Harmony In Dissent - Exploring Democratic Protests With A Spotlight On Farmers’ Movements
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Category: General Law
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HARMONY IN DISSENT: EXPLORING DEMOCRATIC
PROTESTS WITH A SPOTLIGHT ON FARMERS’ MOVEMENTS Ranveer Singh Rathore, SSLG, Jaipur National University Aishwarya Sharma, University Five Year Law College, Rajasthan University Girraj Sharma, SSLG, Jaipur National University “Protest beyond the law is not a departure from democracy; rather is it is absolutely essential to it. ” ~ Howard Zinn What had made some great civilizations and ruined the others is nothing but the power of association among mankind and its thoughts. Those rebellious notions for one segment of society can evolve into a revolution encompassing the whole. In a robust democracy, albeit considered as one of the best form government thus far, citizens still find themselves having to fight for what they rightfully deserve, and for what is unjustly denied to them.
The right to freedom of assembly as has been eloquently outlined under Article 19 (1)(b) as right to assemble peaceably and without arms, in addition to the freedom of forming associations or unions under Article 19(1)(c). Both of which are coterminous with the freedom to protest, which notwithstanding the fact, that it is not explicitly mentioned in the Indian Constitution or most of the constitutions of the world, it derives its existence from the above mentioned provisions and clarity from precedent judgments. The Hon’ble Supreme Court of India in one such matter of Himat Lal K. Shah vs. Commissioner of Police, Ahmedabad, 19731 held that peaceful demonstrations and protests are a legitimate form of exercising the fundamental rights to assemble peacefully and without arms guaranteed under article 19(1) (b) of the Indian Constitution.
The court emphasized that the state cannot curtail this right unless it is necessary to prevent disorder or violence.
1 Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, AIR 1973 SC 87
This raises a significant question regarding the extent to which an assembly constitutes a protest, and when it becomes a threat to the order and security of the society. A better understanding of the mentalities of both, the authorities facing the protest and the ones holding the protest is indispensable.
INTRODUCTION
“There may be times when we are powerless to prevent injustice, but there must never be time when we fail to protest. ” – Elie Wiesel To protest is in the very essence of human nature, and it is no doubt the most crucial of all, for it incites chaos, which in turn brings change to the society as a whole. All through history from the French revolution to independence struggle of various nations even to this day, the political struggle in various countries has faced one thing in common, which is the collective mass aggression, aggregating into something unimaginable, as strong to topple governments. Speaking of the French Revolution, we have witnessed how the ignorant aristocracy ruling class of the nation ended up with nothing better than their heads on spikes demonstrated in the streets.
It’s a matter of debate whether extremist actions of the public in the name of dissident values are worth defending or not, nevertheless no matter how morally or ethically abysmal it is considered to behead a ruler or assassinate a Prime Minister or for that matter any other imminent figure, of the society, it still happens and unfortunately will keep happening until the very human psychology in response to a contention is contemplated. The Universal Declaration of Human Rights (UDHR) under its Article 20 declares the right of each person to peaceably assemble and to form association, this includes peaceful protest and engagement to it, and similarly the International Covenant on Civil and Political Rights (ICCPR) under its Article 21, mandates freedom of assembly along with Article 22, which declares freedom of association.
The European Convention on Human Rights also under its Article 11 underlines the freedom of assembly and association. In parallel to them, Article 19(1) (b) of the Indian Constitution offers the right to assemble peaceably and without arms along with 19(1) (c) guarantying freedom of associations or unions or co-operative societies. Protests have been the quintessence of Indian freedom struggle, myriad ways of assembly to show dissent has been observed during the anti-colonial struggle in India. Not just the frontier freedom fighters but every Indian fought hard and long to express their views and opinions on colonial policies and laws; people filed writ petitions, staged Dharnas, held large public meetings, peaceful protests and demonstrations.
