Increasingly, protests are seen and viewed, by executive authorities, even courts through a political lens. Which protests, who are the protesters, what is the issue being protested and which states (and by implication) which state governments get up-ended by widespread protests, by extension which protests must be curtailed which “allowed.” Never mind that this right remains enshrined –at least on paper– under Article 19(1)(a)[1] and 19(1)(b)[2] of the Indian Constitution. Dissent is one of the fundamental pillars of any democracy and this is incorporated as fundamental right under the Indian Constitution. However, an increasingly elite and autocratic state is impatient with sloganeering marches on its streets.

A tale of two views: Courts restricts protesters rights

On August 23, the Bombay High Court restrained the opposition, Maha Vikas Aghadi (MVA) from carrying out a state-wide “Bandh” in Maharashtra proposed on August 24, 2024. The said “Bandh” was called by MVA, a political coalition of Congress, NCP (Sharad Pawar) and Shiv Sena (UBT) in the state to protest against the failure of state government in handling the twin Badlapur sexual abuse case. A division bench of Chief Justice Devendra Kumar Upadhyaya and Justice Amit Borkar held that “Until further orders, all parties are restrained from proceeding with the bandh on August 24 or any other subsequent date.” The high court passed this order against a ‘Public Interest Litigation (PIL)[3] was filed seeking a declaration that the proposed bandh is illegal and unconstitutional. Following the high court ruling on August 23, the MVA withdrew its Maharashtra Bandh call but leaders and protesters still held sit-ins state-wide.

This decision of the Bombay high court needs scrutiny in view of the several weeks’ longs protests in West Bengal where protesters of all colours and hues have been taking to the streets to express anguish at the ghastly and violent murder-rape of a young doctor at the RG Kar hospital in early August. In fact only day before yesterday, on August 28, the state unit of the Bharatiya Janata Party (BJP) in West Bengal not only called for a state wide 12-hour-long “Bandh” to protest against the police action against the demonstrators during a march to the state secretariat. This was despite the violent attack by protesters in the BJP sponsored protest march on August 27 a day before. (The march to West Bengal Secretariat ‘Nabanna’ was organised by the ‘Paschim Banga Chatra Samaj’ and other organisations, outfits that are reportedly close to the BJP). Contrary to the decision of the High Court in Maharashtra, the Calcutta High Court rejected the ‘PIL ‘filed against BJP’s 12-hour bandh even as just four days before, in Maharashtra, the Bombay high court restrained the opposition parties from organizing a “Bandh” against a BJP-Shiv Sena (Shinde) government.

Which protest is in, which out

The dominant Indian political elite is impatient with and contemptuous of democratic protests when they question government policies, be it the enactment of the Citizenship Amendment Act (2019) or the three contested Farm Laws. The right under Article 19(1)(a) and (b) includes the right to express dissenting opinions, criticize the government, and engage in peaceful protests and demonstrations. Though not absolute and subject to reasonable restrictions under article 19(2) 3 in the interest of various factors such as public order, security and morality, India has itself had a rich tradition of peaceful dissent and non-violent protest like “Satyagraha (1906)”, the non-violent resistance by Mahatma Gandhi in the early 20th century. All pre-Independence.

However, this fundamental right protected by the Constitution has been effectively limited, even curtailed by the near-permanent imposition of Section 144 of the Code of Criminal Procedure (Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023). No better example than the curtailing of the Constitutional vision by executive diktat. If Delhi’s protest site(s) has been confined to a completely barricaded Jantar Mantar, Mumbai’s Hutatma Chowk is also out of bounds for protesters except possibly for rare exceptions on a Sunday when the central business district is shut anyway! Or else it is a small demarcated spot at Azad Maidan where too visibility for protesters is negligible. Anywhere else in the larger metro towns and the police, aided often by orders of high courts limiting protest sites, swoop down on protesters. In fact, any meeting, even in hall spaces is monitored by local police stations in careful compliance of the venue authorities making a farce and mockery of the “freedom to protest” in a sense.

Apart from this mean method of executive (read police) diktat the inalienable fundamental right to peaceful protest has also been severely curtailed and affected through unlawful and extrajudicial reprisals from governments. Techniques used include bulldozing homes in reprisal, irregular and unlawful detentions, false implications under the Unlawful Activities (Prevention) Act, 1967 and National Security Act, 1980, the unilateral and frequent suspension of internet connectivity, raid and illegal seizures of premises of the demonstrators etc.

Between words and action, Supreme Court jurisprudence on the right to protest

The demolition of houses in retaliation becomes an infamous government action against the demonstration despite the fact that Supreme Court warned the government that demolitions “can’t be retaliatory”[4]. In 2022, when demonstrators, mostly Muslims, demanded the arrest of Nupur Sharma and Naveen Jindal for alleged derogatory remarks over the Prophet Mohammad, the Uttar Pradesh’ government demolished the houses of the protesters accused of instigating violence amid nationwide protest over Sharma’s remark. The Supreme Court later cautioned the UP government over demolition but declined to order a halt to the demolition.

From Streets to Courtrooms: The Fight for Protester Rights

Shaheen Bagh Protest

The 101-day Shaheen Bagh protest survived vindictive state election and almost made it through the brute Delhi riots of 2020. Consistent efforts were made to demonise and terrorise the protesters, especially because they hailed from India’s largest minority, Muslims. The protest has been identified by large sections of Indians as a symbol of courage and determination. [“Bilkis Dadi,” an eighty-two-year-old Indian woman who was the one of the faces of the protest was listed on 100 “Most Influential People of 2020” of Time magazine.]

It was the violent police action by the Delhi police against peacefully protesting students of the Jamia Milia Islamia University on December 15, 2019 that led to the sit in by community members, women of all ages, at the iconic Shaheen Bagh. Students had been vociferously but peacefully protesting the discriminatory amendments to the Citizenship Amendment Act, 2019 and the streets outside the historic university were came alive with vibrant graffiti for weeks.

On February 17, 2020, the Supreme Court’s division bench of Justice Sanjay Kishan Kaul and Justice K.M. Joseph appointed two interlocutors Senior Advocate Sanjay R. Hegde and Advocate & Mediator Sadhana Ramchandran to hold talks with the Shaheen Bagh protesters on pleas filed by Amit Sahni seeking clearance of road blockade due to the sit-in protests. The interlocutors submitted a report before the court, which was taken note of by the bench on February 24, 2020. The SC perused the report and found that the nature of demands was very wide and that it did look difficult to find a middle path towards at least facilitating the opening of the blocked public way.

In retaliation to this effective protest that was proving politically costly for the government, the Covid-19 pandemic and subsequent lock down call by the union government (March 16, 2020) was used as a trigger by authorities to crackdown and violently end the protest. Using the lock down as justification, several protesters were detained, and some faced charges under the Disaster Management Act and Indian Penal Code when, on March 24, 2020, Delhi Police and South Delhi Municipal Corporation (SDMC) officials arrived at the site in large numbers. Protesters were given extremely short notice to vacate the area, citing Covid-19 lockdown restrictions. When protesters refused to leave, police used force, detaining many and physically removing others. The protest site was demolished, with tents, banners, and belongings destroyed or confiscated. Later, the eviction sparked outrage, with many calling for the restoration of the protest site. The Delhi High Court even directed the authorities to restore the protest site, but with restrictions and the High Court also said that the eviction was carried out without following due process. By then, however, the widespread repression against youth leaders and lock down conditions came to the effective aide of a brute state action.

