Right to protest

What is a protest?

A formal declaration whereby a person expresses a personal or disapproval of an act. A written statement made by a notary, at a request of a holder of a bill or a note that describes the bill or note and declares that on a certain day the instrument was presented for, and refused, payment.

A protest is generally made to save some right that would be waived unless a negative opinion was expressly voiced. Taxes are often paid under the protest, an action by which a taxpayer reserves a right to recover the amount paid if he has sufficient evidence to prevail.

The document states the reasons for the refusal and provides for the notary to protest all parties to the instrument declaring that they can be held liable for any loss or damages. A notice of protest is given by the holder of the instrument.

Types of Protest

The protest other than civil disorders can be divided into 13 categories:

  1. Boycotts
  2. Protest Camps
  3. Civil disobedience
  4. Culture jamming
  5. Demonstrations
  6. Direct Action
  7. Hunger Strikes
  8. Internet-based and online protests
  9. Protest marches
  10. Occupations (protest)
  11. Petitions
  12. Strikes
  13. Whistleblowing

 

Boycotts: It can be defined as engaging with a group of people in a concerted refusal to have dealings (protest) against a person, a store, an organization, etc.

The noun boycott is the protest itself.

 

Protest Camps: Protest camps are physical camps that are set up by activists, to either provide a base for the protestor to delay or obstruct or prevent the focus of their protests by physically blocking it with the camp.

 

Civil obedience: It is also called passive resistance, the refusal to obey the demands or commands of a government or occupying power, without resorting to violence or active measures of opposition. Its usual purpose is to force concessions from the government or occupying power. Civil disobedience has been a major tactic and philosophy of nationalist movement in Africa and India, In the American Civil rights movement, and of labor, anti-war, and social movements in many countries.

 

Culture Jamming: Culture Jamming is a protest used by many anti-consumerist social movements to disrupt or subvert media culture and its mainstream cultural institutions, including corporate advertising. It attempts to ‘expose the method of domination’ of a mass society to foster progressive change.

 

Demonstrations: A manifestation of a protest by a public rally or parade or a group of people marching together.

It can also be defined as an action by the mass of the group or collection of groups of people in favor of a political or other cause or people partaking in a protest a cause of concern. It often consists of walking in mass march formation and either beginning with or meeting at a designated endpoint.

 

Direct Action: Direct action originated as a political activist term for economic and political acts in which the actors use their power (economical and physical) to directly reach certain goals of interest and in contrast to those actions that appeal to other authorities.

 

Hunger Strikes: A refusal to eat which is done consciously and intentionally undertaken in a protest against something or to provoke the feeling of guilt in others for something wrong they are doing or if they have proposed to do that anything, done usually to achieve a specific goal, such as a policy change by the government.

 

Internet-Based And Online Protests: Independent activists over the world are using the internet and digital tools to build their community, connect with similar-minded people outside their physical surroundings as well as lobby, raise funds and organize events.

 

Protest Marches: A protest march is a type of protest or demonstration that generally involves a group of people walking from an assembly point to a predetermined destination, usually culminating in a political rally and often evoking a military march or parade.

 

Occupations (Protest): As an act of protest, occupation is a strategy often used by social movements and other collective social action to squat and hold public and symbolic spaces, buildings, critical infrastructure such as entrances to train shopping centers, university buildings, squares, and parks.

 

Petitions: A formally drawn request, often bearing the names of a number of those making the request that is addressed to a person or a group of persons in authority of power, soliciting of power, right, mercy, or for some social benefits.

 

Is Protest Legal in India?

The right to protest peacefully is enshrined in the Indian Constitution – Article 19(1)(a) guarantees the freedom of speech and expression concerning article 19(1)(b) assures citizens, the right to assemble peaceably without arms.

Article 19(2) imposes reasonable restrictions on the right to assemble peaceably without arms.
These reasonable restrictions are imposed in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with the foreign states, public orders, decency, or morality or relation to contempt of court, defamation, or incitement to an offense.

 

Caselaw: Ramlila Maidan incident vs. home secretary, the union of India & Ors. Case (2012)

In this case, the supreme court has stated, ‘Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by any arbitrary executive or legislative action.

 

Public Protest in India: (Historical view)

The background of the Indian Constitution is formed by its anti-colonial struggle within which the seeds of a political public sphere and democratic constitution were sown.

The Indian people fought hard and along to publicly express their views on colonial policies and laws to dissent from them to shape minds and form a public opinion against them, to speak to and against the government to challenge it.

People not only writ petitions but staged dharnas, held large public meetings, peaceful protests, and demonstrations, and even, for instance in Gandhi’s satyagraha launched civil disobedience movement.

Protests have also offered points of inclusion and participation to the voices that are not part of the mainstream as seen in the protests for the creation of the Andhra or the Chipko movement.

