THE NORTHCAP UNIVERSITY

General Proficiency II
 RIGHT TO PROTEST VS RIGHT TO MOBILITY

- Kunal Solanki

INTRODUCTION:

Parliament passed three agricultural bills, namely the Trade and Trade in Agricultural Products
(Promotion and Facilitation) Bill, the Essential Commodities (Amendment) Bill and the Farmers
(Empowerment and Protection) Agreement on Price Assurance and Agricultural Services,
collectively known as the Farmers of 2020. of India which are passed from the Lok Sabha and
Rajya Sabha on 17 September 2020 and 20 September 2020 respectively with the assent of the
President of India on 27 September 2020.

Fears have also become in the minds of farmers that these acts will systematically end MSPs
among other concerns. This situation ensured farmers' protests, which initially started in the
states of Haryana and Punjab, but soon reached the borders of the national capital, Delhi.
However, the interest of this article is not to get into the agricultural laws, but to deal with
another important aspect of the protest; the struggle between the right to protest and the right to
move.

Three categories of petitions were filed before the Hon'ble Supreme Court regarding the Farm
Bills and the farmers' protest, one of which was filed by the residents of the neighboring regions
of the protest site due to the inconvenience caused to them by the restriction of their fundamental
right to move freely within the territories of India and also the right to conduct business and
trade. Although the court did not order on the matter, it reignited the controversy that was
highlighted earlier in 2020 during the Shaheen Bagh protests against the Citizenship Amendment
Act 2020 (CAA).

CONSITUTIONAL PROVISIONS:
RIGHT TO PROTEST-

The foundation of independent India itself rests on the protests during the freedom struggle,
making protests an indispensable part of Indian culture and its rich history. A protest in the legal
sense can be defined as "a formal statement by which a personal objection or disagreement with
the action is made" The right to protest is a fundamental right enshrined in Article 19 paragraph
1 letter a) and Article 19 paragraph 1. b) and Article 19 paragraph 1 letter (c) Constitution of
India. They say that;

ARTICLE 19– Protection of certain rights regarding freedom of speech etc.

(1) All citizens shall have the right

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms

(c) to form associations or unions;

Although there is no explicit mention of the word "protest", these three articles together provide
the right to protest, which gives every citizen the right to protest peacefully against any matter
that is not in the social or national interest. The fundamental right to peaceful protest is
guaranteed by the supreme court from time to time. A well-known authority in this regard is the
incident of Ramlila Maidan v. Home Secretary, Union of India and Ors., in which the Supreme
Court emphasized the importance of the right to protest in a democracy. In the words of Justice
B.S. Chauhan;
"Citizens have a fundamental right to assembly and peaceful protest that cannot be removed by
arbitrary executive or legislative action"

However, as the saying goes, "with rights come responsibilities." Therefore, certain requirements
must be met in order to exercise the fundamental right to protest. Protests should not destroy
public property and should be in accordance with the legal order. Under Article 19(2), Article
19(3) and Article 19(4), there are certain limitations on the exercise of the right to protest which
are;

In the event of a threat to state security,

Threat to the integrity and sovereignty of India,

Violation of public order,

When Contempt of Court Occurs

When a friendly relationship with foreign states is threatened.

THE RIGHT TO MOBILITY-

The right to mobility is enshrined in the Constitution in Article 19 paragraph 1 letter d), which
says;

All citizens have the right

(d) move freely throughout the territory of India;

In the case of Kharak Singh v. State of U.P. The Supreme Court observed that the right to move
freely within the territory of India includes the right to movement, which means the right to
move whenever and however one wants.

However, in certain cases, the two most important fundamental rights guaranteed by the
Constitution conflict. Peaceful protest in a public space is a fundamental right of protestors, but it
may violate the right to mobility of another who is inconvenienced by blocking that public place.
One of the recent and landmark judgments was on the issue of Shaheen Bagh protests.