On October 7, 2020, Supreme Court’s three judges’ bench while delivering its judgement in Amit Sahni (Shaheen Bagh, In re) v. State, (2020) 10 SCC 439, [Shaheen Bagh Protest Case] observed that,

“India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy. Our constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. Article 19, one of the cornerstones of the Constitution of India, confers upon its citizens two treasured rights i.e. the right to freedom of speech and expression under Article 19(1)(a) and the right to assemble peacefully without arms under Article 19(1)(b). These rights, in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State. The same must be respected and encouraged by the State, for the strength of a democracy such as ours lies in the same. These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the police authorities concerned in this regard”. (Para 16)

The bench also appreciated the existence of the right to peaceful protest against a legislation. (Para 17)

CAA/NRC Protest 2020

Several student and youth activists –vocal yet peacefully protesting the CAA 2019 amendments were detained post March 2020 in the Modi 2.0 regimes worst ever crackdown on civil society, in the national capital. Apart from sections of the Indian Penal Code, the draconian UAPA law was invoked to ensure over four years and obstacles in grant of bail. Several young voices of this protest namely, former PhD scholar from the Jawaharlal Nehu University (JNU), Umar Khalid, student activist Gulfisha Fatima, Meeran Haider, Sharjeel Usmani. Sharjeel Imam and Safoora Zargar. Asif Tanha, Devangana Kalita and Natasha Narwal have faced incarceration. Of these Safoora, Asif, Devangana and Natasha are the only ones who got bail within a year from the Delhi High court.

On April 9, 2020, Delhi Police arrested Gulfisha Fatima, a Muslim student activist and member of the United against Hate group for her involvement in the Jaffrabad peaceful protest. To make a case in connection with the 2020 Delhi riots, she has been charged under multiple sections of the Penal Code, including rioting and assaulting a public servant. It is more than clear that Fatima, has been, however, targeted for leading peaceful protests opposing the religiously discriminatory Citizen Amendment Act (CAA).  In May 2020, Fatima was granted bail in the Jaffrabad protest case (FIR 48/2020). However, she has been forced to remain in prison under the notorious FIR 59/2020. As of August 2024, Fatima remains in jail, awaiting trial. Her case highlights the ongoing crackdown on activists and the erosion of civil liberties.

Meeran Haider, a 28-year-old PhD scholar and activist, was arrested on April 1, 2020, under the Unlawful Activities (Prevention) Act (UAPA) in connection with the 2020 Delhi riots. He has been lodged in Tihar Jail since then, despite multiple bail applications. Haider’s arrest and detention have raised concerns about the erosion of liberty and the targeting of dissenting voices. His case highlights the misuse of UAPA to silence activists and scholars, undermining academic freedom and the right to express dissent. As of August 2024, Haider remains in jail, awaiting trial, with his liberty and future hanging in the balance. Haider has recently received interim bail for just a fortnight.

Sharjeel Usmani, a 25-year-old student leader and activist, was arrested on July 8, 2020, from Azamgarh, Uttar Pradesh, in connection with the Elgar Parishad-Maoist links case. He was charged under the Unlawful Activities (Prevention) Act (UAPA) and other sections for allegedly inciting violence and promoting enmity between communities. Usmani has been denied bail and has been lodged in Taloja Central Jail, Maharashtra. Despite multiple bail applications, he remains in jail, awaiting trial.

Sharjeel Imam, a student activist, was arrested from Jehanabad, Bihar on January 28, 2020, for allegedly delivering inflammatory speeches against the Citizenship Amendment Act at Aligarh Muslim University and Jamia Millia Islamia University. He was charged with sedition and UAPA and has been in custody since then. In March 2024, the Delhi High Court issued a notice on Imam’s bail plea and sought a response from the Delhi Police. On May 29, 2024, the Delhi High Court granted statutory bail to Imam in the sedition case. However, he will remain in jail in the Delhi riots larger conspiracy case involving UAPA charges.

JNU PhD scholar Umar Khalid remains behind bars and will have been in prison for four years, without trial. Khalid was charged under the Indian Penal Code, 1980 (IPC) for various offences including rioting (sections 147 and 148), murder (s 302) and unlawful assembly (s 149). Khalid was arrested on September 13, 2020, under the Unlawful Activities (Prevention) Act (UAPA), falsely implicated in connection with the 2020 Delhi riots. He has been lodged in Tihar Jail since then. Despite applying for bail multiple times, his requests have been denied. Khalid has alleged mistreatment and harassment in jail, including being placed in solitary confinement. His case has sparked widespread concern and outrage among activists, academics, and civil society members, who see his arrest as a clampdown on dissenting voices. As of August 2024, Khalid remains in jail, awaiting trial, with his health and well-being a subject of concern.

Safoora Zargar, a 27-year-old research scholar and activist, was arrested on April 10, 2020, under the Unlawful Activities (Prevention) Act (UAPA) for her alleged involvement in the 2020 Delhi riots. Despite being pregnant, Zargar was denied bail twice and spent over two months in Tihar Jail. Her arrest and detention sparked widespread outrage and concern about her health and well-being. On June 23, 2020, the Delhi High Court granted her bail on humanitarian grounds, considering her advanced pregnancy. Zargar was released from jail on June 24, 2020 and is still fighting her case. Similarly Ishrat Jahan also incarcerated for successfully being part of one of those who organised at Khureji along with Khalid Saifi and others. Finally Ishrat Jahan got bail in March 2022.

In the lead Asif Tanha judgement (June 2021), followed by findings in the cases of Devnagana  Kalit the Delhi High Court passed substantive orders granting relief to the three student leaders. However an ever vindictive state was quick to move the Supreme Court to ensure that the path breaking precedent set in these cases did not benefit other youth leaders in jail on similar grounds.

The Delhi High Court of Delhi had observed that the “Right to Protest not terrorist Act under UAPA” and High Court finds no prima facie case against student leaders Asif Iqbal Tanha, Natasha Narwal & Devangana Kalita. In the Natasha Narwal bail order, the Delhi High Court observed that “We are constrained to express, that it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it would be a sad day for democracy”

CJP’s detailed analyses of the these judgements may be read here and here

Farmers Protest 2020-2021

The historic months long protests by India’s farmers at the Ghaziabad and Tekri borders of the national capital because they were not allowed to enter Delhi and protest at Ram Lila Maidan, earlier “allowed” to the “anti-corruption” protesters” has been a study in determination and citizens’ action.

The union government’s response to the farmers’ protest was marked by a mix of repression, negotiation, and eventual repeal of the farm laws. Initially, the government deployed large numbers of police and paramilitary forces to contain the protests, leading to clashes and detentions of protesters. The government also attempted to discredit the protesters (an effort that continues to date with elected representatives of the ruling dispensation casting slurs) by labelling them as “anti-nationals” and “Khalistanis”. However, as the protests persisted and gained widespread support, the government was forced to negotiate with the farmers’ leaders. After multiple rounds of talks, the government agreed to repeal the three farm laws in November 2021, marking a significant victory for the farmers’ movement. Despite this, the government’s handling of the protests was widely criticized for its heavy-handedness and attempt to suppress democratic dissent. A staggering 700 farmers lost their lives in this protest, in large measure due to the callous attitude of the union government.

Prior to the 18^th Lok Sabha elections, a renewed effort by the farmers to press their demands (unmet by the union government except to the extent of repealing unacceptable legislation) was met with brute state action at the Delhi borders, deployments of paramilitary troops, drones etc. leading even to the death of one more farmer and another losing his eyesight.

Efforts to get the courts to derail the protest were not entirely successful, however. On July 10, 2024, the division bench of Punjab and Haryana High Court while upholding the right to protest held that “In Democracy farmers can’t be stopped from entering state. Similarly, on, March 12, 2023, the Supreme Court refused to entertain Ex-BJP MLA’s plea to remove protesters from Delhi boarders[5].  (The SC directed the petitioner to address the matter in the Punjab and Haryana High Court, where the issue is currently under consideration).

Indian women wrestlers protest their sexual harassment

Another protest at the national capital that has evinced national attention is the sustained protests by women wrestlers Vinesh Phogart, Sakshi Malik and others in late 2022 and early January 2023.

On January 18, 2023, Vinesh Phogat and Sakshi Malik, two of India’s most esteemed women wrestlers, have come forth with accusations of sexual harassment against BJP MP and the then Wrestling Federation of India (WFI) head Brij Bhushan Sharan Singh. Since January of 2023, wrestlers had gone ahead and staged a protest at Jantar Mantar in New Delhi to bring this issue to light and seek justice for herself and the other allegedly exploited women wrestlers. The said protest had been paused on assurances that action will be taken on the claims being made by the women wrestlers, however no such thing happened.

