“Buri hai aag pet ki, bure hain dil ke daag ye, na dab sakenge ek din banenge inquilaab ye”

While every Indian citizen proudly pays respect to our national struggle for freedom from British rule, what seems to be overlooked is the methodology adopted for achieving the same. Since the freedom fighters were devoid of weapons, money and political power, they met the might of the State – the British government – with the only weapon they had, that of mass peaceful protests. 

It was these peaceful protests that included blocking roads, civil disobedience, general strikes, satyagrahas and other symbolic acts, that ultimately resulted in the displacement of the British government. 

Even after Independence there have been several instances of protests over the course of the last seven decades, for instance the Chipko movement (April 1973, triggered by the government’s decision to allot a plot of forest area in the Alakananda valley to a sports goods company); the Great Bombay textile strike (1982, in which nearly 2,50,000 mill workers and more than 50 textile mills went on strike); the Narmada Bachao Andolan (1985, a movement against the development of the Narmada Valley project). 

In more recent times, some of the noteworthy protests include the Shaheen Bagh protests (against the CAA legislation) and the farmer’s protests against the three farm bills. Still more recent were the large-scale protests by animal activists and the public that erupted following an order by the Supreme Court on stray dogs.

The results of all these protests varied. While some led to the succumbing of the state, others ended up failing. However, it must be remembered that the “right to protest” is to be preserved and shielded at all costs, subject, of course, to the reasonable restrictions imposed thereon by the Constitution under Article 19(3).

The weapon of peaceful protests has been, since time immemorial, the only means for the state to secure the acceptance of the will of the people. The freedom and importance of protests, in a democracy, has been recognised and protected by the framers of our constitution by making it a fundamental right under Article 19(1)(b) which allows citizens to assemble peaceably and without arms. 

A peaceful protest is essentially all that a citizen possesses to show dissent and discontent against the law and policies of the state.

Till now the approach of the judiciary, with regard to the right to assemble peaceably and without arms has been to guard the same from arbitrary executive interference and in fact, direct the state to aid and assist this right. 

For instance, in the case of In re Annadurai (1958) Mad. 865, it was held that section 41 of the Madras City Police Act, 1888, did not violate Article 19(1)(a) & (b), as the section laid down certain conditions to be observed by the commissioner before passing an order prohibiting public meeting, and one such condition was that he considered such prohibition necessary for the preservation of public peace or public safety. 

Although no time limit was fixed for such an order, having regard to a convention for over three years such orders had been limited to 14 days at a time. The court, however, observed that an order exceeding 14 days would be invalid. In Himmatlal v. Police Commissioner, Ahmedabad (1973) 1 SCC 227, the Supreme Court held that the state could not impose unreasonable restrictions upon the right to hold public meetings which flows from Article 19(1)(b) & (d). 

In Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324, the Supreme Court held that the state cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The state can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order. 

It was further held that the state and the local authority have a virtual monopoly of every open space at which an outdoor meeting can be held. If, therefore, the state or municipality can constitutionally close both its streets and its parks entirely to public meetings, the practical result would be that it would be impossible to hold any open-air meetings in any large city. 

The right to protest has, thus, not only been recognised as a fundamental right under the constitution but has also been held to be crucial in a democracy which rests on participation of an informed citizenry in governance. It has been held that this right strengthens representative democracy by enabling direct participation in public affairs where individuals and groups are able to express dissent and grievances, expose the flaws in governance and demand accountability from the state authorities as well as powerful entities. 

This right is essential in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities. 

This protection, so far secured and safeguarded by the judiciary and the state under the aegis of the judiciary, has, however, been missed in the case of the Citizenship Amendment Act protests. Contrary to past practice, no mercy has been shown by the state or by the courts and the process has been allowed to become the punishment. The state failed to aid and facilitate the peaceful protests resulting in a riot. Now several students who had participated in the protests have been arbitrarily incarcerated following an FIR lodged under the Unlawful Activities Prevention Act and as a result thereof, they have been in prison, as undertrial prisoners, for the last five years. 

Repeated adjournments and denial of bail to undertrials has sent the chilling message across the society that one runs the risk of indefinite incarceration for participating in, organising and holding peaceful protests. 

The questions one must ask oneself are: is it illegal to peacefully protest against a legislation? Is it illegal to voice dissent? Is it illegal to organise peaceful protests? If the answer to these questions is in the negative, then there is no justification for the treatment that has been meted out to Umar, Sharjeel, Gulfisha, Meeran and the others for participating in and organising protests against a legislation. 

Peaceful protests gave us our treasured freedom from British rule when all else failed. They form the bedrock and are the essence of our democracy. It may thus be wise to remember that democracy isn’t something that is lost suddenly, it is lost bit by bit, with the scuttling of dissent coupled with the silence of the public. 

If the state is allowed to suppress all voices of dissent expressed in the form of protests, then it will not be long before we completely lose our democracy.  

Rashmi Singh is a Delhi based lawyer practicing primarily in the Supreme Court of India & the Delhi High Court.

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