The Right to Protest vs. Public Order – Balance between Democracy and Public Safety

Author- Priyam Malik, Sister Nivedita University (SNU)

Abstract

In India we have democratic system of government. So it is the right of people to raise their voice against the government for enforcement of their rights. The constitution by its provision ensures that citizens have certain rights to have freedom of speech and expression. But the constitution also tries to maintain the public safety and security in ensuring such rights. In no way, the constitution tries to protect public rights at the cost of public safety.

There are many instances where people gathered in a peaceful way to voice their claim.Such as there are-Narmada Bachao andolan, Chipko Movement, Lokpal (Jan Lokpal) Bill Movement, Nirbhaya Movement, Farmers protest etc. But there are cases in which the court tries to maintain such balance and democracy such as- Mazdoor Kisan Shakti Sangathan Case, the Shaheen Bagh Case (2020) and Ramlila Maidan Case etc. In other words judicial interpretation plays a crucial role in specifying what law to apply and what to not.

There are many instances where people didn’t follow the rule that any movement or association should conduct their activities in a calm way. It is not that there are no provisions for keeping such a balance but people don't hesitate to break that balance. It is not only the duty of the lawmaker to make proper provision, it is also the duty of the people to make sure the balance between the right to protest and public safety.

Keywords: Democracy, Government system, movement, constitutional right, violence, public safety

Introduction

A protest is a collective movement of opinions where individuals gather to voice their concerns about societal issues. In recent years, India has seen several large-scale protests caused by different causes. Some examples include the demonstrations against the Citizenship (Amendment) Act (CAA), 2019, at Delhi’s Shaheen Bagh and the farmers’ year-long agitation from 2020 to 2021 against the three farm laws. The Constitution of India grants its citizens the fundamental Right to Protest in many articles such as-Article 19(1) (a),Article19(2)(c) and Article 19(1)(b) which ensures that people can express their opinion in a democratic way. But, this right is not absolute and comes with certain restrictions. In this discussion, we will discuss the constitutional provisions related to the Right to Protest, the limitations imposed on it, its significance in our society, and what supreme courts have contended that have shaped its interpretation over time.

Even after the fact that the constitution of India grants these rights in favour of its citizens ,they had put certain restrictions upon those in order to favour the state on some grounds. So, the state can impose reasonable restrictions on these rights reasonably. Grounds on which state can impose reasonable restriction on, are-

The state’s security
In the interests of India’s sovereignty and integrity
Public order violation
In terms of ethics or morality
In connection to contempt of court, defamation, or encouragement to commit an offence
Relations with other countries that are friendly

In simpler terms, we can say that article 19 can’t resist the state to put reasonable restrictions on its citizen’s fundamental right of protest on above mentioned ground provided the restriction should be reasonable in order to be imposed.

Constitutional provision related to right of protest

In constitution article 19 is the concerned article. In this article sub clause (a),(b),(c) of clause (1) ensures this rights .it lays down-

All citizens have the right -

1) To freedom of speech and expression

2) To assemble peaceably and without arms;

3) To form associations or unions or co-operative societies;

1) Freedom of speech and expression (19(1)(a))- In this regard the right of freedom of speech and expression can be interpreted as if someone can express their opinion on activities of the government.

2) Right to Freedom of Association (19(1)(b)): this right basically empowers people to assemble and raise their voice against the activities of the government or to question their activities in case it is taking away the rights of citizens.

3) Right to Freedom of Assembly (19(1)(c)): This right can be interpreted as a right which empowers people to assemble or create associations or unions against the government for protecting their rights.

Even after conferring these rights to its citizen constitution of India empowers the state to put reasonable restriction on this right. State can put restriction or can make laws which can prevent the citizens from exercising these rights on following grounds-

The state’s security: This clause prohibits the use of these rights to be exploited by its citizens. It aims to prohibit all such speech and aggression which can shake the foundation of the state and can result in internal or external aggression, wagging of war, rebellion against the government etc.
In the interests of India’s sovereignty and integrity: The following was added by constitution 77th amendment act, 1963.this ground was added to prohibit any material that can attack the integrity and sovereignty of India. Territorial integrity herein refers to territorial dramacation of whole India not of only state. Sovereignty means that India is not bound by its law but by its own state.
Public order violation: In the case of superintendent, central prison vs. Ram Manohar Lohia the court discussed the ambit of the phrase Public order for the first time. The court held that the public is the basic need of society as it enables people to do their normal activities. The court further held that public disorder can be of two types: one endangers the security of the state and another of minor or local importance. The court contended that all the grounds under Article 19(2) can come under public disorder.
In terms of ethics or morality: By this ground state ensures there is a balance between individuals' right to express and the state's duty to protect its morals. So the state can suppress and even punish indecent and obscene material. Section 293 to 294 of Indian Penal Code penalises any act regarding obscene material. In the case of S. Khusboo vs. Kanniamal the court held that there is a difference between “vulgarity” and “Obscenity”. If a literature contains some vulgar terms it can’t be said as obscene. However it is in the hands of the court to decide so.
In connection to contempt of court, defamation, or encouragement to commit an offence: This is another reasonable restriction imposed on the fundamental right of freedom of speech and expression. The reason behind this is to protect the system of judicial mechanism.In case of M.R. Parashar And Ors vs Dr. Farooq Abdullah CJ Y.V. Chandrachud held that contempt proceedings can only be initiated where it is necessary to upheld the rule of law. Article 129 and 215 empowers the High court and supreme court to punish for their contempt.
Relations with other countries that are friendly: This ground was added by constitution 1st amendment act, 1951.Through this ground state tries can ensure punishing the libel and slander which is detrimental to any foreign state. Official secret act 1923 provides restriction on given ground.