Despite the initial silence, the wrestlers’ voices gained momentum, culminating in a historic protest in June 2023. A sit-in protest led by Vinesh Phogat, Sakshi Malik, and Bajrang Punia was then organised at Jantar Mantar to demand Wrestling Federation of India’s Chief and BJP MP Brij Bhushan Sharan Singh’s resignation, reforms in the WFI, and justice for the victims of the sexual harassment. However, even the women wrestlers who were exercising their right to peace protest had to face abuse at the hands of the Delhi Police, more than one time.

On May 3, late-night trouble had erupted for women champions camping day and night at Jantar Mantar. India’s women champion wrestlers had been reportedly abused by Delhi Police officers. According to the wrestlers, the Delhi Police had physically stopped them from replacing mattresses that got wet due to rain, resulting in the scuffle. “The mattresses got wet due to rain, so we were bringing folding beds for sleeping, but the police did not allow that. Drunk policeman Dharmendra abused Vinesh Phogat and got involved in a scuffle with us,” former wrestler Rajveer told PTI.

Several videos of the wrestlers had gone viral on social media, showing them being surrounded by a couple of cops who misbehaved with them. It had even been claimed by the wrestlers that male police officer had pushed women wrestlers without any women officer being present and that two protestors have even been injured. Reportedly, a drunk cop had also misbehaved with them, hurled abuse at female wrestlers, and even manhandled them at the protest site. The wrestlers had gone live on their respective social media accounts to report the incident.

Later, on May 29, the Delhi Police had used force on the protesting wrestlers with an attempt to disperse them using force. The protesting wrestlers were detained while trying to march to the new Parliament building in New Delhi as they resolved to intensify their protest demanding the arrest of Brij Bhushan. The wrestlers, including Vinesh Phogat and Sakshi Malik, were dragged and detained by police personnel, sparking widespread outrage. On the same day i.e. May 28, the Delhi Police was also registered an FIR related to rioting and other offences over the scuffle with protesting wrestlers in the national capital under the sections pertaining to rioting, offence by a member of an unlawful assembly, obstructing public servant from discharge of duty, disobedience to an order promulgated by a public servant, causing hurt to a public servant in discharge of duty, using criminal force to stop public servant from performing duty, and under the Prevention of Damage to Public Property Act was registered at Parliament Street police station. The police action was widely condemned as excessive and unwarranted, with many questioning the government’s heavy-handed response to the peaceful protest. The International Olympic Committee (IOC) was also condemned the police action over the wrestlers.

Parallelly, a plea had been filed by the wrestlers in the Supreme Court to direct the Delhi Police to file an FIR against Brij Bhushan. Supreme Court’s inaction in the wrestler protest reached an end on May 4, 2023, when it chose to close the petition filed by three women wrestlers. The Supreme Court closed the petition filed by three women wrestlers, who have represented the country in prestigious international events, taking note of the fact that FIRs have been registered by the Delhi Police against Wrestling Federation of India (WFI) president Brij Bhushan Sharan Singh over alleged sexual harassment. A bench comprising Chief Justice of India DY Chandrachud, Justice PS Narsimsha and Justice JB Pardiwala noted that the petition was filed seeking FIR and with the same being registered, the purpose has been served. The bench granted liberty to the petitioners to approach the jurisdictional magistrate or invoke the remedy under Section 482 CrPC before the Delhi High Court in case of any further grievances.

Despite the seriousness of the allegations of sexual harassment and the refusal on the behalf of the Delhi Police to file an FIR, the Supreme Court had relied on the Delhi Police’s assurance of there being an impartial investigation after filing of the FIR. Investigation. The petitioners’ lawyer Senior Advocate Narender Hooda had requested the bench to monitor the investigation, taking into account the conduct of the Delhi Police in refusing to take action till the Supreme Court’s intervention. However, the bench turned down this plea and said that it has given liberty to petitioners to invoke other remedies.

The court’s refusal to issue any concrete direction allowed Singh to continue as WFI president until June 16, 2023, when the government finally formed an oversight committee to investigate the allegations. The committee’s report led to Singh’s resignation on July 13, 2023, but the Supreme Court’s failure to take decisive action earlier had allowed the crisis to drag on for months, leaving the wrestlers feeling vulnerable and betrayed.

It is also essential to note that out of the seven wrestlers that had come forth with their complaints, the sole minor complainant had withdrawn her complaint in June with the father of the minor complainant coming out in the open about the threats he has been facing, and the amount of pressure they had been facing. The Hindu reported that the father of the said that he was threatened by people whose names he couldn’t reveal and “his family is living in intense fear”.

Supreme Court jurisprudence on Article 19 (a)(a) and (b)

• Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1

Hunger Strike: In the famed Ramlila Maidan case [(2012) 5 SCC 1)], the Hon’ble Supreme Court observed that  “the threat of going on a hunger strike extended by Baba Ramdev to personify his stand on the issues raised, cannot be termed as unconstitutional or barred under any law. It is a form of protest which has been accepted, both historically and legally in our constitutional jurisprudence of India”. (Para 209)

Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action. The law prescribes no requirements for taking of permission to go on a fast.

The Indian Constitution spells out the right to freedom of speech and expression under Article 19(1)(a). It also provides the right to assemble peacefully and without arms to every citizen of the country under Article 19(1)(b). However, these rights are not free from any restrictions and are not absolute in their terms and application. Articles 19(2) and 19(3), respectively, control the freedoms available to a citizen. Article 19(2) empowers the State to impose reasonable restrictions on exercise of the right to freedom of speech and expression in the interest of the factors stated in the said clause. Similarly, Article 19(3) enables the State to make any law imposing reasonable restrictions on the exercise of the right conferred, again in the interest of the factors stated therein. (Para 7)

The Judgement can be read here:

• Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, (1973) 1 SCC (Cri) 280

“Freedom of assembly is an essential element of any democratic system. At the root of this concept lies the citizens right to meet face to face with others for the discussion of their ideas and problems — religious, political, economic or social. Public debate and discussion take many forms including the spoken and the printed word, the radio and the screen. But assemblies face to face perform a function of vital significance in our system, and are no less important at the present time for the education of the public and the formation of opinion than they have been in our past history. The basic assumption in a democratic polity is that Government shall be based on the consent of the governed. But the consent of the governed implies not only that the consent shall be free but also that it shall be grounded on adequate information and discussion. Public streets are the “natural” places for expression of opinion and dissemination of ideas. Indeed it may be argued that for some persons these places are the only possible arenas for the effective exercise of their freedom of speech and assembly.”

(Para 69)

 “If the right to hold public meetings flows from Article 19(1)(b) and Article 19(1)(d) it is obvious that the State cannot impose unreasonable restrictions. It must be kept in mind that Article 19(1)(b), read with Article 13, protects citizens against State action. It has nothing to do with the right to assemble on private streets or property without the consent of the owners or occupiers of the private property.” (Para 35)

The Judgement can be read here:

• Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324

“The right to protest is, thus, recognised as a fundamental right under the Constitution. This right is crucial in a democracy which rests on participation of an informed citizenry in governance. This right is also crucial since it strengthens representative democracy by enabling direct participation in public affairs where individuals and groups are able to express dissent and grievances, expose the flaws in governance and demand accountability from the State authorities as well as powerful entities. This right is crucial in a vibrant democracy like India but more so in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities. (Para 54)

The Judgement can be read here:

• Amit Sahni v. Commissioner of Police and Others, (2020) 10 SCC 439

“India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy. Our constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. Article 19, one of the cornerstones of the Constitution of India, confers upon its citizens two treasured rights i.e. the right to freedom of speech and expression under Article 19(1)(a) and the right to assemble peacefully without arms under Article 19(1)(b). These rights, in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State. The same must be respected and encouraged by the State, for the strength of a democracy such as ours lies in the same. These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the police authorities concerned in this regard. [ See Ramlila Maidan Incident, In re, (2012) 5 SCC 1 : (2012) 2 SCC (Civ) 820 : (2012) 2 SCC (Cri) 241 : (2012) 1 SCC (L&S) 810] Additionally, as was discussed in Mazdoor Kisan Shakti Sangathan case [Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324], each fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right. It was in this respect, that in this case, an attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters.

