Right To Protest Not Lost Merely Because Same Issue Is Pending Before A Constitutional Court : Andhra Pradesh HC

"Approaching a constitutional court for redressal of grievances ipso facto would not disentitle a citizen from protesting in relation to the same subject-matter. We say for the reason that when the Court would be looking at the dispute, it would examine the matter only from a legal lens, based upon settled parameters of adjudication; whereas, the purpose of protest is to draw attention of the government to an issue."

It may be noted that the Supreme Court had taken note of the same issue in the context of recent farmers protest. In October last year, a bench led by Justice AM Khanwilkar made a preliminary observation that a person can't hold public protests in a sub-judice matter and sought the assistance of the Attorney General for India to decide the matter. However, a different bench led by Justice SK Kaul made an oral observation while considering another matter related to farmers protests that the Court was not against right to protests even if the issue was pending before the Court.

What was the case before AP HC?

The petitioner filed the writ petition relating to grievance towards pay scales. The petitioner sought declaration that the G.O.M.s No. 1 of the Government of Andhra Pradesh dated 17.01.2022 was illegal and arbitrary and contrary to provisions of the Andhra Pradesh Re-Organization Act, 2014 and the Constitution of India.

The Advocate General contended that when the Court has already been called upon, by way of the writ petition filed by the Employees' Union, it was not proper for the Union to give a call for, or proceed on strike, which could bring the State's administrative machinery to a grinding halt. He submitted that though Article 19(1)(a) guarantees to all citizens right to freedom of speech and expression, it is not absolute.

The Advocate General relied on TK Rangarajan v. Government of Tamil Nadu, 2003 to submit that employees have no fundamental right to strike as it is a weapon that is mostly misused resulting in chaos and total maladministration.

However, the Bench noted that in Mazdoor Kisan Shakti Sangathan v. Union of India, 2018, it was held that the right to peaceful protest is recognized as a fundamental right under the Constitution and it rests on the participation of an informed citizenry in governance. It is crucial as it strengthens representative democracy by enabling direct participation in public affairs.

On the basis of the aforementioned cases, the Bench added that approaching a Court would not prohibit the person in question from protesting in a legally permissible manner, subject to the caveat being the extant rules and regulations guiding the person concerned, inclusive of his status, if so, as a government employee.

The writ petition was not decided on merits and it was directed to be listed before the appropriate bench as the matter in issue would not come under their roaster. The Bench further clarified that the remarks made are in the nature of obiter.

Cause Title: K V Krishnaiah v. State of Andhra Pradesh

Citation: 2022 LiveLaw (AP) 21