THE SHAHEEN BAGH JUDGMENT: THE BALANCE BETWEEN DEMOCRACY AND

DISSENT:

PROTESTS IN SHAHEEN BAGH

The enactment of the controversial Citizenship (Amendment) Bill, 2019 led to widespread
agitation and subsequent protests in various parts of the country. One of the strongest centers of
anti-CAA protests was Shaheen Bagh, which attracted crowds in large numbers who provided
them with basic amenities at the protest site. This build-up of protesters led to the blocking of
almost 1 kilometer of the six-lane highway, which unsurprisingly caused a lot of inconvenience
to the residents of the place as well as commuters using the route of the protest site.

Subsequently, a petition was filed in the Delhi High Court to order the protest to be moved to
another "permitted" protest site, which was ultimately dismissed by the High Court. Later, a writ
petition was also filed in the same court directing the authorities who were the respondents in the
case to investigate the grievances raised by the petitioners and address them in accordance with
the law and relevant government policies, but did not issue an injunction to settle the protest site
vesting all powers in by the hands of opponents. Despite the High Court's orders, the protests
continued and eventually the matter reached the Supreme Court.
SUPREME COURT JUDGMENT: SETTING A PRECEDENT-

"Democracy and dissent go hand in hand, but demonstrations expressing dissent must only be in
designated places" - Excerpt from the Supreme Court judgment

In view of the continuing protests and the ambiguity of the directions issued by the Delhi High
Court, Mr. Amit Sahni filed a Special Leave Petition (SLP) in the Supreme Court. The Supreme
Court finally delivered its judgment in the case of Amit Sahni v. Commissioner of Police and
Ors. on October 7, 2020.

The court noted that protests under colonial rule, which were repressive in nature, were not
suited to a democratic society. The Constitution, with its Bill of Rights, also laid down certain
obligations to the citizens to be fulfilled;

"The former way and manner of dissent against colonial rule cannot be compared to dissent in a
self-governing democracy"

Heavy reliance was placed on the case of Mazdoor Kisan Shakti Sangathan v. Union of India and
Ors., which held that each fundamental right conferred on citizens by the Constitution does not
exist in isolation and a balance must be struck with all other conflicting rights. . He ruled that
while there is a fundamental right to protest against the law, public places cannot be occupied for
an unreasonable amount of time in an irresponsible manner;
"While we appreciate the existence of a right to peaceful protest against the law, we must make it
clear that public roads and public spaces cannot be occupied in such a manner and without too
much restraint"

The court ultimately ruled that occupying a public place for protests is not acceptable and it is
the administration's responsibility to prevent such obstructions and interference.

CRITICAL ANALYSIS AND CONCLUSION: THE LARGER ISSUE OF DISSENT V.

EFFECTIVE FUNCTIONING IN A DEMOCRACY

The judgment was not limited to striking a balance between the right to protest and the right to
mobility, but also addressed the larger issue of balancing the voice of dissent and the effective
functioning of democracy. There has also been criticism of the judgment on various issues.

One of the criticisms is the geography of Shaheen Bagh, which is located in a Muslim-dominated
community. It is evident that for the minority to fight against the system and have their voice
heard at the top, it is a comfort to work in their backyard. It was the duty of the court to ascertain
the importance of the site of the protest and to recognize that the protest was not based on
governmental convenience. Public places should not only function as common ground, but as a
place where citizens' demands can be heard and where they feel safe and comfortable.

International forums have recognized that protests carried out in public places should be
considered "legitimate". The European Court of Human Rights states that there should be a
degree of "tolerance" when it comes to the inconvenience caused by protests to normal life.
Censoring protests, especially when it is the only way to vote, can threaten the right to freedom
of expression.
The right to freedom of expression forms the core of every democracy, the protection of which
should be a priority for the state, and the judiciary is also a part of the state. Protests will
inevitably cause some level of discomfort, but the right to express oneself is essential to a
democracy and should not be censored. Restrictions such as those shown in the present case
should not be imposed because protests should not be organized only where the powerful wish it
to be and should be discouraged from restricting the use of public places for protests.

In conclusion, the judgment will certainly have a significant impact on future protests and the
right to protest in the nation. This will become a precedent for the future and may have negative
consequences leading to the weakening of the basic structure of the home to the largest
democracy. However, its implications and consequences will only be revealed in time.