(Para 16)

The Judgement can be read here:

• Anita Thakur v. State of J&K, (2016) 15 SCC 525

We can appreciate that holding peaceful demonstration in order to air their grievances and to see that their voice is heard in the relevant quarters is the right of the people. Such a right can be traced to the fundamental freedom that is guaranteed under Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. Article 19(1)(a) confers freedom of speech to the citizens of this country and, thus, this provision ensures that the petitioners could raise slogan, albeit in a peaceful and orderly manner, without using offensive language. Article 19(1)(b) confers the right to assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. Right to move freely given under Article 19(1)(d), again, ensures that the petitioners could take out peaceful march. The “right to assemble” is beautifully captured in an eloquent statement that “an unarmed, peaceful protest procession in the land of “salt satyagraha”, fast-unto-death and “do or die” is no jural anathema”. It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest. Organised, non-violent protest marches were a key weapon in the struggle for Independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution. (Para 12)

The Judgement can be read here:

How free are Indians then to exercise their constitutional right to protest?

Before assuming the present post, Chief Justice of India, DY Chandrachud had famously said, “Blanket labelling of dissent as an-national hurst ethos of democracy.” He called dissent a “safety valve: of democracy”. (February 15, 2020, in Ahmedabad (Gujarat speaking on “The hues that make India: From plurality to pluralism” at the 15th Justice PD Desai Memorial Lecture), Similarly, in 2021, former Supreme Court judge, Justice Ravindra Bhat said in a lecture that “The promise of free speech or free association would be of little use if a segment of the population threatens the free enjoyment of rights by others; rights would only be academic then. The State must act actively engage in the promotion of fundamental rights, in upholding the freedom of thought, expression, and of legitimate speech which can be contrary to the dominant discourse, freely expressed without fear of reprisal by private entities or collectives”

For sure, the Indian Constitution safeguards, in principle, the right to protest through Article 19(1)(a) guarantees the freedom of speech and expression, which includes the right to express dissent and protest. Article 19(1)(b) ensures the freedom to assemble peacefully and without arms, enabling citizens to hold protests and demonstrations. Article 21 also protects the right to life and liberty, which encompasses the right to protest against unjust laws and policies. Furthermore, Article 14 ensures equality before the law, preventing discrimination against protesters. Article 25 guarantees the freedom of conscience and free profession, practice, and propagation of religion, allowing citizens to protest against policies infringing on their religious rights. The Constitution also provides safeguards against excessive police action, such as Article 22, which protects citizens against arbitrary arrest and detention. These provisions collectively ensure that citizens can exercise their right to protest without fear of reprisal or persecution, fostering a democratic and inclusive environment.

Thus, the right to protest is a fundamental aspect of democracy in India, enshrined in the Constitution, but it faces significant challenges from government actions that often seek to suppress dissent. The right to protest is intrinsically linked to the essence of debate and discussion in a democratic form of government. It allows citizens to express dissent, challenge policies, and engage in constructive dialogue with the state. This, in turn, fosters a culture of transparency, accountability, and participatory governance.

However, as can be seen, the application of these lofty constitutional principles is selective, some protests being allowed or favoured, others shunned or frowned upon. Equally concerning is that on one hand we have our Constitution –with its lofty uplifting principles, on the other hand the governments (union and state) has effectively evolved the (mis) use of the omnipresent executive diktat, the misuse of Section 144 of the Code of Criminal Procedure (Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023) which remains the all manifest rule not the exception. There are also on India’s statute books, preventive detention laws (indiscriminately used) and those like the UAPA that have become the weapon of offense by the state to be selectively applied to protesters and protests.

So we ask, how free are all Indians to protest?

[1] Right to freedom of speech and expression

[2] Right to assemble peaceably and without arms

[3] The Bombay High Court delivered its order in the PIL, one filed by lawyer Jaishri Laxmanrao Patil through advocate Gunaratna Sadavarte, and another by Nandabai Sarjerao Misal, through advocate Subhash Jha – challenging the call for bandh contending that the same is illegal.

[4] Jamiat Ulama I Hind & Anr v UOI & Ors (WP(Crl) 162/2022)

[5] Nand Kishore Garg v. Union of India & Ors. | Writ Petition (Civil) No. 162 of 2024

Related:

How SC has balanced the right to protest v/s public inconvenience: Shaheen Bagh

Right to protest, not an absolute law: SC

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The letter has alleged that peaceful protests were met with fake encounters, abductions and demolition of houses belonging to the protesters by police and other government instrumentalities.

“Even when some of the most oppressed and exploited sections of the country, the Adivasis of Odisha, Chhattisgarh, Madhya Pradesh, Maharashtra etc., engaged in prolonged peaceful mass movements against mining-based displacement and rapid militarisation of their lands, the people are met with fake encounters, abductions and uprooting of their homes for exercising their democratic rights, demanding fair Gram Sabhas and the implementation of the Panchayat Extension to Scheduled Areas (PESA) Act, 1996,” the letter states.

“From Srinagar to Silger, all democratic dissent is attacked with varied degrees of violence and branded with the tag of Maoists and separatists. Journalists… arrested, people being violently displaced for the sake of corporate interests, internet shutdown bringing life back to the dark ages, academics in jail and retired judges forbidden from speaking in the country’s capital, where is the safety valve for democracy?” it asked.

In Chhattisgarh’s Silger, youth and the women had held one of the longest sit-ins to protest police firing on Adivasis opposing “rapacious mining and militarisation of their homes”.

The 135 signatories to the letter include Deepak Kumar, a political activist with the Campaign Against State Repression (CASR); G. Haragopal, a retired professor of the Hyderabad University and an activist; the Telangana Civil Liberties Commission; S.R. Darapuri, a retired IPS officer; the All India People’s Front; Manoranjan Mohanty, a retired professor of Delhi University; Nandita Narain, an associate professor of St. Stephen’s College, Delhi University; N.D. Pancholi, advocate at the People’s Union for Civil Liberties (PUCL); Shamsul Islam, author and retired faculty member of Delhi University; and A.S. Vasantha Kumari, a civil liberty activist.

The letter said the most recent incident occurred on December 10, 2023, when the world celebrated the 75th anniversary of the United Nations’ Universal Declaration of Human Rights as “Human Rights Day”. The signatories alleged that Parliament Street Police Station denied permission for a gathering to mark this occasion.

They alleged that though permission was sought 12 days in advance by the Campaign Against State Repression (CASR) — a coalition of 40 democratic progressive organisations — the organisers were informed about the cancellation of the permission less than 14 hours before the scheduled event.

The writers also expressed dismay at how a public discussion on March 15, 2023, organised by the CASR to address issues such as the “Media Blackout in Kashmir”, suppression of the free press, freedom of speech and expression, and the attack on journalists in the Valley had to be cancelled. They said the police cancelled the permission for the event with a two-hour notice and barricaded the venue at Gandhi Peace Foundation despite the fact that it was to be addressed by Justice Hussain Masoodi, a retired judge of the Jammu and Kashmir High Court, along with former legislators, renowned democratic rights activists and academics.

For a similar event, the “Bharat Bachao National Convention”, held at HKS Surjeet Bhavan in New Delhi, the organisers had to seek permission from the Delhi High Court after the Delhi police cancelled its permission and coerced the venue administration to scrap the bookings in March last year, the letter states.

According to the letter, police permission for all these events and many more had been cancelled citing vague arguments of “law & order/security”.

“Yet, the practices of the Delhi Police continue to push in the direction where democratic spaces are curtailed with impunity and the notions of liberties and dissent are attacked. When CASR sought permission for its gathering at Jantar Mantar, one of the historic spots of democratic gatherings for Indian democracy on 10th December, it was denied.