The Hon’ble Supreme Court emphasized the foundational role of freedom of assembly in shaping India’s society, economy and polity in the 1973 five-judge Constitution bench judgment of Himmat Lal K. Shah vs. Commissioner of Police, Ahmedabad,2 held that: Freedom of assembly is an essential element of any democratic system. At the root of this concept lies the citizen’s right to meet face to face with others for the discussion of their ideas and problems- religious, political, economical and social.... assemblies face to face perform a vital significance in our system, and are no less important at the present time for the education of the public and the formation of opinion that they have been in our past history.... public streets are the ‘natural’ places for expression of opinion and dissemination of ideas.
Indeed it may be argued that for some person these places are the only possible arenas for the effective exercise of their freedom of speech and assembly. The Court additionally noted that: Public meeting in open spaces and public streets forms part of the tradition of our national life. In the pre-independence days such meetings have been held in open spaces and public streets and the people have come to regard it as a part of their privileges and immunities. It is of great significance that the most ancient conceptualization of democracy as a system of election based on Universal Adult Franchise is premised on the exercise of freedom of assembly. Public meetings, rallies and other ways of communicating through these assemblies were the way to persuade voters and engage them to strengthen representative democracy.
Thus, freedom of assembly constitutes the foundational stones on which the wall of Indian democracy rests. WHAT IS FREEDOM OF ASSEMBLY AND PROTEST?
‘Political democracy cannot last unless there lies at the base of it social democracy. What does
2 Himmat Lal K. Shah vs. Commissioner of Police, Ahmedabad and Anr. (1973) 1 SCC 227.
social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principle of life. ’3 – Dr. B. R. Ambedkar ‘WE THE PEOPLE OF INDIA’ significantly marks the source from where the Constitution of India gains it legitimacy. The Preamble plays an important role to establish the basic principles, on which the country is supposed to be governed by the State and its authorities. The evocative language therein clearly put forth that, in India, the people are supreme and not the elected representatives. 4 Thus, the constitutional paradigm of the freedom of assembly in India, must accordingly be located in the context of the supremacy of the general mass over the lawmakers or executives.
Freedom of Peaceful assembly (Article 19(1)(b) of the Indian Constitution) along with freedom to form associations or unions or co-operative societies (Article 19(1)(c) of the Indian Constitution), is the individual right or ability of people, to come together and collectively articulate, advocate and aspire their collective shared ideas. It is recognized as a human right, a political right, and a civil liberty. Any human society is structured is such a way, that it inevitably leave remnants of inequality and injustice to a certain marginalized sect of that society from time to time, this leads to a buildup of revolt or contention among that group of people, leading to a more visible form of disagreement for the demands they hold for themselves. These contentions often emerge when individuals feel marginalized or oppressed by social, economical or political systems.
In societies where systemic inequalities persist, individuals may be driven to protest against perceived injustices. The freedom of peaceful assembly is recognized as universal and indivisible5 under international human rights law, and is specifically guaranteed under Article 21 of the ICCPR, to which India acceded in 1979. International human rights law defines an assembly as “an intentional and temporary gathering in private or public space for a specific purpose, whether
3 November 15, 1949, Speech delivered in the Constituent Assembly of India.
4 Usha Bharti vs. State of Uttar Pradesh (2014) 7 SCC 663
5 Report of the Special Rapporteur on the rights to peaceful assembly and association, United Nations, General Assembly, A/72/135, para. 14, Accessed on: January 22, 2021, at: documents-ddsny. un. org/doc/UNDOC/GEN/N17/214/75/PDF/ N1721475. pdf? Open Element. mobile or static. ”6 It further states that: The right of peaceful assembly shall be recognized. No restriction may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interest of national security or public safety, public order (order publique), the protection of public health or morals or the protection of the rights and freedoms of others. 7 Protests are the hallmark of a free and woke society, whose logic demands that the voice of the people should be acknowledged by those in power.
The current government has faced many protests but the most infamous one has been the Farmers’ Protest of 2020-21. One such event that we are witnessing since February this year is what’s termed as the Farmers’ Protest 2. 0 as some would say it is the follow up of the previous protest held in 2020-21, against the three controversial farming laws or the Farm bills introduced by the government, claiming them to be the revolutionary laws to increase farmers’ income and rectify other such issues. Despite their claims, the farmers were apparently unsatisfied with the provisions, and hence contended their enforcement which eventually led to a massive protest pan India, majorly in Punjab, Haryana and Uttar Pradesh surrounding Delhi NCR as a strategic move.
