarily attack public order also.
III.
Case laws on
Right to Protest
i.
Re Ramleela
Maidan incident vs Home Secretary and others (2012)
Facts:
On June 4th and 5th of 2011, the supreme
court had given a landmark judgement in Ramleela maidan case. In this case a
protest was being carried out by Baba Ramdev and his adherents in the Ramlila maidan
of Delhi. The protest was against the matter of corruption and black money. They
had raised the question that government had failed to curb the peril which has
arisen due to black money and corruption in the country. Late at night on the
same day the policemen either independently or with the consultation of
ministry of home affairs evicted all the people forcibly who was sleeping in
the premise of Ramlila Maidan.
Judgement:
The supreme court held that that the protest was
peaceful. It also held that the right to assemble peacefully and hold protest without
arms is a constitutional right and it forms the basic feature of a democratic
state. On one hand in democracy, people are given the right to speak out loudly
against the policies and activities of the government which they think is
unreasonable and in order to do so they express their opinion and show
disapproval they can hold peaceful protests. Whereas, on the other hand state
is bound to respect and encourage such exercise of constitutional rights
instead of forbidding it.
However, this is not being done so. Recently,
political powers have dissipated the power given to police authorities in a
very capricious and whimsical manner. They use these powers to stop people from
exercising the constitutional rights guaranteed to them by the constitution. In
this case it was also held that the action taken by the police was an abuse of
power and improper. Thus, the restriction imposed by the state was unjustified
and it manifested the vigour of the state and nothing more.
Amit
sahni vs commissioner of police and others
Facts:
On 12th December 2019 the Citizen Amendment Act was
passed. This amendment excluded Muslims from the grant of citizenship, due to
which hundreds of protests were organised. The initiation of the protest took
place from two universities in New Delhi and later on took a bigger shape at
Shaheen Bagh, New Delhi. The protestors were challenging the legality of the
citizenship amendment act. Such protest against CAA was being carried out in
different parts of the country yet the Supreme Court did not allow any stay on
such legislation.
Different strategies were being applied by the
political parties to uproot these protests, like inciting a group or class of
people to attack the protestors. The incidents were seen where youth was seeing
firing at protestors while the police kept resting on their oars and watching
inactively.
Even the government did not take any fruitful initiative
to resolve their issues peacefully. Later on, police blocked clear side of the
road of Shaheen Bagh to show that the inconvenience caused to people was very
was excessive.
This case was appealed in the SC by advocate Amit
Sahni against the order passed by the HC. It was decided by a three judges
bench comprising of justice Sanjay Kishan Kaul, justice Aniruddha Bose and
justice Krishna Murari.
Jusgement:
The supreme court held that the right to protest in
public places is not an absolute right and such places cannot be occupied for
an indefinite period of time because it may cause inconvenience to general
public at large. It is the duty of the authority to make sure that occupation
of such public places by the protesters has been removed. Court orders may also
be sought in order to remove search occupancy. The court also said that even
though the right to dissent and democracy go hand-in-hand but protest must be
carried out in a designated place only.
This decision can be seen in a sharp contrast with
many other previous decisions by the Supreme Court where it had wholeheartedly
protected the rights of citizen of freedom of peaceful assembly under article
19. However, in this case the decision was held in the favour of Amit Sahni. He
had contended that protestors opposing Citizenship Amendment Act are causing
inconvenience to other citizen by blocking the roads. His arguments were
dismissed by the High Court earlier but the Supreme Court overruled the
decision of the High Court.
IV.
Legality of
section 144 of CrPC vis-s-vis Right to Protest
Section 144
of CrPC is one which vests broad powers in the hands of administrative
authorities. This section has always remained under controversies as it is very
prone to be misused. As discussed earlier, we can see that it has already been
misused in Ramleela incident (in the case of ‘Re-Ramlila Maidan Incident Dt
... vs Home Secretary And Ors’)
which took place in 2011. This section is so vital that it can directly curtail
the right to protest.