“When peaceful gatherings for civil discourse are sought at private venues, the police barricade the events and threaten the venue owners. When peaceful gatherings for democratic rights are sought at public spaces designated for such activities like Jantar Mantar, the permits are cancelled strategically at night to ensure no alternative is found. When these actions are protested by the people, we are assaulted, beaten with the butts of guns, detained, abducted and even threatened with our lives,” the letter said.

The letter added: “After all this, the women and LGBT persons who participated in the protests and gave their own contact details to the police received phone calls at their residences, not at the contacts they gave but directly to their families. Their family members were told by police officers to discourage their daughters from participating in protests and the police resorted to using patriarchy against adults to silence dissent.”

Text of the Open Letter:

To D.Y. Chandrachud,
The Chief Justice of India,
Supreme Court of India
2nd January 2024

Dear Justice Chandrachud,

We write this letter to you as a members of democratic-minded civil society and activists who are working on issues concerning democratic ethos of the people and the protection of their civic, democratic, and constitutional rights. We write this letter to you as an appeal, as well as a query regarding people’s right to freedom of speech and expression, a right that has been fought hard to achieve by our great people and forbearers and is also protected under the constitution. This right, along with the overall democratic rights of our people, some of them guaranteed under the Indian Constitution, are seeing an overall deterioration that alarms us.

Recently, a concerning trend of cancelling permissions for any programme focused on any social critique has emerged, along with the banning of peaceful protest gatherings and public meetings on various issues concerning democratic and Constitutional right of the people. The most recent case occurred on 10th December 2023, when the world celebrated the 75th anniversary of the United Nations’ Universal Declaration of Human Rights as “Human Rights Day.” The Parliament Street Police Station chose to deny the permission for a gathering to mark this occasion and discuss the event, less than 14 hours before the event even though the permission for the same was sought for 12 days prior on 28th November. The organizers of the gathering, Campaign Against State Repression (CASR), a coalition of 40 democratic progressive organizations, was informed about cancellation of the permission with less than 24 hours’ notice, on 9th December at around 9:15 pm. It is pertinent to mention that this is not the first time that police has resorted to such measures. On 15th March of this year, the same organizers were holding an indoor public discussion on “Media Blackout in Kashmir” to discuss suppression of free press, freedom of speech and expression, and the attack on journalists in Kashmir. Police cancelled the permission of the event with a 2 hours’ notice and barricaded the Gandhi Peace Foundation (GPF) venue at ITO, despite the fact that the event was to be addressed by Justice Hussain Masoodi, retired from the Jammu and Kashmir High Court, along with former legislators, renowned democratic rights activists and academics. Furthermore, a similar event by the name of “Bharat Bachao National Convention” held at HKS Surjeet Bhawan in New Delhi had to seek permission from the Delhi High Court after the Delhi police cancelled its permission and coerced the venue administration to cancel the bookings in March, 2023. Police permission of all these events and many more events/gatherings have been cancelled on grounds of vague arguments of “law & order/security.”

French philosopher and democrat, Jean-Jacques Rousseau proclaimed, “to renounce liberty is to renounce being a man, to surrender the rights [and duties] of humanity.” Even the Hon’ble Supreme Court itself has stated that “citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action,” in Ramlila Maidan Incident v. Home Secretary, Union of India 2012. Yet, the practices of the Delhi Police continue to push in the direction where democratic spaces are curtailed with impunity and the notions of liberties and dissent are attacked. When CASR sought permission for its gathering at Jantar Mantar, one of the historic spots of democratic gatherings for Indian democracy on 10th December, it was denied. When CASR-affiliated organizations chose to protest against this arbitrary action and mockery of the Universal Declaration of Human Rights, the protestors were attacked by police and the BSF, with horrifying scenes of police personnel openly threatening to fire on women and LGBT activists in front of the Rashtrapati Bhawan and the Lok Sabha in session! In front of the residence of the head of state of the Republic of India, the President herself, a student of journalism from Delhi University was separated from the protestors, brutally beaten by the police and was missing while in police detention for 7 hours, with no one aware of his whereabouts, for no actionable cause. When peaceful gatherings for civil discourse are sought at private venues, the police barricade the events and threatens the venue owners. When peaceful gatherings for democratic rights are sought at public spaces designated for such activities like Jantar Mantar, the permits are cancelled strategically at night to ensure no alternative is found. When these actions are protested by the people, we are assaulted, beaten with the butts of guns, detained, abducted and even threatened with our lives.  After all this, the women and LGBT persons who participated in the protests and gave their own contact details to the police received phone calls at their residences, not at the contacts they gave but directly to their families. Their family members were told by police officers to discourage their daughters from participating in protests and the police resorted to using patriarchy against adults to silence dissent.

Dear sir, you once said, “dissent is the safety valve of democracy” and have reiterated the need of democratic ethos. Yet, space for dissent is disappearing right in front of our eyes, to the point that we are seeing a cornering of people’s space for any democratic discourse and dissent. Dr. Ambedkar, in his famous address to the Constituent Assembly of India on 25th November 1949 said, “when there was no way left for constitutional methods for achieving economic and social objectives, there was a great deal of justification for unconstitutional methods.” When dissent is curtailed to such an extent where constitutional methods are robbed from the people, will the safety valve not break and lead to the protest that occurred on 13th December 2023 by Neelam Azad, Amol Shinde, Manoranjan D, Sagar Sharma, Lalit Jha and Vishal Sharma? In light of such developments, curtailment of a constitutionally-sound protest mere 3 days prior, how is it that their protest is reduced to a concern of ‘security breach’ and draconian ‘anti-terror’ law like the Unlawful Activities (Prevention) Act, 1967 are utilized against them?

The recent events themselves are part of a larger chain of affairs that are creating the realization that space for democratic dissent does not exist in India. From the arresting of Delhi University’s Dr. G.N. Saibaba in 2016, the mass arrests in the Bhima Koregaon-Elgaar Parishad case of democratic rights activists in 2018, the snapping of internet and phone connectivity in Kashmir in 2019 to initiate the longest internet shutdown in any country claiming to be a democracy, the arresting of prominent journalists from Kashmir and rest of India under anti-state charges, the mass arrests of democratic activists of the anti-CAA protests during the COVID-19 lockdown along with the glorification of the bulldozering of their homes to the present, a grim picture is painted for the people of India regarding democratic rights. Even when some of the most oppressed and exploited sections of the country, the Adivasis of Odisha, Chhattisgarh, Madhya Pradesh, Maharashtra etc., engaged in prolonged peaceful mass movements against mining-based displacement and rapid militarization of their lands, the people are met with fake encounters, abductions and uprooting of their homes for exercising their democratic rights, demanding fair Gram Sabhas and the implementation of the Panchayat Extension to Scheduled Areas (PESA) Act, 1996. In Silger, Chhattisgarh, the youth and the women conducted one of the longest sit-in protests where thousands of Adivasis of Bastar gathered to protest the police open-firing on Adivasis for opposing rapacious mining and militarization of their homes. From Srinagar to Silger, all democratic dissent is attacked with varied degrees of violence and branded with the tag of Maoists and separatists. Journalists arrested, a people being violently displaced for the sake of corporate interests, internet shutdown bringing life back to the dark ages, academics in jail and retired judges forbidden from speaking in the country’s capital, where is the safety valve for democracy?

We would like to draw your attention to this alarming situation. If a retired High Court judge and former legislators are not allowed to speak in a conference, if people are not allowed to gather and protest peacefully even at places like Jantar Mantar, one could only wonder, what right to freedom of Speech and Expression do the poor people from far away regions of the country have. We would like to know whether a blanket and sweeping powers can be granted to police and administrative bodies to cancel permissions without any reasonable justification expect other than a vague and an undefined term such as “law and order”. Have the constitutional guarantees been so broken and weakened that a mere two-line order citing three-word reason can stifle our rights guaranteed under Article 19 of the Constitution? Do the oppressed and exploited not have the right to defend their liberty? Are we not humans? Or is it that India, claiming to be the world’s largest democracy, not a signatory to United Nations Declaration of Human Rights? We want to remind you and your fellow members of the judiciary of the words of John Rawls, a jurist you will surely remember from your days of legal education. “Justice is the first virtue of social institutions, as truth is of systems of thought….. Laws and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust…… for this reason, justice denies that the loss of freedom for some is made right by a greater good shared by others….. therefore, in a just society the liberties of equal citizenship are taken as settled; the rights secured by justice are not subject to political bargaining or to the calculus of social interests.”