Eventually, the government was forced to repeal those laws and made certain promises to mitigate the situation back then, the term of the present government is about to end and apparently they haven’t been able to make up their promises yet resulting into the agitation rising up on the borders of Delhi NCR with a plan to march in (Delhi Chalo) to express their disappointment. This time with more aggression and strong demands on the table. 8 It is rightly said by Bobby Hutcherson - “the ultimate test of a free society is not the comfort level of those in power but the rights of those who are powerless. ” This quote beautifully explains the meaning of a true democratic government and the purpose of its formation.
It is the duty of the government or any other body ruling a particular set of people, to uphold their rights including the rights of freedom of assembly and protest for the welfare of the society, as 6 Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, United Nations, General Assembly, A/ HRC/20/27, para. 24, Accessed on: January, 22, 2021, at: https://www. ohchr. org/Documents/ HRBodies/HRCouncil/RegularSession/Session20/A-HRC-20-27_en. pdf.
7 International Covenant on Civil and Political Rights, Accessed on
January, 22,2021 , at: https://www. ohchr. org/en/ professional interest/pages/ccpr. aspx. 8 https://www. wionews. com/india-news/farmers-protest-2024-farmers-call-for-msp-ordinance-ahead-of-4thround-of-talks-691306 it upholds democratic values and accountability along with offering a space for societal change and civic engagement among citizens. But the question here arises is, to what extent this freedom be granted? Is it limitless? Or does the constitution circumscribe the liberty it grants to the citizens in the name of Free Speech, peaceful assembly and protest? FREEDOM OF ASSEMBLY: BOTH RIGHT AND DUTY The authorities have recently turned to restricting social media, shutting down the Internet, obstructing access to protest sites, and enforcing harsh laws against demonstrators who have been peacefully voicing their demand.
Following farmers’ calls for ‘Bharat Bandh’, several Farmer Unions, started marching towards the national capital facing barricades and what not to stop them. The demonstrators believe that their fundamental right is the right to demonstrate. But like all other freedoms, these rights are also limited rather than absolute. It is imperative to understand, that the Article 19(1)(b) is practically and functionally incomplete without freedom of speech and expression under Article 19(1)(a) of the Indian Constitution, it is so, for the very reason that each protest and assembly is an expression of dissent or disagreement of opinions among the public mass and eventually it needs an articulating voice to uphold its values. The fundamental rights ‘do not exist in silos, but as indivisible units’ which are rendered meaningless without association with one another.
9 The interdependence and indivisibility of the fundamental rights, elevates the freedom of assembly to an even higher pedestal than the right occupies independently, as an important source to manifestation of many other rights and freedoms. Free assembly thus merits constitutional protection and robust safeguards against State arbitrariness and abuse. But here’s a catch, every right has a corresponding duty and so does these rights to freedom. While article 51A outlined as fundamental duties, under its clause (c), (e) and (i) binds the citizens to:
9 RC Cooper vs. Union of India (1970) SCR 3 530
(c) uphold and protect the sovereignty, unity, and integrity of India. (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities. (i) to safeguard public property and to abjure violence. Thereby, imposing a shared responsibility on citizen, particularly those who are involved in disruptive methods, to register their dissent in the name of protest.
On the other hand, principal restriction to the right to freedom of assembly are stipulated in Article 19 (3) of the constitution which states that- nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, (a) in the interest of the sovereignty and (b) integrity of India or (c) public order, reasonable restrictions on the exercise of the right conferred by the said sub clause. ’ Any restriction imposed on the right to freedom of assembly must be in furtherance of one of these three grounds, and must also simultaneously pass the ‘test of reasonableness, necessity and proportionality’ as dictated by the Supreme Court in the KS Puttaswamy10 judgment. Thus, the right to freedom of assembly is not absolute, and is subject to certain restrictions prescribed in the constitution.
