Right to protest is not absolute

As the saying goes, “Your right to extend your arm ends before your fist touches my nose.” The principle behind this adage is worth revisiting in the light of the protests in Delhi, and the protesters’ allegations that the authorities were infringing on their rights.

It is important to understand the scope of these rights. The Constitution guarantees citizens the right to protest through the freedoms of speech and expression, and of peaceful assembly. But these rights are neither unfettered nor absolute; they are subject to conditions and restrictions. Indian courts, including the Supreme Court, have repeatedly upheld both the right to peaceful protest and its limits, recognising that it must be balanced against considerations such as public order, national security and the rights of others. These are principles commonly accepted across democracies.

The same principle runs through Indian jurisprudence on several other issues. When the Supreme Court recognised privacy as a fundamental right in 2017, it also acknowledged that the right was not absolute. Restrictions may be justified on grounds such as national security, public order, and preventing the diversion of government benefits meant for citizens. A similar recent judgment deeming internet access a fundamental right will undoubtedly also be accompanied by certain exceptions, much as the right to assemble is subject to public order and can be temporarily restricted under Section 163 of the Bharatiya Nagarik Suraksha Sanhita, which replaced Section 144 of the CrPC.

During earlier protests at Shaheen Bagh and Jantar Mantar, courts ruled that protesters could not claim an unrestricted right to bring public life to a standstill, causing hardship to commuters, shopkeepers, office-goers, students and others. Subsequently, the Delhi Police designated Jantar Mantar as a protest site, with a cap of 1,000 people and restrictions on tents, weapons and loudspeakers.

When the recent protests swelled to a few thousand, causing considerable inconvenience to far larger numbers of citizens, the police withdrew Jantar Mantar’s designation as a protest site and instead designated three much larger grounds, including Ramlila Maidan, which has a stipulated capacity of 50,000.

Several protesters and their sympathisers have challenged the new sites before the Supreme Court and the Delhi High Court, arguing that proximity to Parliament is essential to make their voices heard. In reality, what they seek is the ability to leverage relatively small numbers to bring the heart of the national capital to a standstill, regardless of the hardship caused to lakhs of citizens.

The right to protest, as enshrined in the Constitution and the courts, is adequately accommodated by the new sites. Protesters should seek to make themselves heard by mobilising larger numbers and demonstrating the strength of public support for their cause, rather than paralysing daily life by exploiting the strategic location of a protest venue. Of course, the larger alternative sites, while providing that opportunity, also carry a risk for the protesters: that of embarrassing themselves, should they be able to manage only the same numbers seen at Jantar Mantar.

Beyond these fundamental issues, the debate is also clouded by hypocrisy and vested interests. A telling example is the chief minister of a southern state who joined the protests in Delhi, and criticised the police restrictions, while the very next day, the police, in his own state, booked protesters of the same cause.

Finally, it is important to distinguish between the exercise of free speech and the right of assembly in a democracy and the civil disobedience movements pioneered by Mahatma Gandhi against colonial rule. That distinction is precisely the one B.R. Ambedkar drew after shaping the Constitution of independent India, when he advocated abandoning civil disobedience, which he described as unconstitutional.

Baijayant ‘Jay’ Panda is National Vice President of the BJP and is an MP in the Lok Sabha.