Recently, the Supreme Court ordered that it would examine the question as to whether a writ petitioner who has approached the courts challenging the constitutional validity of a law can assert the right to protest in respect of the same subject matter which is sub-judice.

"Once the party approaches the court challenging the validity of the Act, after that what is the question of protests? Once you have come to court, you have exercised your option," the Bench of Justices AM Khanwilkar and CT Ravikumar had observed while hearing a plea by farmers body Kisan Mahapanchayat seeking permission to stage a Satyagraha.

During the hearing of this plea, on October 1, 2021, the Court took objection to the stance of farmers who are still protesting against the controversial farm laws despite challenging their validity.

"Once the laws have been challenged in courts, the protesting farmers should repose their faith in the system and courts instead of continuing with the protests," the Bench had observed.

The hearings in this case raised important questions regarding the scope of the right to protest. So, what exactly does it encompass? Let us take a look at the laws and the views expressed by the courts on this topic.

Right to protest under the Constitution

The right to protest is protected under Article 19 of the Constitution. Though the said article does not separately mention the term "protest," the essence of the right to protest is evident from the following provisions:

Article 19(1)(a): Freedom of speech and expression

Article 19(1)(b): Right to assemble peacefully without arms

Article 19(1)(c): Right to form associations and unions co-operative societies

When read in cohesion, these rights enable the citizens of this country to assemble peacefully and protest against action or inaction on the part of the State.

Along with the right to protest and express dissent, an obligation towards certain duties also exists under the Indian constitutional scheme. This right to protest under Article 19 extends only to 'peaceful' protest. The same can be inferred from fundamental duties under Article 51-A of the Indian Constitution that provides for the duty of every citizen of India to safeguard public property, preserve the environment and composite culture.

Importantly, like other fundamental rights, the right to protest by its very nature is not absolute. This right is also subject to certain reasonable restrictions under Articles 19(2), 19(3) and 19(4) which include sovereignty, integrity and security of the State, friendly relations with foreign states, decency or morality etc.

Chapter VIII (Offences against public tranquillity) of the Indian Penal Code, 1860 (IPC) and Section 144 of the Criminal Procedure Code, 1973 confer powers upon authorities such as police officers and district magistrates a wide range of powers to ensure that public assemblies, protests and dharnas are peaceful and do not become “unlawful”.

It is to be kept in mind that nowhere among the constitutional provisions is 'sub-judice matters' highlighted as one of the restrictions on the right to protest.

Over the years, the courts have highlighted the importance of the right to protest, and the duty upon the State to not curb this right unreasonable.

In the case of Himmat Lal K Shah v. Commissioner of Police, the Supreme Court observed that "the State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interests of public order. It cannot impose any unreasonable restrictions, a right to hold meetings on public streets was subject to the control of the appropriate authority."

In Ramlila Maidan Incident Case, the Supreme Court specifically held that "citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action."

In a recent case of State v. Arif, the Delhi High Court had observed that "right to protest and express dissent is a right that occupies fundamental stature in democratic polity."

Recent instances of protests against ‘sub-judice’ matters

Citizenship Amendment Act, 2019

Last year, in the wake of protests against the enactment of the Citizenship Amendment Act (CAA), 2019, several petitions were filed before the Supreme Court challenging the validity of the legislation. During those matters, the Court observed that the right to protest and the right to challenge legislation are not mutually exclusive in nature. In one such order passed on February 17, 2020, in Amit Sahni v. Commissioner of Police, the Bench of Justices SK Kaul and KM Joseph explicitly held:

"We have put to her that the law has been enacted by Parliament and the law is facing a constitutional challenge before the Court that by itself will not take away the right to protest of the persons who feel aggrieved by the legislation."

In the final judgment passed in this case, the Supreme Court observed that the right to protest and other rights under Article 19 must be respected and encouraged by the State, for the strength of a democracy such as ours lies in the same. The Court significantly noted:

"In our order dated 17.02.2020 that despite the law facing a constitutional challenge before this Court, that by itself will not take away the right to protest of the persons who feel aggrieved by the legislation. We, however, simultaneously noted that the question was where and how the protest can be carried on, without public ways being affected."

Despite petitions being filed before the constitutional courts challenging the validity of the CAA, several protests took place across the country. And going by the orders passed by the Court in Amit Sahni, the right to protest under Article 19 against an issue which is sub-judice is not restricted.

Farm laws protests

On December 17, 2020, while hearing a petition seeking the removal from the roads of farmers protesting against the controversial farm laws, the Supreme Court Bench of then Chief Justice SA Bobde and Justices AS Bopanna and V Ramasubramanian significantly observed:

"This Court will not interfere with the protest in question. Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order. There can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens and is in accordance with law. We are of the view at this stage that the farmers' protest should be allowed to continue without impediment…"

In an order passed in the same matter dated January 12, 2021, the Court stayed the operation of farm laws and observed:

"While we may not stifle a peaceful protest, we think that this extraordinary order of stay of implementation of the farm laws will be perceived as an achievement of the purpose of such protest at least for the present and will encourage the farmers bodies to convince their members to get back to their livelihood."

Conclusion

Time and again, the Supreme Court has explicitly observed that the right to protest can only be restricted reasonably. While the term 'sub-judice' does not find a place in the restrictions, it falls upon the apex court to interpret the limits of this right.

In order to affirm 'sub-judice matters' as a restriction, the Supreme Court will have to rewrite Articles 19(2), 19(3) and 19(4) of the Constitution to hold that the same is a ground to restrict freedom of speech, right to peaceful assembly and allied rights.

Even if such re-writing were to take place, for the same to be reasonable, it has to pass the test of proportionality as laid down by the Court in Justice KS Puttaswamy v. Union of India to gain acceptance and be justified. In whatever manner the Supreme Court adjudicates this issue, the same has to be done very cautiously and with reasons justified in law.

Political theorist Hannah Arendt once wrote,

"A life of action and speech are the basis of one’s political life. And only by speaking one can register themselves as a living and acting being."

To echo this sentiment, and from a larger perspective, registering oneself through protest and speech is fundamental to being human and a political being. And to place unwarranted restrictions on this right would go against the principles of democracy.

Anadi Tewari is a fourth year law student at Faculty of Law, University of Lucknow and a Legal Intern at Bar & Bench.