Rationalizing the need for restriction on fundamental rights, the Supreme Court observes that the constitution attempts a ‘harmonious balancing’ between individual liberty and social control. 11 WHAT IS PUBLIC ORDER?
The ongoing Farmers’ protest, has set an example better than any possible event from Indian history as the biggest protest, engaging a huge mass of people, both protestors and the general public affected directly or indirectly through these protests. Blockading highways and thus posing a great challenge to the commuters across cities all over India, and mainly around and
10 KS Puttaswamy vs. Union of India (2017) 10 SCC 1
11 KK Kochuni vs. State of Madras AIR 1960 SC 1080
within Delhi NCT, has raised serious difficulties and questions as to who’s rights are more important and to what extent one should be allowed to enjoy their rights on the expense of rights of the others? In the Madhu Limaye vs. Sub- Divisional Magisterate12 judgment, the Supreme Court of India held; “We may here observe that overlap of public order and public tranquility is only partial. The terms are not always synonymous. The latter is much wider expression and takes in many things which cannot be described as public disorder. The words public order and public tranquility overlap to a certain extent but there are matters which disturb public tranquility without being a disturbance of public order. A person playing loud music in his own house in the middle of the night may disturb public tranquility, but he is not causing public disorder. Public order...
means what the French designate order publique, defined as an absence of insurrection, riot, turbulence, or cry of violence. The expression ‘public order’ includes absence of all acts which are a danger to the security of the state and also acts which are comprehended by the expression ‘order publique’ explained above but not acts which disturb only the serenity of others. ” Thus on the given rationale, it can be concluded, that mere inconvenience caused to the commuters or local residents due to a peaceful protest may not be deemed to amount to disturbing the public order, and the assembly cannot be dispersed on these grounds. Protests, by their very nature will result in certain degree of impediment and chaos in daily life.
In fact, the right to freedom of assembly includes the right to protest in a manner, that it comes into knowledge of its target audience; otherwise the right would be rendered nugatory. 13 What perplexes the courts repeatedly is the question regarding the balancing of rights of citizens, who are not the members of the assembly with the rights of the assembly. In Railway Boards vs. Niranjan Singh,14 the Supreme Court of India held: “it is true that the freedoms guaranteed under our Constitution are very valuable freedoms and this court would resist abridging the ambit of those freedoms except to
12 Madhu Limaye vs. Sub-Divisional Magistrate, Monghyr and ors. (1970) 3 SCC 746. Also See: The
Superintendent, Central Prison, Fatehgarh vs. ram Manohar Lohia (1960) AI
13 Madhu Limaye vs. Sub-Divisional Magistrate, Monghyr and ors. (1970) 3 SCC 746.
14 Railway Board representing the Union of India vs. Niranjan Singh, AIR 1969 SC 966
the extent permitted by the Constitution. The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an end as soon as the right of someone else to hold his property intervenes. ” The verdict expressly stands in conflict with the profound rights of the freedom of assembly and protests, it collides with the right to freedom of movement of commuters as we have witnessed in the Anti-CAA protests of 2020 and the Farmers Protests of 2020-21. Commenting on the scope of right to freedom of assembly, the Court stated: “Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.
The present case was not even of protest taking place in an undesignated area, but was a blockage of public way which caused grave inconvenience to commuters. ”15 HOW DOES TEST OF REASONABLENESS AND PROPORTIONALITY COME INTO PLAY?
It is emphasized through various Supreme Court rulings and orders that mere inconvenience can’t be stated as the only reason to curb the right to freedom. There must be a sense of reasonableness both substantive and procedural for it to be permissible. 16 Substantive reasonableness requires that the restrictions must have a rationale connection with the object sought to be achieved by the law. 17 The procedural aspect of reasonableness concerns with the way in which the restrictions are imposed and the procedure provided for putting it into operation. A restriction, even if reasonable in its substance, would be unconstitutional if the method of its imposition is not reasonable.