These are some of many questions that are affecting us and various sections of the country. If the people are not allowed to raise their concerns, their disagreement and their views, how are we supposed to grow into a more democratic society and progress? If people are stopped from peaceful protests, what is to come next and towards which trajectory are we heading. Suppression of freedom of expression of the people and democracy are not coherent and one shall be the end of the other. Going by the words of our great martyr and freedom fighter Bhagat Singh “the sanctity of a law can only be maintained as long as it is the reflection of the will of the people” and these unjust and arbitrary orders are not one.

Therefore, we appeal you to take this matter into suo moto cognizance, to defend the democratic rights and spaces of people, to uphold the liberty and dispel justice by preserving the rights and freedom of the Indian people, including the right to dissent, to express freely. We hope that some positive steps will be taken by the Supreme Court of India to direct the police and administrative bodies to stop stifling dissent in the name of “law and order”.

Thanking you

Signed,

1. Deepak Kumar, Political Activist, Campaign Against State Repression (CASR)
2. G. Haragopal, Retd. Professor from Hyderabad University and Activist, Telangana Civil Liberties Commission
3. S.R. Darapuri, Retd. IPS Officer, All India People’s Front
4. Manoranjan Mohanty, Retd. Professor, Delhi University
5. Nandita Narain, Associate Professor, St. Stephen’s College, Delhi University
6. N.D. Pancholi, Advocate, People’s Union for Civil Liberties (PUCL)
7. Shamsul Islam, Author and Retd. Faculty, Delhi University
8. AS Vasantha Kumari, Activist
9. John Dayal, Author and Human Rights Activist
10. Seema Azad, Human Rights Activist, People’s Union for Civil Liberties (PUCL)
11. Safoora Zargar, Researcher
12. Karen Gabriel, Professor, St. Stephen’s College, Delhi University
13. Dr. Pramod Kumar Bagde, Faculty, Benaras Hindu University, Varanasi
14. Prem Kumar Vijayan, Faculty, Hindu College, Delhi University
15. K. Muralidharan, Author
16. Wahid Shaikh, Teacher, Innocence Network
17. Asish Gupta, Journalist
18. Manish Azad, Political Activist
19. Amita Sheereen, Author and Translator
20. Ira Raja, Faculty, Delhi University
21. Ashutosh Kumar, Faculty, Delhi University
22. Tushar Kanti, Journalist, Author and Translator
23. Atikur Rahman, Activist
24. Jagmohan Singh, Teacher, All India Forum For Right to Education (AIFRTE)
25. K.R. Ravi Chander, Activist, Forum Against State Repression
26. Roop Rekha Verma, Retired Professor
27. Prabhakaran Hebbar Illath, Professor, University of Calicut
28. Lanu Longkumer, Faculty, Nagaland University
29. Preethi Krishnan, Faculty, O.P. Jindal Global University
30. M.R. Nandan, Retired Teacher, Founding Member, Karnataka Physics Association
31. Arun, Retd. Lecturer, VIRASAM (Revolutionary Writers’ Association)
32. Dr. SG Vombatkere, Engineer, National Alliance for People’s Movements (NAPM)
33. Gopalji Pradhan, Teacher, Democratic Teachers Initiative
34. Joseph Victor Edwin, Teacher
35. G. Rosanna, Rayalseema Vidyavanthula Vedika
36. Susan John Puthusseril, SIVY ( Society for the Inculcation of Values in Youth)
37. Dr. D.M Diwakar, DRI Jalsain
38. Neeraj Malik, Faculty, Delhi University
39. Kranthi Chaitanya, Advocate, Civil Liberties Committee
40. Siddhanth Raj, Lawyer and Trade Unionist, IFTU (Sarwahara)
41. Kanwaljeet Khanna, General Secretary, Inqlabi Kendra Punjab
42. Aga Syed Muntazir Mehdi, Advocate
43. Julius Tudu, Advocate, Legal Cell for Human Rights Guwahati
44. Thomas Pallithanam, Advocate, People’s Action for Rural Awakening
45. Vikas Attri, Advocate, Progressive Lawyers Association
46. Lovepreet Kaur, Advocate
47. Buta Singh, Writer, Translator and Journalist, Association for Democratic Rights
48. Bajrang Bihari, Writer, Janvadi Lekhak Singh
49. Shalu Nigam, Lawyer and Independent Researcher
50. Padma Kondiparthi, Advocate
51. Feroze Mithiborwala, Freelance Writer, Bharat Bachao Andolan
52. C.K.Theivammal, Advocate
53. Navjot Kaur, Advocate
54. Ravinder Singh, Advocate
55. Vibha Wahi, Social Activist, All India Progressive Women’s Association (AIPWA)
56. Himanshu Kumar, Human Rights Activist, VCA Dantewada
57. Sukoon, Writer
58. Arjun Prasad Singh, Social-Political Activist, Democratic People’s Forum
59. Kanwarjit Singh, Bharatiya Kisan Union (Ekta Ugrahaan)
60. S.P. Udayakumar, Social worker, Green Tamil Nadu Party
61. Sumeet Singh, Tarksheel Society Punjab
62. Thomas Franco, Social Activist, People First
63. Sharanya Nayak, Social Activist, Independent Consultant
64. Shabnam Hashmi, Social Activist, Anhad
65. Sudha, Therapist and Trainer, CNVC
66. Neelima Sharma, Theatre, Nishant Natya Manch
67. Lal Prakash Rahi, Social Work, Disha Foundation
68. Shakeel Ahmad, Scholar, Benaras Hindu University Varanasi
69. Navneet Singh, Research Scholar, Delhi University
70. Pritpal Singh, Rights Activist, Association for Democratic Rights
71. Nihar, Farmer, All India Kisan Mazdoor Sangh (AIKMS)
72. Rajeev Yadav, Activist, Rihai Manch
73. Abhijit Dasgupta, Activist
74. Dr. Anil Kumar Roy, Activist
75. Ramsharan Joshi, Journalist
76. Sumar Raj R, Retired Business Person, Nishant Natya Manch
77. Nagargere Ramesh, Karnataka Janashakti
78. Ramesh Shivamogga, Akila Karnataka vicharavadi Trust Bengaluru
79. Muniza Khan, Researcher, Gandhian Institute of Studies
80. Dr. Joseph Xavier, Researcher, IDEAS Mumbai
81. Dr. Vikash Sharma, Indian Council of Social Science Research (ICSSR) Delhi
82. G. Vijaya Bhaskara Reddy, Retd. Office Superintendent, BSNL Kurnool, Honorary District President, BSNL Employees Union, Kurnool & Co Convenor, Rayalaseema Vidyavanthula Vedika
83. K.C.Venkateswarlu, Pensioner, Palamuru Adhyayana Vedika
84. Sandeep Kumar, Poet
85. Aflatoon, Samajwadi Jan Parishad
86. Vinod Kumar Singh, Independent Researcher
87. Snehashish Chhaterjee, Healthcare Worker
88. Mahnoor, Drama Therapist
89. Kaushik Tadvi, Artist
90. Frazer Mascarenhas, Academic Administrator
91. Pravith, Software Developer
92. Sushil Benjamin, Serviceman
93. Amar PM, Software Engineer
94. Sudarshan Ramiengar, Self Employed Engineer
95. Suresh Joshi, Serviceman
96. Ramchandra, Student Activist, Inqalabi Chhatra Morcha (ICM)
97. Baadal, Student, Bhagat Singh Chatra Ekta Manch (bsCEM)
98. Najih Ettiyakath, Student, DISSC
99. Mukundan M Nair, Student, Sangharsh Democratic Students’ Collective
100. Ajay, Student, bsCEM
101. Richa, Student
102. Sumanth, , Student
103. Avanti , Student, bsCEM
104. Eksimar Singh, Student, Delhi University
105. Rifah Luqman, Student
106. Japneet Kaur, Student
107. Sneha Dwivedi, Student
108. AWM, Student
109. Swapnendu Chakraborty, Student, Revolutionary Students’ Front (RSF)
110. Shree Pal, Student, RSF
111. Abhinash Satapathy, Student
112. Sumaiya Fatima, Student
113. Arya, Student
114. Nishka, Student
115. Indranuj Ray, Student, RSF
116. Anirban Chakraborty, Student, RSF
117. Ankitaa Bal, Student, Calcutta University
118. Affan Alig, Student, bsCEM
119. Vallika, Student, Nazariya Magazine
120. Aishwarya, Student, BSJAY
121. Priyanshu, Medical Student
122. Parthipan, Student
123. Madhuri
124. Archita Sharma
125. Asha S Babu
126. Raghav
127. Astha
128. Ahlaam Rafiq
129. Ramnit
130. Ava Schneider
131. Azad
132. Dhir Pratap
133. S.V. Raman
134. Prateek
135. Thomas Kavalakatt

