1.Right to protest vs Right to mobility:
- India’s freedom struggle defines the importance of protest in the Indian Independence movement. Recently Haryana CM went to Hisar for inaugurating a 500-bed hospital for covid 19 patients ,the cops stopped the farmers from proceeding towards the venue, clashes ensued, with police personnel resorting to lathi-charge and firing tear gas shells to disperse the agitators. Several farmers and police personnel, including a DSP, were injured. This leads us to the question whether protests are fundamental right or constitutional rights OR protestors can damage public property as well?
- In my view Art 19 1(a) and Art 1(b) clearly mentions freedom to assemble peaceably and without arms in addition to that with freedom comes some responsibilities so Art 19(2) and Art 19(3) clearly mentions some reasonable restrictions which the freedom is subject to such as sovereignty of the state, security of the state, friendly relations with foreign states, public order, decency or in morality or in relation to contempt of court, defamation or incitement to an offence.
- Article 51A makes it a fundamental duty for every person to safeguard public property and to avoid violence during the protests and resorting to violence during public protests results in infringement of key fundamental duty of citizens.
- This tells Right to protest is not absolute.
- Now Right to mobility has been a boring issue since the recent shaheen Bagh and farmer protests as the Government of India informed Rajya Sabha that the three Delhi’s borders blocked by agitating farmers were a cause of inconvenience to the residents of Delhi and qwneighbouring States. This leads to the question whether one’s Fundamental right can be uprooted that is causing inconvenience while saving the another’s Fundamental right to protest.
- In my view the Honourable Supreme Court in plethora of judgements has righty said that protests are integral part of democracy such as India but it should be peaceful and lawful that is not causing inconvenience to others one of such is Government of Tamil Nadu vs P.Ayyakannu of 2018 the court observed that “The right of the State to identify locations for demonstrations, dharanas and protests has been recognized by the Hon’ble Supreme Court as well as this Court. No person, in our considered opinion, has a right to contend that he would protest only at a particular place and not anywhere else. The very fact that the right to protest is acknowledged as a fundamental right under the constitution, makes it subject to reasonable restrictions”. And the infamous judgement Amit Sahini vs Commissioner of Police and Ors 2020, Where the Supreme court categorically told “Public places cannot be occupied Indefinitely”
What Does International Law Say?
- A Special Rappoteur of Rights to freedom of peaceful assembly and of association commented on Art 21 Right to peaceful Assembly .
- The rights to freedom of peaceful assembly and of association function a vehicle for the exercise of the many other civil, cultural, economic, political and social rights and are essential within the implementation process of Agenda 2030 on Sustainable Development.
- States should plan properly for assemblies, which needs the gathering and analysis of data , anticipation of various scenarios and proper risk assessments. Transparent decision-making is central to the method of designing and facilitating assemblies and in ensuring that any action taken by enforcement is proportionate and necessary.
- Contingency plans and precautionary measures must even be put in situ . Proper planning and preparation requires continuous monitoring of activities and will be adaptable to changing circumstances.
- The protection of rights requires that positive measures be taken to stop actions by non-State actors that would interfere with the exercise of the proper during, before and after the peaceful assembly. The fulfilment of rights requires States to make , facilitate or provide the required conditions for the enjoyment of rights.
- The Special Rapporteur has recommended that States should facilitate and protect peaceful assemblies, including through negotiation and mediation.
- The Special Rapporteur has stressed that States should make sure the provision of adequate security and public order management in accordance with international human rights law and standards to preclude the necessity for personal military and security companies to fill this gap.
Written submission prepared by the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Clément Nyaletsossi Voule
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