18 The Government must make sure to provide ample of space for the protestors to have the legitimate right to assemble and present their dissent on whatever issue they choose to, it is often observe in India that the authorities very selectively provides assent to these requests to
15 Amit Sahni vs. Commissioner of Police & ors., (2020) 11 SCC 334
16 Maneka Gandhi vs. Union of India, 1978 AIR SC 597
17 Municipal Corporation vs. Jan Md. Usmanbhai AIR 1986 SC 205 (Para 20)
18 State of Maharashtra vs. Rao Himmatbhai Narbheram AIR 1970 SC 1157
protest based on their suitable agendas and political inclination. The State has often under the guise of control of public order and administration, abridged the rights specially when challenged by protest from socio-political or people’s movements and dissenting voices. Further, perspectives of public inconvenience, comfort and ease of living have often found their way into discussions on restrictions against the rights to assembly, reducing the acceptable threshold for implementing restrictions, thereby favoring specific groups of citizens and their rights over others. The vesting of unfettered or unguided discretion upon an authority to grant or refuse a permission to hold public meeting in public space would render the said rule or provision void, as it amounts to an unreasonable restriction on the right to freedom of assembly.
19 Thus imposing blanket ban on public gathering per se through an order, without recording valid reasons would breach the principles of natural justice and constitute an unreasonable restriction in the right to freedom of assembly. In a unanimous judgment by nine judges in justice K. S. Puttaswamy v. Union of India (Puttaswamy I),20 the Supreme Court of India explained the test of proportionality as- (a) the action must be sanctioned by law; (b) the proposed action must be necessary in a democratic society for a legitimate aim; (c) the extent of such interference must be proportionate to the need for such interference; (d) There must be procedural guarantees against abuse of such interference.
21 This test requires that the restrictions imposed by the State and its authorities on a Fundamental right must be such that the restrictions would be necessary in a democratic society to conquer a legitimate aim. Further the restrictions imposed must be the least invasive means to achieve the state’s purpose. 22 If a law prima facie contravenes, encroaches or limits the fundamental right to assembly, the onus shifts to the State authorities to prove that the legislation falls within
19 Himmat Lal K. Shah vs. Police Commissioner, Ahmedabad (1973) 1 SCC 227
20 K.S Puttaswamy and anr. vs. Union of India and ors. (2017) 10 SCC 1
21 Ibid.
22 In Re Ramlila Maidan Incident, Para 179, (2012) 5 SCC 1
the permissible limits imposed by any of the clauses (2) to (6) of Article 19.23 Hence, the onus does not fall on the citizens to prove that the exercise of their right is not barred by restriction; it is for the State to establish that its action falls within the purview of one of the permissible restrictions. The presumption rests in favor of citizens.24 WHAT IS THE PREVENTIVE LEGAL REGIME IN REGARDS TO THESE FREEDOMS?
We have read that the Constitution guarantees us the right to freely assemble peaceably without arms; however, there are various legal provisions which deter the exercise of these rights on ground. The right to assembly is subject to the control and curbs of the regime of intimation, permission and prohibition. “Public order has to be maintained in advance in order to ensure... it is competent to a legislature to pass law permitting an appropriate authority to take anticipatory action or place anticipatory restrictions upon particular kinds of acts in an emergency for the purpose of maintaining public order. ”25 In India, ‘apprehension for breach of peace’ is considered as threshold rather than the ‘clear and present danger’ test under American law.
26 Various States mandate the protests at the designated protests sites can be held only after securing a ‘No objection Certificate’ (NOC) and a Police Permit from the police authorities; through an application containing information regarding the protests and the identity of the organizers. The police may grant or reject permission on consideration of ‘whether it would cause any obstruction to traffic or danger to human safety or disturbance to public tranquility etc. 27’ The rationale behind acquiring all the information prior to any assembly or protest is to provide better logistic and other possible help along with ensuring availability of first aid and security. Nevertheless in practicality these provisions are construed not as prior intimation of assemblies but as securing permission from the police for the assemblies. This disclosure of information 23 Dharam Dutt vs.
UOI (2004), Para 49, 1 SCC 712 (Para 49), Also see: NK Bajpai vs. UOI (2012), Para 20, 4 SCC 653.
