Protest Is A Fundamental Right- Section 19

Is Protest “Freedom of Speech” by Article 19 (1) - & Article 19 (2)

Can there be an Absolute Ban on “Protest”

"What Supreme Court Says on – propagation of one’s idea and right to dissent"

The Constitution’s Article 19 and sub-clauses state people’s right to dissent, express vision, and belief on a subject with freedom. Below is a case analysis basis the extent of usage and denial of article 19 clauses, as per the Supreme Court of India.

Article 19(1)(a) & 19(2)) (b) - Freedom of Speech and Expression

Right to dissent and protest (2018) SCC 324

Driven by the apprehension of the test of “breach of peace”, applied by repeated order by Police under Section 144 Cr PC, prohibiting activities like holding of public meetings, processions, and demonstrations, assembly of five or more people, making of speeches, etc., without written permission in close vicinity of Parliament House, North and South Block. An order passed under Section 144, remains to enforce for 60 days, repeated orders subsequently passed created an atmosphere where resembling that there is a complete ban on protests. The said order was passed in the greater interest of safeguarding the larger public interest – like prevention from disturbance to tranquility, prevention from obstruction to traffic are the namely causes. The people intending to stage dharna were to take written permission from the authorities.

The Honorable Supreme Court directed that the authorities could formulate proper and requisite guidelines and the Commissioner of Police, New Delhi was directed to undertake this exercise, in consultation with authorities within two months

(Cr.P.C 1973, S. 144 Mazdoor Kisan Shakti Sangathan vs Union of India (2018) SCC 324, AIR 2018 SC 3476

Conflict Between Fundamental Rights of Two Individuals or Classes

>> Primacy of Public Interest over Individual Interest <<

The right of people to hold peaceful protests and demonstrations etc. is a fundamental right guaranteed under Article 19(1)(a) and Article 19(1)(b) of the constitution. But holding the protests in a way that causes serious discomfort to residents and harassment to the public is not justified, wherein several examples of such protests have been seen.

Jantar Mantar in New Delhi is a place chosen for protests and holding demonstrations and is also a place earmarked by authorities for this purpose.

Civil Appeal No. 862 of 2018

The application was filed by respondents 1 to 7 residents of Jantar Mantar Road (the stretch between Parliament Street and Ashoka Road) , who have been residing for decades. The residences included various state guest houses as well, like a guest house of Kerala.

In the grievance, it was enlisted that, the protests organized by several categories of groups, political and non-political, are not temporary, but rather the protestors have put up tents and people have been staying for many months.

• The consequence of the protest is, noise and area pollution
• Sanitation and hygiene risks and adverse health effects the residents and children

NGT Action after hearing the appeal

• Directed to remove all makeshift structures, loudspeakers, and public address system
• Remove the waste lying in the area
• Directed to immediately stop all activities of dharna, assemblies, speeches, and use of loudspeakers
• Respondents should shift the area of protest to other locations
• Instructed Govt of Delhi to file the compliance report before the Tribunal within five weeks from the date of judgment

Civil Appeal No. 862 of 2018

Any appellant aggrieved by the order of NGT, stated that she is a sufferer of rape by a police officer in 2010, and to attract the attention of the person concerned for redressal of grievance, she is sitting on dharna. Due to the ruling by NGT, her fundamental right is affected.

Civil Appeal No. 864 of 2018

Indian Ex-Servicemen Movement, which is fighting for the rights of ex-servicemen, which had been holding Dharnas, assemblies and speeches etc, stated that it was precluded from raising its voice because of the NGT’s order.

Contended for Usage of Section 144 CrPC

The provision of Section 144 Cr P C, could be used only in an emergent situation when there is sufficient ground for proceeding under that section and there is a need for immediate prevention or speedy remedy is desirable. Section 144 CrPC usage isn’t justified for very prolonged and repeatable usage.