Guest Post by Pallavi Mohan
What is protesting and is it allowed in India?
Protesting is the practice of opposing something (in this case a government policy) vocally or in writing. A single person can do it or a group of people who commonly oppose the same thing. Examples of protests would be the recent Anti-CAA protests and the anti-Farm laws protests in India.
Article 19(1)(a) protects the freedom of speech and expression whereas Article 19(1)(b) of the Indian Constitution protects the freedom to assemble peaceably and without arms. However, the government can place reasonable restrictions on these freedoms to protect the integrity and sovereignty of India and to preserve public order [Article 19(2) and(3)].
How has the Supreme Court defined the right to protest?
While the Supreme Court has upheld the constitutional right to peacefully protest, it has observed that:
(a) the right to peacefully protest is a constitutional right and this right should not be frustrated by the State by exercising its executive or legislative powers and passing orders or taking action in the name of reasonable restrictions [Ramlila Maidan Incident v. Home Secretary, Union of India].
(b) rights of protestors have to be balanced with those of the people residing in the areas where protests are taking place. The police should devise a proper mechanism and lay down parameters for the limited use of the area for peaceful protests and demonstrations [Mazdoor Kisan Shakti Sangathan vs Union of India].
(c) the right of the protestors must be weighed against the right of the commuters, which is why public roads and public areas cannot be occupied forever by an indeterminable number of people [Amit Sahni v. Commissioner of Police].
What are some of the Indian laws that restrict protests?
Peaceful protests are not restricted in India but there are instances where the assembly of protesters can become unlawful and that is prohibited by law.
Section 141 of the Indian Penal Code, 1860 (IPC) defines an unlawful assembly to be an assembly of 5 or more persons with a common object to –
- intimidate the Central or any State Government or Parliament or the Legislature of any State or any public servant by a show of force;
- resist the execution of any law, or any legal process; or
- commit any mischief or criminal trespass, or other offence; or
- forcefully take away someone’s property, or any person’s enjoyment of a right of way, or their use of water or any other right of which they are in possession or enjoyment, by force;
- forcefully compel a person to do something they are not legally bound to do.
Section 142 read with 143 of the IPC punishes any person who knowingly joins an unlawful assembly.
Section 144 of the Code of Criminal Procedure (CrPC) allows a Magistrate (District, Subdivisional or Executive Magistrate) to issue orders prohibiting the assembly of 4 or more persons in an area, if they think that the assembly will cause danger or nuisance. Such orders can remain in force for up to 2 months but the State Government can extend their validity to 6 months.
Prohibitory orders under Section 144 of CrPC are often imposed to prevent a group of protestors from assembling. Such orders were used extensively across the country for stifling Anti-CAA protests.