24 Vrajlal Manilal and Co. vs. State of MP (1969) 2SCC 248.
25 Babulal Parate vs. State of Maharashtra (AIR) 1961 SC 884 Para 28
26 Babulal Parate (Supra) para 14, 19-22, 24-30
27 Clause 3(iii) of Delhi Police Standing Order No.10/2018, "Guidelines for Organising Protests or
Demonstrations at or near Central Vista, including Jantar Mantar and Boat Club" available at http://delhipolice. nic. in/standing%20order/10. pdf provides an occasion for selective and discriminatory exercise of police power to grant permission, and amounts to prior restraint that is not content neutral. The Organization for Security and Co-operation in Europe (OSCE) Guidelines on Freedom of Assembly emphasize that legal provisions concerning advance notification should require the organizers to submit a notice of the intent to hold an assembly, but not request for permission. 28 A similar view is held by the European Court of Human Rights.
29 Ahead of the farmers' march to the national capital on February 13, Tuesday, Delhi Police on Sunday imposed Section 144 of the Criminal Procedure Code in North-East Delhi and at the borders with neighboring Uttar Pradesh to avoid any untoward incidents and ensure law and order. The city police also announced the imposition of Section 144 in Shahadara and Gandhi Nagar areas of the Capital, effectively banning large gatherings until March 11. 30 These orders maybe directed at an individual or group of people, or impose a blanket prohibition against public assemblies in a particular area. 31 Despite under the provision it is considered to be a temporal limitation, in practice, prohibitory orders under sec. 144 Cr. P. C are often re-issued consecutively upon the expiry of the initial time frame, resulting in indefinite prohibition of assemblies.
Such situations where repeated prohibition are imposed through identically worded orders as was in the case of farmers protest 2020, the Supreme Court in the matter of Mazdoor Kisan Shakti Sangathan vs. Union of India32held that such situations amounts to ‘banning’ public assemblies rather than ‘regulating’ them. 33 Along with these, police power to impose prohibitory orders, dispersal of an assembly under Cr. P. C; crowd control and excessive use of force via police, Central Armed Police forces (CAPF) the armed forces; and methods as extreme as imposition of Armed Forces Special Powers Act, 1958 (AFSPA) are few of the examples of laws or provisions that are being used in regulate or in most cases deny the rights of freedom of assembly in the country.
28 The OSCE Guidelines on Freedom of Assembly Para 118
29 Balcik & Others vs. turkey, Judgment dt 29.02.2008, Para 49
30 https://www.ndtv.com/india-news/prohibitory-orders-in-delhi-up-borders-ahead-of-feb-13-farmers-march- 5040297
31 Section 144(3), Code of Criminal Procedure, 1973
32 Mazdoor kisan Shakti Sangathan vs. Union of India (2018) 17 SCC 324
33 Ibid.
MORDERN DAY ASPECTS OF PEACEFUL ASSEMBLY AND PROTESTS
The world has significantly changed from the days of Radio and other backward sources of information and their exchange. News and information travel faster than the speed of light these days with the help of Social media sources people are much aware and woke in the present world with greater and stronger connectivity than ever before. This poses a unique and formidable challenge on the face of the governments to run in parallel with the guidelines of the constitution while administering peace and order in the society as well as justifying the rights of the protestors and those involved in the peaceful assemblies.
While on one hand where we saw in the recent Farmer’s protests the use of various tactics by the government to ‘manage’ the protests such as shutting down of internet access and networks, dispersal of crowd by way of lathi charge, water cannon, rubber bullets, smoke bombs, tear gases, etc. on the other hand farmers have been seen even better prepared this time with shielded tractors and front-liners. It’s a direct tackle between the government and the common farmers standing upstraight for the demand of MSP along with other demands on the list for their welfare. To maintain public order the ‘Kinetic impact projectiles’ (KIPs) and other projectile types (rubber bullets and tear gas shells) have been used against demonstrators, resulting in thousands of injuries caused to the farmers, three of which are permanent disabilities like losing eyes to sight, as well as numerous fatalities.
