Two antagonistic rights

Protest & Order

By Dr. S. Saraswathi
(Former Director, ICSSR, New Delhi)

“Democracy and dissent go hand in hand, but then demonstrations expressing dissent have to be in designated places alone”, said the Supreme Court in the verdict on Shaheen Bagh protest against the Citizenship (Amendment) Act that went on for several weeks in Delhi. The protestors blocked public roads for residents of the area and commuters, and disregarded the directives issued for controlling the spread of COVID-19 infection. Right to protest and right to orderly life in public space – two antagonistic rights are unleashed to clash in the name of democracy and people’s voice.
Right to protest has been an issue for litigation several times in recent years, but no solution that could allow democratic right of dissent as well as protect democratic orderly life to the satisfaction of people on either side of the conflict has been found. As a consequence, we are permanently living in a state of protests as if there is no mechanism for peaceful resolution of differences or for reconciliation of varied viewpoints in an issue.
Striking a balance between the two is a legal issue, but becomes political in practice. The Indian Constitution, while conferring certain rights to all citizens, has also imposed certain fundamental duties. The bench held that public ways and public spaces could not be occupied in such a manner and that too indefinitely. In the context of the pandemic, it seemed that the protestors did not realise the health risk for themselves and others nearby and were misguided into thinking that CAA was as bad as COVID-19 – an absurd idea.
The Supreme Court reminded the people of India through its verdict that rights are subject to reasonable restrictions imposed in the interest of sovereignty, integrity, and public order. Such restrictions are intended to protect equal rights of all users of public space.
In many instances of public protest in various States, the administration fails to take timely action, awaiting for the court order. While authorities have to give freedom to voices of dissent, they cannot allow prolonged and serious hindrances to normal life. So also, in the pretext of preserving public order, they cannot suppress dissenting views. This situation leads to safe administrative inaction putting responsibility for decision on courts.
One of the easiest and instantaneous strategy generally adopted by the authorities is to clamp Section 144 of the Criminal Procedure Code, which prohibits assembly of four and more persons in designated places. But, critics argue that Section 144 is a vestige of colonial rule which confers on the executive authorities, even magistrates, extraordinary powers to pass orders to quell disturbances including expression of dissent to a government decision with an iron hand on the basis of maintaining public peace. Such powers include passing orders to tackle any instance of “nuisance” or “apprehended danger” that may cause adverse impact on human life, health, safety, or peace.
Protests actually deteriorating into or likely to deteriorate into serious lawlessness, disorder, and violence have become so common that Section 144 is an absolute minimum weapon to restore peace and order. Stone-throwing on the police, burning buses, and stopping vehicles including ambulances carrying critically sick patients have become expressions of protests. Freedom and democracy do not mean right to destroy public property or block the freedom of other citizens. Freedom has its limits.
The logic of clamping Section 144 in an entire State is questioned by critics who want to restrict its application to the disturbed spots for shortest time, sufficient to restore normalcy. For, normal life should not be affected by peaceful restrictions also.
This Section is intended to prevent “unlawful assembly”, which is a legal term for a group of people with a common intention to disturb peace. Provisions equivalent to this section are in force in many countries. In Britain, at its start, an act of disturbance is termed a “rout”, and after commencement, it is called a “riot”. The offence is abolished in England in 1986. In Canada, assembly of three or more persons causing disturbance to peace is not allowed.
The right to protest is derived from the right to freedom of assembly, which in turn flows from freedom of speech. These freedoms are enshrined in several international agreements like the European Convention on Human Rights (1950) and the International Covenant on Civil and Political Rights (1966), and are subject to prescribed restrictions. Propaganda of war, and advocacy of “national, racial or religious hatred” are prohibited, and restrictions on free assembly are allowed in the interests of national security, public safety, public order, public health and morality, and protection of rights and freedoms for all.
We have to prevent degeneration of democracy into mobocracy and towards this, enlighten our people that discipline and rule of law are foundations of democracy.
Right to protest does not include violence and lawlessness anywhere in the world. But, they cannot be separated when masses are involved and when issues of immense significance raising emotions of large groups of people are in question. Violent protests are outlawed throughout the US. The first amendment of US Constitution cited as the guarantee of the right of the people speaks of the “Right of the people peaceably to assemble”.
So, the New York City Mayor evicting protestors of Occupy Wall Street Movement from Manhattan Park in 2011 justified his action on the ground that the law that created the park required that it be open to the public to enjoy passive recreation. The year 2011 is a year of protests all over the world and in India against corruption in public life.
In 1998, a ruling of the Supreme Court in India, distinguishing bandh and hartal, clarifies that bandh involves coercion of others into following those who call for bandh and thus unconstitutional as it violates the freedom of others. This was reiterated in 2002 upholding the Kerala High court order that enforcement of a hartal by force and intimidation – physical or mental – and coercion amounts to an unconstitutional act. The Kolkata High Court in 2003 banned all forms of processions and political meetings from 8 am to 8 pm on working days in West Bengal. The court expressed concern about obstruction to the common men from going on with their work and to commuters who have to quickly reach their destinations due to rallies and protests blocking traffic. Despite several court judgements, unlawful assembly and street level protests go on endlessly unmindful of the inconvenience to the general public and presently in open defiance of epidemic rules and guidelines.
Historically, protests have been instrumental in changing government policies and social conditions as in feminist movements, environmental movements, civil rights movement, etc. Today, protests are mostly against the government of the day and organised by political parties. It means that protestors do not trust law-making, law-enforcing and judicial bodies and trust their collective strength to force the government directly to listen to them. Protests are organised to oppose majority decision rather than to advocate the cause of the weak. The element of hidden exploitation of the weak does need to be exposed. — INFA