However, in the case of Mazdoor Kisan Shakti Sangathan
vs union of India, it was held that section 144 is an emergency provision
and it should be utilised in case of absolute necessity only.
Previously in the case of ‘Madhu limaye
v. Sub-divisional magistrate, Monghyr & ors’., the
supreme court had decided the constitutional validity of section 144 under
chapter 8 of the CrPC.
The contention of majority petitioners in this case
was that the applicability of section 144 lies on the urgency of the situation.
This section should be used to safeguard the society from grave disorders. It
should be used against those people who are engaged in endangering the public
safety or health. Even though the power rests in the hand of administrative
authority but the use of this power should be judicious so that it can endure
judicial scrutiny. Also, the order passed under section 144 should be speaking
order which means, it should be based on reasonable grounds. Therefore, the
submission of petitioners was that that a proper enquiry should be made before
passing of such orders.
The supreme court disagreed with their contentions
and held that mere act of disobedience is not sufficient to constitutes an
offence under section 188 of the IPC. In addition to such disobedience there
should also be a threat to human life, public safety and the presence of
obstruction is necessary.
All the order under section 144 should be directed
towards an individual who has caused such danger or obstructions. However,
where the mass is involved and the distinction cannot be made between them and
the and general public, a general order is justified.
The court upheld the constitutional validity of
section 144 of CrPC and said that in case of ambiguity and discontentment,
proper safeguards are made available to the aggrieved party. Restrictions
imposed by section 144 are reasonable. This section cannot be made
unconstitutional based on the fact that it is prone to being misused and even
in the case of misuse remedy is available to the party aggrieved. They can
question the exercise of such administrative power as being ultra-virus, in the
courts.
V.
Conclusion
It is a cornerstone of Indian democracy that every
citizen has the right to peacefully protest without being threatened by
firearms. The government needs to respect certain fundamental values even as it
protects civilians against violent protests.
Protests are a key reason why democracy survives and
thrives. As a result, violent protests, such as those in recent weeks, defeat
the movement's goals. Keeping one's rights and fulfilling one's
responsibilities are equally important in a democracy.
The legality of any protest depends on its
nonviolent nature and its compliance with appropriate permits. In addition to
upholding the rule of law, the constitution requires that public property not
be destroyed.
Unlike absolute freedom, fundamental rights can be
subjected to reasonable restrictions, as if people had unrestricted freedom
without any impact on society at large. Accordingly, under sections 2 to 6 of
the Indian Constitution, that right is subject to reasonable restrictions that
are imposed by the States in order to safeguard public policy.
There are laws that allow police to restrict such
gatherings in many states. The court found that the police cannot restrict
people's right to demonstrate unless there's a good reason in Himmat Lal K
Shah vs. Commissioner of Police
Ahmedabad.
Demonstrations are evidence of a free, democratic
society, in which people's voices are heard and decisions are properly made,
and they are a fundamental right and the lifeblood of democracy. Without
protests, the democratic system loses its effective functioning. Indian
democracy is built on the freedom of citizens to peacefully protest and
congregate without weapons. In order to protect civilians from violent
protests, the government must adhere to some fundamental principles.
A demonstration's conduct can be restricted in order
to prevent its abuse, but it is the state's responsibility to regulate the
efficient use of that right and to ensure that the people don't abuse it. Thus,
the government's role is to maintain a balance between the two and to restore
social stability. Public criticism should be welcomed by the government, and
the right not to submit should not be curtailed, as protests are one way for
society, as the watchdog of government activities, to signal their discontent
with the government.
Nevertheless, every responsible citizen must
exercise his or her right when appropriate and not unconditionally oppose
government acts and policies, for this leads to societal instability as well as
a negative impact on the overall functioning of the country.
A democratic society requires freedom to protest to
be an important component, and the government should assist citizens in
exercising their rights instead of restricting them.
