Right To Protest In India And Constitutional Safeguards

Source: Indian Express
GS II: Fundamental Rights, Indian Constitution, Judiciary, Governance And Civil Liberties

Why in the News?

The Delhi Police denied permission for a Congress protest at Jantar Mantar on October 10, citing short notice. The incident has raised questions about the constitutional right to protest, police powers to regulate demonstrations and the remedies available when permission is denied.

News in Brief

• Article 19(1)(a) and Article 19(1)(b) protect freedom of speech and expression and the right to assemble peacefully without arms.
• These rights are subject to constitutional restrictions in the interests of public order and other specified grounds.
• Delhi Police guidelines require organizers to apply for permission in advance, generally at least 10 days before a proposed demonstration at Jantar Mantar.
• Organizers can seek reconsideration from the police or approach the High Court under Article 226 if the refusal is arbitrary or unconstitutional.

Constitutional Right to Protest

• Article 19(1)(a): Guarantees freedom of speech and expression.
• Article 19(1)(b): Guarantees the right to assemble peacefully and without arms.
• Article 19(2): Permits reasonable restrictions on freedom of speech and expression on specified grounds.
• Article 19(3): Permits reasonable restrictions on peaceful assembly in the interests of the sovereignty and integrity of India and public order.
• Article 21: Protection of life and personal liberty
• Article 32: Right to approach the Supreme Court for enforcement of Fundamental Rights.
• Article 226: Power of High Courts to issue writs.
• The right to protest is an important means of expressing dissent in a democracy.
• However, it is not absolute and must be exercised within the constitutional and legal framework.

Police Powers and Permission Requirements

Delhi Police guidelines regulate demonstrations at Jantar Mantar.

• Organizers are generally required to submit applications to the Deputy Commissioner of Police at least 10 days before the proposed event.
• Late applications may be considered depending on the availability of space and other circumstances.
• Authorities assess the potential impact on traffic, public safety, law and order and public tranquility.
• Permission may also be subject to  security requirements and unforeseen developments.
• Demonstrations at Jantar Mantar are subject to prescribed conditions, including limits on the number of participants.
• Key Concern
  • Permission requirements should regulate protests rather than become an arbitrary means of preventing peaceful demonstrations.

Supreme Court’s Position

• In Mazdoor Kisan Shakti Sangathan v. Union Of India (2018), the Supreme Court examined the balance between the right to protest and the rights of residents affected by demonstrations at Jantar Mantar.
• The court recognized the importance of peaceful protest while emphasizing the need to balance it with public order and the rights of others.

Key observations

• Authorities must balance protesters’ rights with the interests of residents and the general public.
• Protests may be regulated through reasonable measures rather than prohibited altogether.
• Restrictions should be proportionate to the circumstances.
• Authorities should consider appropriate arrangements for peaceful demonstrations.

The judgment highlights that regulation should not unnecessarily  undermine the constitutional right to protest.

What Happens When Permission Is Denied?

Organizers have several possible remedies when the police refuse permission.

Administrative remedy

• Organizers may approach the police to seek reconsideration.
• They can request reasons for the refusal and propose alternatives, such as a different venue, date or duration.

Judicial remedy

• Organizers may approach the High Court under Article 226 if the refusal appears arbitrary, discriminatory or unconstitutional.
• The court can examine whether the authorities have exercised their powers lawfully.

The police are expected to record and communicate the reasons for their decisions in accordance with the applicable rules and guidelines.

Consequences of Violating Restrictions

• Holding a demonstration despite a lawful prohibitory order may attract legal consequences.
• Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, empowers the component Executive Magistrate to issue urgent orders in cases covered by the provision.
• Violation of a lawful order may attract penalties under the applicable law.
• Organizers and participants must comply with legal restrictions while pursuing available remedies against an unjustified refusal.
  • A refusal of permission and the imposition of a prohibitory order are distinct situations.
  • Their legal implications depend on the circumstances and the applicable provisions.

Important Supreme Court Judgments

• Himat Lal K. Shah v. Commissioner of Police (1973): Recognized that public meetings in streets may be regulated, but the power to regulate cannot be exercised arbitrarily.
• Ramlila Maidan Incident v. Home Secretary, Union of India (2012): Emphasized the importance of peaceful assembly and the need for lawful, proportionate police action.
• Mazdoor Kisan Shakti Sangathan v. Union of India (2018): Highlighted the need to balance the right to protest with public order and the rights of residents.
• Amit Sahni v. Commissioner of Police (2020): The Supreme Court held that public ways and public spaces cannot be occupied indefinitely for protests, emphasizing the need to balance dissent with the rights of commuters and the general public.

Challenges

• The right to protest in India faces several challenges.
• Authorities must balance peaceful dissent with public order, while arbitrary denial of permission can restrict citizens’ constitutional rights.
• Protests may also cause traffic congestion, noise and inconvenience to residents.
• The shortage of accessible and suitable protest spaces further complicates the exercise of this right.
• Ensuring transparent police decisions, accountability and effective judicial review is essential protect peaceful demonstrations while safeguarding public interest.

Way Forward and Conclusion

The government should ensure transparent permission procedures, provide suitable protest spaces and adopt proportionate crowd-control measures while allowing judicial review of arbitrary restrictions.

The right to protest is vital to democracy. Balancing peaceful dissent with public order is essential to protect constitutional values and democratic freedoms.

UPSC Prelims and Mains Practice Question

Consider the following statements:

1. Article 19(1)(b) guarantees the right to assemble peacefully and without arms.
2. The right to assemble under Article 19(1)(b) is absolute and cannot be restricted by the State.
3. High Courts can examine the legality of restrictions on peaceful protests under Article 226.

Which of the statements given above are correct?
(a) 1 only
(b) 1 and 2 only
(c) 1 and 3 only
(d) 1, 2 and 3

Answer: (c) 1 and 3 only

Mains Practice Question

Q) The right to protest is an essential feature of a democratic society, but it is subject to reasonable restrictions. Discuss in the light of judicial pronouncements. (150 words)

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