When the Supreme Court Upheld the Right to Protest

There was jubilant celebration a fortnight back  when the Supreme Court  pronounced an order  that the ban imposed by the National Green Tribunal(NGT)on protests and demonstrations outside Jantar Mantar, New Delhi would be lifted; that there could not be a blanket restriction on citizens right to assemble and protest peacefully. It  also allowed demonstrations at the Boat Club, restricted to protestors since the 1990s. Boat Club, and later Jantar Mantar have been important sites of innumerable protests and sit-ins, emerging as established spaces for expression of dissent and free speech. Many have led to significant legislation, policy, public and civil action.

While ruling on the petitions challenging the blanket ban on Jantar Mantar and the illegal perpetual imposition of Section 144 on most of New Delhi, the Supreme Court said that “The right to protest is, thus, recognised as a fundamental right under the Constitution. This right is crucial in a democracy which rests on participation of an informed citizenry in governance. This right is also crucial since it strengthens representative democracy by enabling direct participation in public affairs where individuals and groups are able to express dissent and grievances, expose the flaws in governance and demand accountability from State authorities as well a powerful entities. This right is crucial in a vibrant democracy like India but more so in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities.” This is an important concession on the fundamental right to protest as a part of Article 19(1) a & b of the Constitution. It is therefore a critical judgement and affirms the chapter on fundamental rights which has always protected violation of citizens’ democratic interests across the board.

There have been a series of restrictions and violations of free speech and expression. The audacity of the establishment is apparent in the steady planned encouragement of these erosions of a critical fundamental right, with the definite purpose of weakening the Constitution and the voice of people. That is why people from all sectors-- writers, playwrights, film makers, philosophers, political thinkers, students, academic institutions, political dissenters and many more who have the ear of the people— have been threatened by anti-social elements  and the government has kept very quiet. The attack on the use of public space followed as the final stroke in a series of anti-democratic restrictions. Steadily and systematically the space of protest began shrinking and this government did the ultimate in supporting the declaration  that such places would be banned. 

The right to freedom of expression anchors all other rights. Without the right to speak, demonstrate, protest and dissent, how will people in a democracy present a critique of unconstitutional and anti-democratic governance and the violation of the rule of law, social violence and discrimination, and violence? 

In opening up both Boat Club and Jantar Mantar the Supreme Court reaffirms that the right to peaceful protest is a cherished fundamental right enshrined in the Constitution. This assertion is of even greater significance in the current environment where critical voices are being silenced. In the Court’s own words, “Legitimate dissent is a distinguishable feature of any democracy.” However, the judgment falls short of providing effective remedy against the executive power in imposing Section 144 restrictions on the rights of peaceful assemblies. The Court has directed police authorities to frame guidelines for peaceful demonstrations, while the same authorities have been responsible for imposing excessive restrictions. The core question related to the perpetual and illegal imposition of Section 144 in Central Delhi still remains. 

In the order, it is obvious that it gives us restricted and regulated access. There are rules and regulations which the police will frame--to  decide, whether the protest is  “innocuous” enough. “The underlying message is that certain categories of  peaceful protests and demonstrations, in a guarded and regulated manner, could be allowed so as to enable the protestors to exercise their right and, at the same time, ensuring that no inconvenience of any kind is caused to the residents.” The Supreme Court’s judgment reiterates once more that the right to protest is an intrinsic part of the fundamental right to freedom of peaceful assembly. It is now the duty of the government to ensure that these rights are protected. 

There is a difference between the State and an elected government. This government is undermining the Constitution which in fact defines the state, and directs government action. The constitutional guarantees are crucial in a country where basic promises of freedom remain a dream, and where corruption and arbitrary use of power make a mockery of the governance. Amendments to the Constitution and the law invite protest and uproar from people who do not want the changes. If the Central Government steadily undermines these rights, it could and it does change the nature of the state. The state has to remain within the constitutional framework of a democratic republic. Weakening the constitution and the framework of justice in the conception of the state is dangerous. Public protest is sacrosanct, particularly in a country which is victim to all kinds of discrimination, as both a tool and a monitor of the health of the Republic.

By Aruna Roy. (Aruna Roy is a social and political activist. She is the winner of Ramon Magsaysay Award for Community Leadership in 2000)