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After 11 a.m. Tushar Gandhi, great grandson of Mahatma Gandhi and Teesta Setalvad, activist, author and journalist visited August Kranti Maidan and offered their tributes. By this time the state government function at the venue was over, Both Tushar Gandhi and Teesta Setalvad spoke of the historic occasion, August 9, 2023 (81^st anniversary of Quit India Day and Gandhi’s speech made on that day. The Mumbai police followed both activists to the venue.

On August 9. 1942, the call for the “Quit India Movement” was given, with the mantra of “do or die. Yusuf Meherally, a communist and labor unionist who also served as Mayor of Mumbai, coined the famous slogan and Aruna Asaf Ali unfurled the tricolour at August Kranti Maidan. Gandhi’s other slogan: “Do or Die”. We shall either free India or die in the attempt; we shall not live to see the perpetuation of our slavery”. The call mobilised the citizens to a huge Civil Disobedience movement as the British refused to grant independence till the World War II (1939 to 1945) was over.

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“Quit India ke Din pe, Gandhiji ka Par-Pota Jail mai!!”

Today, on the 81st Anniversary of the historic QUIT INDIA MOVEMENT led by Mahatma Gandhi, we have witnessed a draconian crackdown by the BJP-led regime in Maharashtra. Our veteran Freedom Fighters have been commemorating this epic day of our freedom struggle ever since 1943 itself. Dr. G. G. Parikh who was a young student when he participated in the Quit India Movement in 1942, and who continues to lead this march even at the age of 99, is utterly distraught at this bizarre turn of events.

It’s actually for the first time that the BJP-led government is attempting to commemorate this day, a day that their ideological predecessors had opposed, even as the RSS & Hindu Mahasabha connived with the British Empire. The advertisement issued by the BJP-led government does not even mention the QUIT INDIA MOVEMENT. It’s once again clear that the BJP-RSS are trying their best, or rather their worst, to co-opt and distort our freedom struggle.

Currently, around 50 activists are being detained at the D. B. Marg Police station, and will be let off only after the official programme is over.

More worryingly, early in the morning itself, the police went to the residences of Tushar Gandhi & Teesta Setalvad, and they were clearly told that they would not be allowed to go to the August Kranti Maidan. Later, Tushar Gandhi was taken to the Santacruz Police station, whilst Teesta Setalvad was asked to stay indoors.

Every year, we, as the People’s Movement, commemorate the “Quit India Movement” by marching from the Tilak Statue at Girgaum Chowpatty to the August Kranti Maidan. But this year, we have been prevented by this communal fascist regime.

This unprecedented crackdown on this historic day of our independence movement has only strengthened our resolve to continue to resist this attack on our democratic and constitutional rights. On this day, we thus take an oath to live by the traditions of our freedom struggle and continue to defend our country and our people.

Madhu Mohite, Feroze Mithiborwala, Guddi S. L.  Prabhakar Narkar, Vishwas Uthagi & Poonam Kanojiya.

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The Andhra Pradesh High Court has reiterated that merely because a law is challenged before a court, it does not take away the right to protest it. The division bench of Justices Ahsanudiin Amanullah and BS Bhanumathi held, “Approaching a constitutional court for redressal of grievances ipso facto would not disentitle a citizen from protesting in relation to the same subject-matter.”

The agitation was on a grievance towards pay scale which was pending before the High court. The Advocate General on behalf of the State submitted that when the Court was already apprised of the matter by way of the petition it was not proper for the employees to give a call for, or proceed on strike, which could bring the State’s administrative machinery to a grinding halt.

The court cited Ramlila Maidan Incident, In Re, (2012) 5 SCC 1, whereby the apex court held that “freedom of speech is the bulwark of democratic Government. This freedom is essential for the appropriate functioning of the democratic process. The freedom of speech and expression is regarded as the first condition of liberty in the hierarchy of liberties granted under our constitutional mandate.”

The court also cited Mazdoor Kisan Shakti Sangathan v Union of India, (2018) 17 SCC 324, whereby the  court held,

“Undoubtedly, holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is its fundamental right. This right is specifically enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution of India. Article 19(1)(a) confers a very valuable right on the citizens, namely, right of free speech. Likewise, Article 19(1)(b) gives the right to assemble peacefully and without arms. Together, both these rights ensure that the people of this country have the right to assemble peacefully and protest against any of the actions or the decisions taken by the Government or other governmental authorities which are not to the liking. Legitimate dissent is a distinguishable feature of any democracy. Question is not as to whether the issue raised by the protestors is right or wrong or it is justified or unjustified. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances.

54. The right to protest is, thus, recognised as a fundamental right under the Constitution. This right is crucial in a democracy which rests on participation of an informed citizenry in governance. This right is also crucial since it strengthens representative democracy by enabling direct participation in public affairs where individuals and groups are able to express dissent and grievances, expose the flaws in governance and demand accountability from the State authorities as well as powerful entities. This right is crucial in a vibrant democracy like India but more so in the Indian context to aid in the assertion of the rights of the marginalised and poorly represented minorities.”

Further, in Amit Sahni v Commissioner of Police, 2020 SCC OnLine SC 853, the court held that even if a law has been challenged before the court “that by itself will not take away the right to protest of the persons who feel aggrieved by the legislation.”

The high court thus held, “Approaching a constitutional court for redressal of grievances ipso facto would not disentitle a citizen from protesting in relation to the same subject-matter.”

The court clarified that it will look at the dispute only from a legal lens, based upon settled parameters of adjudication and stated that the purpose of the protest was to draw the government’s attention to an issue.

The court held thus,

“We cannot be at one with the general proposition that approaching a Court would 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.”

Right to protest in subjudice matters

Even though the apex court had clearly pronounced in the Amit Sahni case in 2020 that a matter being subjudice before a court of law does not take away the right to protest of the aggrieved, another bench, in October 2021 raised and pondered over a similar question. In October 2021 a two-judge bench of Justices A.M. Khanwilkar and C.T. Ravikumar said that it would decide whether the right to protest was absolute and whether the party that was before it, challenging the law, could still protest it. The petition before the court was filed by the Kisan Mahapanchayat seeking the court’s permission to hold protests at Delhi’s Jantar mantar against the farm laws (which have now been revoked).

It is surprising that the bench would raise such a question when the same has been upheld by the court a few times before. Apart from the cases mentioned hereinabove, in the Shaheen Bagh protest case, the Supreme Court had recognised that even if the Citizenship Amendment Act (CAA) was being challenged before the court, it would not take away the people’s right to protest against it

In Himat Lal K. Shah vs. Commr. of Police (1972), the Supreme Court said the State can only make regulations in aid of the right of assembly of each citizen, and can only impose reasonable restrictions in the interest of public order.

Senior Advocate Mohan Katarki, while speaking to The Leaflet made a juridical distinction between legality and desirability of legislation. He said, “The legality or constitutionality of the law is tested by the Supreme Court or the High Court. However, the desirability or necessity of a law is a separate policy matter.  It’s for the Parliament to decide on the making or unmaking of the law. Hence, the farmers fundamental right to protest in a peaceful manner seeking the repeal of three farm laws despite the pendency of challenges in the Supreme Court or even after the constitutionality is upheld (if upheld), remains unaffected.”