KIPs have frequently been used against nonviolent protestors, to scatter gatherings, or as a means of coercion and punishment. The authorities have inflicted long-lasting bodily and psychological harm on people, exercising their right to peaceful assembly, along with other less deadly weaponry which directly violates their Right to life under Article 21 of the Indian Constitution. It is worth considering for general masses, that the right of assembly and protest in order to convey the dissent and demands of a common person is way far important than the validity and rationality of their demands. In the age of social media, it is quite easy to formulate and manipulate one’s thought and spread misinformation in order to set a notion into the public domain, but it’s the duty of each citizen of the country to protect such rights of freedom and put them ahead of one’ own convenience.
SUGGESTIONS &
CONCLUSION
Following suggestions are recommended for the authorities to undertake in order to perform in compliance with the best practices for securing the right to peaceful assembly. 34 (1) Amendment of various provisions for instance, section 129 to 148, of the Code of Criminal Procedure, 1973 to ensure compliance of the grounds of restrictions according to Article 19(3). (2) Direct Law Commission of India to review comprehensively, all relevant central and state laws curbing the right to freedom of assembly, and recommend legal reforms. (3) Provisions of ‘permission before assemblies’ must be replaced by ‘notification regime’. (4) Prevention from imposition of terrorist activity sanctions or criminal proceedings through various acts on members of assembly or protest.
(5) Strengthening of right to privacy in absence of Data Protection Law in respect to filming of public assemblies on recommendation of the Supreme Court. (6) Recognize the vast ambit of right to freedom of assembly beyond traditional ways in the digital era, and ensure prevention of arbitrary shutdowns of internet services. (7) Ensure public assemblies are not denied or dispersed solely on the basis of presumption of violence or mere public inconvenience. (8) Police authorities and other armed authorities must be trained and oriented adequately to de-escalate the situation peacefully and with minimal use of force (as a ‘last resort’). (9) Establishment of proper accountability mechanism to control arbitrary, disproportionate and excessive use of force by police personnel.
(10) The NHRC and SHRCs should be made vigilant in order to take suo moto investigation of public assemblies and the actions of the authorities taken in response to the 34 Assessing India’s Legal Framework on The Right To Peaceful Assembly By Vrinda Grover: Resource paper for the International Center for Not-for-Profit Law (ICNL), Published in Dec 2021 agitations. In order to ensure that no violation of human rights and freedom takes place that is not in accordance with the law. It is evident, from the analysis of both International and Domestic laws and obligations that indeed, the right of freedom of assembly plays a crucial role in molding a nation’s future. Both the legislature and the judiciary along with the executive body of a country are obligated to ensure that these rights are not violated by them against the citizens in any respective sense.
Right to protest is one of the most powerful expressions guaranteed to the people of India. If the same is taken away, merely on the ground that the object of agitation is facing a judicial scrutiny, it would not only be unfair and unjust but also will lead the country to the path of despotic rule wherein the slightest act of dissent will be looked down upon and actively discouraged. Judicial scrutiny, in such a case, can be ill-motivated to curb protests. As much as it is the obligation of the authorities, it is also the duty of the citizens to express their dissent in such a way to not violate the rights of others in the spirit of the Constitution. It is inevitable to not bring chaos while aspiring a change, yet harmonious conduct on the part of both the protestors as well as the government authorities is expected.
At this point it is critical to highlight the recently ended 21 day long ‘Climate fast’ and protests being going on in Ladakh for the demand of Statehood, lakhs of people of Ladakh have shown a true example of ‘peaceful assembly’ but the question to ask is, did we or the main stream media houses cared much? Did the government care enough? In the current political scenario of the country, it is imperative to make sure that the voices of each and every citizen is being heard, above all it is the duty of the majority, and those at the higher pedestal of the society to ensure that in the light of the Preamble of our Constitution, each minority irrespective of which corner they belong to is given the voice which is being heard and not suppressed by any sort of political will or ideology.
It is worth acknowledging the fact that the Farmers in India are being heard all around the world and are continuously under dialogue with the government authorities, this shows that India has always and will always hold on to its foundations of fundamental rights as the basic right of the citizen, and the spirit of the Constitution.