 

THE PURPOSE OF THE PROTEST

 

The whole purpose or objective of the protest is to stand up against injustice and act as watchdogs of government. This enables us, the citizens to let the government know that we do not agree with their work or any law that they make. It also helps to in a way have checks and balances and reminds the government we the people of India won’t tolerate government acting on their whim and fancies and we would uphold the values of the constitution.

 

During emergencies, many youth leaders that hold office today were seen protesting against the government when the government imposed any punishment that they wanted for anything that went against them. The government had everything from the press to courts under their control. Many of these leaders seen active in these protests were Arun Jaitley, AB Vajpayee, LK Advani, and Prime Minister Narendra Modi himself.

 

In 2011, when anti-corruption activist Anna Hazare began a hunger strike at Jantar Mantar in New Delhi, the movement led to the resignation of Agriculture Minister Sharad Pawar from the group of ministers that had been charged with reviewing the draft of the Jan Lokpal bill.

 

Not just for the government, people of the country also come together to protest for injustice and heinous crimes against society like we saw in the 2012 Delhi gang-rape case. This outrage of people pushed the government to make immediate cognize of the situation and amend laws to make them stricter.

As discussed even though the constitution provides us with rights to protest, this topic or this right has always seen to be controversial. There have been many debates to ask and seek whether a protest was legal or not, this debates always ends up in a courtroom.

Many cases have been filed in the Supreme court where the judgment of the court has decided on this issue and also whether it falls as a fundamental right or not.

In the case of the Ramlila Maidan incident vs. the Home secretary, the union of India & Ors. Case (2012), the supreme court has stated, ‘Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by any arbitrary executive or legislative action.

 

RELEVANCE BECAUSE OF RECENT HAPPENINGS

Recently enough the Supreme Court of India gave a judgment on the Shaheen Bag protest for Anti-CAA, the court is reported to have remarked that protesters cannot block the public roads and cause “inconvenience” to the general public.

The court said that people were entitled to protest, but the protest cannot be an indefinite one if it in a public area. It went on to say that an indefinite protest must be in “an area identified for protest”. However, it refused to pass any interim order to evict the protesters.

[The plea sought an answer from the court asking if people had unrestricted right to protest under Article 19 of the Constitution while violating other persons’ right to have a thoroughfare. “There is no quarrel with the proposition that everyone has a right to protest but the same is subject to reasonable restrictions, which can be imposed looking at the larger public interest,” the petition said.

In Mazdoor Kisan Shakti Sanghatan vs Union of India on July 23, 2018the Supreme Court has spoken through Justice Bhushan and Justice Sikri holding peaceful demonstrations by the citizenry to air its grievances and to ensure that these grievances are heard in the relevant quarters is a fundamental right. This right is specifically enshrined under Article 19 (1) (a) and 19 (1) (b) of the Constitution of India. Article 19 (1) (a) confers a very valuable right on the citizens, namely, the right of free speech. Likewise, Article 19 (1) (b) gives the right to assemble peacefully and without arms.

Together, both these rights ensure that the people of this country have the right to assemble peacefully and protest against any of the actions or the decisions taken by the Government or other governmental authorities which are not to their liking. Legitimate dissent is a distinguishable feature of any democracy. The question is not as to whether the issue raised by the protestors is ‘right or wrong or “justified or unjustified.][i]

 

This judgment of the supreme court was found to be controversial and many lawyers and judges came forward to criticize this judgment.

Judgment was called odd, contradicting itself and to a blanket ban on protests in public.

The judgment said that protests can be held only in a restricted area. The case cited constitution bench decision in Himmat Lal Shah case from 1972. In this case, it was held the state cannot by law abridge or take away the right of assembling by prohibiting assembly on every public street or public place. The state can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order.

Public order is defined in a long line of judgments. Public order is a threat to rule of law, so maybe riots, violence, and threat to the state can be classified as public order.

Authorities do need to balance the right and public order, one can’t say that right to movement will always trump the right to protest. Blanket ban therefore in a way prohibits all protest in advance.

There are clear guidelines under international law that say every protest has to be observed and studied on a case-by-case basis. According to UN Rapporteurs,’’ Report on Peaceful Assembly in 2016 states blanket ban including on exercise of right entirely or of any specific place or specific time are intrinsically are disproportionate, right to assembly is an equally legitimate use of public space, as commercial activity or movement of pedestrian or vehicle traffic, any use of public space requires coordination to protect different interest.

 

CONCLUSION

The right to protest as per Article 19 is limited by the saving clause under 19(2). The right to protest can be limited only by public order. The state can however felicitate the protest. The protest has to be of a defined time in an area that may not cause disruption or convenience of the general public.

RIGHT TO PROTEST

 

DHRUV TOMAR

LEXCLIQ

 

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