The High Court order may be read here:

Related:

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Birbhum: Adivasis opposing coal mining project get support from SKM
How a state suffocated by Saffron got a new breath from Blue

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September 13, marks one year since Dr Umar Khalid, a human rights activist, was arrested, and has been in jail. Civil society activists, including eminent lawyers, journalists, former members of government commissions addressed a public meeting, and raised two crucial  questions:1) Do citizens today have the right to peacefully oppose their government – whether it’s policies, laws or views? Or, will they have to pay the kind of heavy price Umar Khalid is paying with their freedom? And 2) When a vital pillar of the criminal justice machinery – the investigating agencies- themselves betray communal bias, what does this mean for our rights and freedoms, for Umar Khalid’s freedom?

The speakers included Syeda Hameed (ex-member, Planning Commission and women’s rights activist), Prashant Bhushan (senior Supreme Court lawyer) , Zafarul Islam Khan (ex-Chairperson, Delhi Minorities Commission) Jasbeer Kaur (leader, Movement for Farmers Rights), Siddharth Varadarajan (founder-editor, The Wire), Bharat Bhushan (senior journalist) and Manoj Jha (member of Parliament. The event was moderated by Farah Naqvi (author and activist).

On the night of September 13, 2020 historian and an activist Dr Umar Khalid, a vocal voice speaking out against the CAA, was “called in for questioning by the Special Cell, Delhi Police,” and arrested under FIR 59 of the Delhi Riots case, additional charges under UAPA were then added against him. “His only fault was to uphold the constitution and oppose CAA, NPR, NRC. He saluted the women of Shaheen Bagh during a public meeting in Amaravati, Maharashtra and called for upholding Gandhi’s ideals. He saluted the women who came out on the streets when students of Jamia were brutally repressed, and stayed outside in protest for 101 days. The regime was scared of this courage. For them an educated Muslim is an eye sore,” said Syeda Hameed.

Portions of Umar Khalid’s speech delivered at Amravati in February 2020 was played out at the press conference. It was 47 seconds of this speech that was clipped and shared out of context by the BJP IT cell to frame Umar, recalled the panel. The Delhi police had even told the courts that the clippings used to implicate Khalid were “procured from media houses”. The media houses in turn said they had relied on Bharatiya Janata Party’s IT cell head Amit Malviya’s tweet, which had shared the clipped speech.  The full speech may be heard here: https://youtu.be/9tpM9-llpOk . Sabrangindia has been consistently reporting on the weighty arguments made by Trideep Pais, counsel for Khalid before Additional Sessions Judge, Amitabh Rawat. These articles may be read here and here.

Journalist Siddharth Varadarajan urged people to read the “ridiculous chargesheets” which he said argues that “the purpose behind the riots in Delhi on the eve of Donald Trump visit, was to highlight anti-CAA sentiments and defame the Prime Minister.” He called this a “brazen lie given that International media had been reporting the protests since last December.”  According to Varadarajan “The reason for criminalizing anti-CAA protesters,” he said “is to cover up the real perpetrators of Delhi riots. Umar can be arrested under UAPA but Hindutva leaders who called for genocide against Muslims were booked under flimsy sections so that they can get easy bail.”

Lawyer Prashant Bhushan reiterated that the investigations were “a conspiracy to frame innocents and cover up real perpetrators.” He added that all activists are being detained under UAPA, merely for opposing the CAA.

Umar Khalid is in jail since an year. The only “provocative speech” govt has against him is his speech invoking Gandhi. This is the highest form of injustice.#Umar1YearInjustice

— banojyotsna (@banojyotsna) September 13, 2021

Former Chairperson of the Delhi Minority Commission Zafrul Islam Khan recalled that the commission had established a committee, and published its findings, however, “the police went to court demanding that this report must not be placed in any court.” He asked why the police were “afraid of this report if they have nothing to hide?” and called for a Judicial Commission to probe the charges. Khan also reminded the audience and the media of 18 other young student and youth leaders similarly incarcerated since 2020 as also ordinary and innovent members of the Muslim community. Parliamentarian Manoj Jha hailed Umar Khalid as “one of the brightest and most uncontaminated minds of this age.” adding that “In these difficult times you will not find heroes in films, but behind bars for speaking up against the government…The government could not deal with Shaheen Bagh, hence it resorted to demonizing it.”

Activist Jasbeer Kaur drew a parallel with the ongoing farmers protest and said they too have been branded as “terrorists, khalistanis etc. They wanted to derail our movement too. Shaheen Bagh, just like the farmer, also raised its voice against an unjust law. It is Kapil Mishra and the rioters who must have been sent to prison, not Umar.” Journalist Bharat Bhushan said it is because “an authoritarian state needs enemies,” that an activist like Umar has been made into one. He said the BJP “is threatened by a young crop of leadership that has emerged from the people’s movement. Devangana, Umar and the others are all part of the educated articulate non institutionalized organic leadership vouching for secularism and constitutionalism for religious pluralism, ecological justice, gender justice, justice for Dalits, – who scare this govt. That is why he is in jail.”

The panel recalled the ongoing vilification and targeting of Muslims across the country but added that there was a ray hope that has come from the judiciary. Recently, the Courts, have passed around 20 orders related to the Delhi Riots cases where the Delhi Police has been put in the dock for their “shoddy investigations” and  “half-baked chargesheets”.

Related

Production of electronic evidence delayed: Student activists to Delhi Court, 2020

Delhi violence: What is happening in case involving the conspiracy FIR under UAPA?

Umar Khalid files fresh bail plea, opposes State’s “dilatory tactics”

Chargesheet calls me ‘veteran of sedition’, gives it a communal colour: Umar Khalid to

UAPA case is to selectively target people who oppose CAA: Dr. Umar Khalid

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The Supreme Court, on Monday, July 24, 2018, ruled that there could not be a “complete ban” on protests at Jantar Mantar in New Delhi, the Indian Express reported. A bench of Justices Ashok Bhushan and A. K. Sikri said, “There cannot be a complete ban on holding protests at places like Jantar Mantar and Boat Club (near India Gate),” and directed the Central Government to formulate guidelines regarding the issue. 

The ruling came in the case of a petition filed by Mazdoor Kisan Shakti Sanghatan, which challenged an order from the National Green Tribunal (NGT), which in October 2017 had asked the Delhi government to end all protests in the Jantar Mantar area, Scroll reported. The NGT said the protests breached environmental laws, and that it was the state’s duty to shield people from nois pollution, the Indian Express reported. The bench, led by Justice R. S. Rathore, had directed the New Delhi Municipal Council (NDMC) to take down all temporary structures, loudspeakers, and other protest-related equipment on the road leading to Jantar Mantar. It had deemed the Ramlila Grounds in Ajmeri Gate as an alternative option for demonstrators, where, as per North body authorities, just one group can hold an event at a time. 

It is Article 19(1) of the Constitution Of India that gives Indians the Right to Protest. Article 19 reads:
Article 19 (1) All citizens shall have the right
                (a) to freedom of speech and expression;
                (b) to assemble peaceably and without arms;

The petition challenging the NGT’s order argued, “….holding peaceful demonstrations in order to air grievances and to see that their voice is heard in the relevant quarters, is the right of the people. Such a right can be traced to the fundamental freedoms that are guaranteed under Articles 19 (1) (a) and 19 (1) (b) of the Constitution. Article 19(1)(b) specifically confers the right to assemble and thus guarantees that all citizens have the right to assemble peacefully and without arms,” Bar and Bench reported. The petitioner had argued that authorities and the police had curbed protests by constantly imposing Section 144 of the CrPC. The petition had said that the Delhi Police had for multiple years been issuing such directives as soon as the previous order lapsed, which constituted an abuse of power and hampered citizens’ right to protest, violating Article 19. The petitioner also submitted that in other areas of New Delhi, protests were previously permitted but have been slowly curbed over time. 

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