License To Protest: Examining The Role Of Courts In Safeguarding India's Right To Dissent

The report scrutinizes over 60 judgments from the Supreme Court and High Courts to highlight the evolving judicial stance on the right to protest, a vital pillar of democracy. Although constitutionally protected, the right to protest has increasingly been constrained by legal regulations that either criminalize protests or impose stringent conditions through police authorities, often undermining this fundamental right.

Curtailing the Right Through Public Interest Litigation (PILs)

Justice (Retd.) Madan B. Lokur emphasized a growing concern about the misuse of Public Interest Litigations (PILs) to suppress protests rather than uphold the rights of vulnerable communities. He cited the Supreme Court's Shaheen Bagh judgment as an example, noting that the court was approached to curtail the protesters' right by emphasizing the disruption caused to others' freedom of movement. Justice Lokur also pointed out the Supreme Court's avoidance of resolving the main issue in both the Shaheen Bagh and farmers' protests by resorting to mediation rather than legal adjudication. The report echoes these sentiments, showing how courts sometimes decide cases without involving protestors in proceedings, leading to outcomes where the right to dissent is not adequately considered.

Differential Treatment of Protests Based on Politics

Justice (Retd.) Dr. S. Muralidhar stressed the need for courts to consider the political and social contexts of protests. He observed that courts react differently depending on the nature of the protest and who is behind it. Comparing the Shaheen Bagh protests to the farmers' protests, he remarked, “When protests are for politically unpopular causes, the Court will come down heavily on it, using the justification of law and order, security, or public order." This differential treatment is a reflection of how the politics surrounding protests, and the identity of the protesters, can significantly impact judicial outcomes.

Criminalization of Protests

A major finding of the report is the growing trend toward criminalizing protests. This includes invoking anti-terrorism laws, laws regulating public infrastructure (such as highways and railways), and using legal provisions like Section 144 of the Criminal Procedure Code (CrPC) to clamp down on dissent. According to Sanjay Parikh, Senior Advocate at the Supreme Court, while challenges to the misuse of Section 144 have come before the courts, the response has been a "consistent dilution of safeguards against its abuse.”

State legislations requiring prior police permissions for protests further exacerbate these constraints. The report reveals that while courts sometimes support the right to protest, they seldom challenge this "permission-based regime," allowing police excessive control over the public's right to assemble.

Meera Sanghamitra and Dr. Alana Golmei highlighted this issue, stressing the arbitrary use of police permissions. Meera questioned the necessity of police permissions, asserting, “When the right to peaceful protest is a fundamental right, why does one need permission? An intimation to the police should suffice.” Dr. Golmei emphasized the challenges faced by North East communities in organizing protests, citing privacy violations and intimidation tactics, such as requiring detailed information about student leaders and protest attendees. In some cases, like those linked to the Citizenship Amendment Act (CAA), High Courts have recognized these police excesses, leading to rights-affirming judgments.

Judicial Interpretation of Restrictions on Protests

The report raises concerns about how courts interpret restrictions on protests under Articles 19(2) and 19(3) of the Constitution. These provisions allow for reasonable limitations on free speech and assembly in the interest of public order. However, courts often defer to executive concerns without fully assessing whether these restrictions are justified, necessary, or proportionate. In many cases, courts accept the government's claims regarding the threat of violence or law and order disruptions, rather than rigorously scrutinizing these assertions.

The improper use of Section 188 of the Indian Penal Code (IPC) to criminalize protestors is another issue flagged in the report. While some courts have been critical of this misuse, others have uncritically accepted the government's claims, leading to inconsistent outcomes. The report urges the judiciary to adopt a more critical stance in such cases and to ensure that restrictions on protests are the least restrictive means of maintaining public order.

Balancing the Right to Protest with Public Order

The report concludes by calling for a more balanced approach to regulating protests, one that ensures public order concerns do not overshadow the fundamental right to dissent. It stresses the need for courts to scrutinize restrictions more closely, ensuring they are both necessary and proportionate to the situation. While there have been instances where courts have deferred to government concerns, the report also highlights several High Court rulings that have mitigated the harshest consequences of criminalizing protests.

The Samvidhan Series report recognizes that courts play a crucial role in safeguarding the right to protest, but it also emphasizes the need for the judiciary to protect this right against increasing criminalization and arbitrary executive actions. As the second volume in Part III's annual series, this report underscores the importance of a judiciary that is vigilant in upholding constitutional rights, even when faced with pressures to curtail civil liberties in the name of public order.

Part III Action Research & Resource Centre is a Delhi and Patna-based organization committed to protecting constitutional rights. The organization addresses identity-based violence, discrimination, and the rights of marginalized communities, including gender-based violence, caste atrocities, and the rights of Adivasis and forest-dwelling communities.