However, even after providing the right to protest ,the constitution of India states some fundamental duties which explicitly work as a restriction to it.

The constitution of India ,in Article 51A states that –it is the duty of every citizen to safeguard the public property and abjure violence.(Clause i).

This constitution tries to maintain the balance i.e., ensuring the right to protest is given but not the right to violence. So, the right to protest can be protected but acts of violence can’t be. The state can take serious action for the violence that is taking place under the umbrella of the right to protest.

As we can see, the constitution in many ways tries to balance the right to protest and public order so that it can’t be misused by people for their personal ends or for causing harm to public entities.

To find out What is the way the Indian legal system tries to ensure its balance between public protest and public safety? First we need to understand what stature do the legal system uses to ensure such balance.To find out this, we are going to look into the grundnorm of legal system of India i.e., constitution of India .It has many provisions of that which ensues balance but this is not enough for this .

But only reading was not enough so we decided to discuss judicial interpretations regarding this matter to know how the judicial system ensures balance .We need to understand how the Indian judiciary has interpreted the provisions related to this matter. We have discussed many case laws which basically give insights to the particular situation where courts used these provisions to ensure balance.

Even after doing practical analysis of how courts use such provisions ,still there are instances where violence is taking place in the colour of protest. We have tried to provide valuable insight by this research. We would try to assess the situation through many interpretations.

Judicial interpretation

The judiciary has consistently worked to balance the citizens’ right to protest with public order. Some of the instances are the following-

1)In the Mazdoor Kisan Shakti Sangathan Case (2018), the Supreme Court held that the need to balance the interests of protestors with the rights of non-protestors. The case involved a dispute regarding protests at Jantar Mantar in Delhi. The Court observed that while the right to protest is a fundamental right, it must be exercised in a way that does not interfere with the daily lives of citizens, particularly the right of individuals to access public spaces and travel freely.

The Court directed the police to devise a mechanism that would allow peaceful protests while ensuring that these protests did not disrupt public life. The judgement underscored the need for a regulatory framework that would enable protests without causing undue inconvenience to other citizens.

2)Similarly, in the Shaheen Bagh Case (2020), the Supreme Court recognised the right of citizens to protest peacefully but also ruled that public spaces and roads could not be occupied indefinitely. The Shaheen Bagh protests, which were held against the Citizenship Amendment Act (CAA), led to the blocking of a major road in Delhi for months, causing significant disruption to commuters. The Court held that while citizens had the right to protest, they could not block public roads for extended periods, as this infringed upon the rights of other citizens to use public spaces freely.

3)The Court also referred to its earlier judgement in the Ramlila Maidan Case (2012), where it stated that the right to assembly and peaceful protest cannot be taken away by arbitrary executive or legislative actions. However, it reiterated that protests must be conducted in a manner that does not violate public order or the rights of others.

Through these rulings, the judiciary has emphasized that while protests are a democratic necessity, they must be regulated to protect broader societal interests.

Some instances of peaceful protest

Many times protests have taken place in many parts of the country which have been done peacefully. The following are the example of those-

Chipko protest: On the basis of the Gandhian non- violence principle this movement had started.People especially women started defrosting by embracing trees. Thousands of people came out in support of the green movement across India. . Their determination sparked a nationwide movement, drawing thousands in support of protecting forests across India.

Narmada Bachao Andolan (1985): It was started in 1985.This movement had questioned the large scale projects in the name of development. It brought together a big group of Adivasis, farmers, environmentalists, and human rights advocates. The court ordered that development at the dam be halted immediately.

Lokpal (Jan Lokpal) Bill Movement (2011: In 2011, anti-corruption activist Anna Hazare went on a hunger strike at Jantar mantar, demanding the introduction of Jan Lokpal bill. The whole nation rallied behind him. This effort was a once-in-a-decade occurrence. Get an answer to what is Lokpal Bill in the linked question.

Nirbhaya Movement, 2012: Following the 2012 Delhi Gang Rape, hundreds of people took to the streets to protest in various areas of the country. Finally, new legislation was enacted. The government also launched the Nirbhaya Fund to ensure the girls’ protection.

Farmers’ Protest (2020): In 2020, farmers across the country staged a historic year-long protest against three agricultural laws. Their resilience and unity forced the government to withdraw the controversial laws and form a committee to review the Minimum Support Price (MSP) system. as the government withdrew the bills and formed a committee to review the MSP.

These examples demonstrate how structured and peaceful demonstrations can lead to constructive change without jeopardizing public order.

Conclusion

The right to protest is an essential element of democracy, allowing citizens to voice their concerns and hold the government accountable. The Indian constitution tries to ensure this right through Article 19 on the other hand it imposes reasonable restrictions on it to maintain public order, security and integrity. The judiciary has played a crucial role in interpreting these provisions, striving to strike a balance between the people's right to protest and the need for public safety and order.

While numerous movement has led to several political changes such as –Chipko movement, Narmada Bhachao andolan and the Nirbhaya movement etc. there have also been instances where protests have disrupted public life.Judiciary in its best tries to ensure in many cases the balance between the right of protest and public safety such as in the case of Shaheen Bagh case.

Ultimately, protests serve as a powerful tool for change, but they must be conducted responsibly. The state must ensure that citizens’ rights are protected while also upholding law and order. A well-regulated and constructive approach to demonstrations can lead to meaningful progress without causing unnecessary disruption to society.

In the last one thing that comes to our mind is that as a citizen of India raising voice for our fundamental right is a fundamental right itself but we need to consider that it is done in a way that it does not cause any harm to any other group of society. That’s the only suggestion we can give to people to maintain balance between the right of protest and public safety. As responsible citizens, it is our duty to voice our concerns peacefully, uphold the dignity of public property, and contribute positively to the democratic fabric of our nation.