Freedoms of speech and expression, right to protest have constitutional limits that mustn't be crossed

Disagreements with the government or with the courts can’t ever assume extra-constitutional proportions in the name of liberty

Raghav Pandey February 11, 2021 12:44:37 IST
Freedoms of speech and expression, right to protest have constitutional limits that mustn't be crossed

File image of protesters atop a flagpole on the ramparts of the Red Fort. AFP

The question of whether the right to protest should find a place in the Constitution of India has come under a lot of discussion in the context of ongoing protests against the farm laws. To ascertain the merits of the issue, it is important to understand the philosophical underpinnings of the concept of liberty as contained and guaranteed under our Constitution.

Any democratic political setup entails that all the decisions at the political level are taken by the majority. The democratic form of government also assumes that the majority is mostly right in its decisions, for the precise reason that most people have agreed to be bound by such a decision. Still, those in the minority are not supposed to simply abide by whatever decision the majority may take. If they disagree with such a decision, there are ways in which such disagreements can be addressed.

The most obvious way to address this disagreement is by taking it to the court. The constitutional courts in India are empowered to exercise the powers of judicial review and invalidate a law if it is in violation of the Constitution. This means that there are constitutional limits on the government’s power to make laws and it can’t make laws that abrogate the fundamental rights of its citizens, no matter how strong the majority is. In this way, the judicial organ will settle such a disagreement between the ruling majority and the minority.

This protection is available at the most minute level, meaning that even a single person’s fundamental rights can’t be violated by a government that is elected through an absolute majority. For this mechanism to work, it is important that the people have faith in the judicial organ of the state, and that they agree to be bound by its decisions. If there is a sense that is instilled in the people that the institutional integrity of the judicial organ is such that it can’t make the right decision, then the entire edifice of the independent judiciary made by the Constitution will fall.

Another way to address disagreements with the decision of the government is to voice your disagreement in a manner that the government takes notice of such a disagreement, thereby taking into account the particular concern. This is how a protest can lead to change or modification of the government's decisions. This method is more efficient if the disagreement is shared by a considerable number of people and they are voicing the same through a protest.

Mobilisation of people on a particular issue is a method on which the democratic framework of governance has been built, so such a method of registering disagreement must be welcomed.

At this point, however, it must not be lost that a disagreement with a political decision has its limits and it can never be in the nature of a challenge to the sovereignty of the elected government. The ultimate decision has to be made by the elected government of the day because that is how a democracy is supposed to function in the first place. Thus, any protest on a disagreement with the government should ideally culminate with the elected government agreeing to talk on the issues which led to the protests.

The Constitution of India guarantees the fundamental fight to freedom of speech and expression, freedom to assemble and form associations under Article 19(1). These freedoms read together can certainly mean that under the Indian constitutional framework there is a fundamental right to protest and organise such a protest. As is the nature of most rights, none of them are absolute. One of the foremost philosophers and advocates of the concept of liberty, John Stuart Mill has argued in his treatise On Liberty, that one’s liberty can’t be at the cost of harm to others.

Accordingly, there are restrictions on Article 19(1) in the form of Article 19(2) in the constitution, which empowers the state to impose reasonable restrictions on all freedoms provided by Article 19(1), including right to protest. The grounds on which such restrictions can be imposed are majorly there to ascertain that such individual freedoms don’t harm the others. These grounds are – sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. These restrictions are just manifestations of prevention of harm to others in one way or the other.

Hence, the Constitution itself addresses the questions of ambit of the right to protest as something which is clearly not in the terms as is made out to be these days. The protest against the farm laws, which led to an individual protester climbing on one of the flagpoles of the red fort and unfurling a religious flag is most certainly not something which is protected by the Constitution. Additionally, even the non-violent method of blocking important roads leads to major harm to others in the form of inconvenience in daily commuting, is also not protected by the Constitution as a liberty, because it evidently leads to crumbling of public order and comes at a cost of constant harm to many others.

Contempt of court is also a ground on which freedom of speech and expression is curtailed. As mentioned above, in the absence of this the faith of the people in the judicial organ may falter, which leads to closure of the primary method of resolving disagreements. In that case, theoretically, the government can indulge into more abrogation of rights because people have lesser avenues to enforce their fundamental freedoms. Hence, one particular comedian may joke about the court or the Chief Justice of India, but it will not be fair for the ordinary litigants who believe that the courts act as the guardian of their fundamental freedoms and approach it in hundreds of thousands of numbers, every day. As again, the liberty of one individual is at the cost of harm to multiple others.

Therefore, the disagreements with the government or with the courts can’t ever assume extra-constitutional proportions in the name of liberty. Hence, liberty of speech and expression and the right to protest have their constitutional limits, not respecting those is a disservice to the Constitution.

The author is an assistant professor of law at Maharashtra National Law University, Mumbai

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