Open Forum
New Delhi, 14 October
2020
Protest & Order
TWO ANTAGONISTIC RIGHTS
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
(Copyright, India
News & Feature Alliance)
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