Fundamental Right to Peaceful Protest
As authorities worldwide grapple with swelling demonstrations over issues like political rights and racial justice, a UN committee reaffirmed that protesting peacefully, online or in person, is a fundamental human right.
• The Preamble of the Indian Constitution ensures to all its citizens the liberty of expression.
• Freedom of the press has been included as part of freedom of speech and expression under the Article 19(1)(a) of the Indian Constitution.
• Article 19 of UDHR: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
International Covenant On Civil And Political Rights (ICCPR)
ICCPR is a multilateral treaty adopted by the United Nations General Assembly (UNGA).
The ICCPR is monitored by the United Nations Human Rights Committee.
The ICCPR is part of the International Bill of Human Rights, along with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR).
It became effective in 1976.
Article 21 of ICCPR: The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order ,the protection of public health or morals or the protection of the rights and freedoms of others.
The independent experts on the Human Rights Committee published a fresh interpretation of the right of peaceful assembly, offering comprehensive legal guidance about where and how it applies and also outlining governments’ obligations.
The committee, made up of 18 independent experts, is tasked with monitoring how countries implement the International Covenant on Civil and Political Rights (ICCPR), which under Article 21 guarantees the right to peaceful assembly.
The essence of democracy is the right to have an alternative opinion and to agitate for its acceptance.
The term ‘Satyagraha’ originated in a news-sheet “Indian Opinion” in South Africa in 1906.
It was an adaptation by Mahatma Gandhi from one of competition entries in South Africa.
Satyagraha went beyond the concept of ‘passive resistance’.
The essence of Satyagraha was not aggression, but non-violence. Its force lay in truth and the ability to struggle for it.
India attained its Independence through peaceful struggle.
Passive resistance, civil disobedience and Satyagraha are well known instruments of protest.
They essentially involve peaceful and non-violent methodologies of protest.
If a protester is within his constitutional rights to organize a peaceful protest, he is equally within his rights not to accept an illegal order denying his right to protest.
He runs the risk of being punished if the order is held to be lawful.
But when a protester violates sec. 144 of the Code of Criminal Procedure, he is always willing to suffer a punishment.
The law is that every time his fundamental right to protest is intercepted by the State he must immediately comply with the order or would run the risk of being liable for contributory negligence.
A citizen cannot be compelled to abdicate his fundamental rights merely because the State decides to restrict his right to protest.
Re-RamlilaMaidan Incident vs. Home Secretary of India And Others, 2012
o This judgement of the Supreme Court lays down a landmark law in as much as it upholds the right to protest as a fundamental right of speech and assemble.
o However, it shakes the foundation of the fundamental right by laying down a highly doubtful proposition that once the right to protest is denied the protester must meekly accept the denial or run the risk of a contributory negligence to the police oppression.
Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitation are the basic features of a democratic system.
The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the government on any subject of social or national importance.
The Government has to respect, and in fact, encourage exercise of such rights.
It is the abundant duty of the State to aid the exercise of right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions.
The right to peacefully protest is subject to just restrictions is now an essential part of free speech and the right to assemble. Additionally, it is an affirmative obligation of the State to make that exercise of this right effective.
The fundamental right enshrined in the Indian Constitution itself being made subject to reasonable restrictions, the laws so enacted to specify certain restrictions on the right to freedom of speech and expression have to be construed meaningfully and with the constitutional object in mind.
PEPPER IT WITH
The Preamble of ICCPR; Article 1: Right of Self-Determination of ICCPR; Universal Declaration of Human Rights; National Human Rights Act, 1993, RamlilaMaidan Case