Mazdoor Kisan Shakti Sangathan vs. Union of India

IN THE SUPREME COURT OF INDIA
AIR 2018 SC 3476
Petitioner
Mazdoor Kisan Shakti Sangathan 
Respondent
Union of India
Date of Judgement
23rd July, 2018
Bench
Justice A.K. Sikri; Justice Ashok Bhushan

Introduction:

Throughout history, protests have played a crucial role in overcoming severe repression and demanding democratic and responsible governments, such as the fight against colonialism, labour struggles and strikes, the civil rights movement, anti-apartheid movements and anti-communism, the fall of communism. , women defy patriarchy, anti-war and anti-capitalist mobilizations, protests against “stolen elections”, and often become a predetermined political action of how society seeks to change social, political and economic systems.

Protests are important in all societies, as they provide individuals and groups with an effective opportunity to have a voice in public life through the media in addition to the electoral processes. However, instead of seeing protests as a legitimate and necessary part of a democratic society and an exercise that guarantees good governance and responsibility, states often treat protests as a threat; something that has to be controlled, discouraged or eliminated, both through law and practice.

The right to protest peacefully is guaranteed by the Constitution of India and is at the heart of democracy. Articles 19 (1) (a) and 19 (1) (b) grant citizens the right to freedom of expression and to meet peacefully.[1] However, under Articles 19 (2) and 19 (3), reasonable restrictions are established on freedom of expression in which the interests of sovereignty and integrity of India are involved.[2] Therefore, in the light of the above, this case analysis deals with the recent Supreme Court ruling in Mazdoor Kisan Shakti Sangathan v. Union of India[3] in which the question of the right to protest was involved.

Background:

Judicial Background:

In the case of the Ram Lila Maidan Incident v. Union of India and Ors.,[4] the Supreme Court declared: “Citizens have the fundamental right of peaceful assembly and protest that cannot be removed by the arbitrary executive or legislative action.”

It was in Maneka Gandhi vs. Union of India,[5] that Judge Bhagwati had said: “If democracy means the government of the people, by the people, it is obvious that every citizen must have the right to participate in the democratic process and to allow him to intelligently exercise his rights to choose, the discussion Free and general public affairs is absolutely essential.”

International Background:

Many international treaties contain clear articulations of the right to protest and it is crucial for people interested in protesting to keep up to date and aware. These agreements include the 1950 European Convention on Human Rights and the International Covenant on Civil and Political Rights of 1966. Articles 9 state the “right to freedom of thought, conscience and religion”.[6] Article 10 states the “right to freedom of expression”.[7] However, in these and other agreements the rights to freedom of assembly, freedom of association and freedom of expression are subject to certain limitations.

Constitutional and Statutory Provisions Discussed:

• Article 19, 21, 25(1), 29(2), 30(1), 30(2) of the Constitution of India.
• Section 107, 144, 145 of Code of Criminal Procedure (CrPC).
• Section 186, 188 and 353 of Indian Penal Code (IPC).

Facts:

The original application was filed by Respondent Nos. 1 to 7. The application intended the Court to pass appropriate orders directing the Police Commissioner and other government authorities to disallow the protestors of Jantar Mantar Road stretch between Ashoka Road and Parliament Street or prevent them from using loudspeakers or public announcement system. The NGT allowed the Original Application of Respondent Nos. 1 to 7.

Procedural History:

The civil appeal no. 862 of 2018, on the other hand, has challenged the judgment and order approved by the National Green Tribunal, Principal Bench, New Delhi (hereinafter, the “NGT”) in the original application no. 63 of 2016. This original Request was submitted by Defendants Nos. 1 to 7, who are residents of Jantar Mantar Road.

The prayer that was made in the original Request was to approve the appropriate orders that ordered the Police Commissioner and other government authorities (who were arranged as Defendants) that would not allow the demonstrators of the Jantar Mantar Road stretch between Ashoka Road and Parliament Street or avoid using speakers or public announcement system The NGT, after hearing the matter, issued its ruling on October 5, 2017, allowing the original request of Defendants 1 to 7.

Likewise, the Appellant in Civil Appeal No. 863 of 2018, aggrieved by the same NGT order, declares that he was a victim for many years of the serious crime of rape by a police officer on June 16, 2010, and to draw attention. The people affected by the reparation of their grievance have been continuously sitting in Dharna in Jantar Mantar and with the prohibition of such Dharna by the NGT, their valuable fundamental right is affected.

Civil Appeal No. 864 of 2018 was presented by an organization, which fights for the rights of the former military, had been celebrating dharnas, assemblies, speeches, etc. In Jantar Mantar, he cannot raise his voice due to the order approved by the NGT to ban these types of Assemblies. The introduction mentioned in these two cases clearly reveals the community of problems and legal precepts on the basis of which the subject of all cases will be decided. For this reason, the four cases were grouped and heard simultaneously.

Issues:

• Whether the judgment dated 5th October, 2017, rendered by the NGT was valid?
• Whether total ban of demonstrations etc. at Jantar Mantar road amounts to a violation of the rights of the protestors of the Constitution or this would amount to a reasonable restriction in the interest of ‘public order’?

Arguments

Arguments of the Petitioners:

• The Delhi Police have been issuing such prohibitive orders under Section 144 of the Code of Criminal Procedure for several years. Issue new orders as soon as the previous order expires. According to subsection (4) of the Criminal Procedure Code of Section 144, an order may be issued for a maximum period of two months, therefore, the Delhi Police have adopted the tactic of issuing the same order repeatedly as a result of which in recent years, the entire central area of Delhi is a prohibited area to hold dharnas, peaceful demonstrations, etc.
• The petitioner also argued that the Delhi police have even announced that protesters will use Jantar Mantar as a place of protest. However, on October 5, 2017, the NGT has completely banned protests in Jantar Mantar for the reason that it creates a nuisance for residents of the area and violates the environmental protection statutes. However, this order completely violates a citizen’s fundamental right to a peaceful meeting.
• Prashant Bhusan learned counsel referred to certain relevant provisions of the Code of Criminal Procedure including Section 144 thereof and also that of Delhi Police Act, 1978. He submitted that holding peaceful demonstration by people 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 system guaranteed Under Articles 19(1)(a) and 19(1)(b) of the Constitution. He submitted that by various pronouncements, this Court, as well as High Courts, have upheld this fundamental right of the citizens, i.e., right to protest and assemble peacefully without arms is a distinguishing feature of any democracy and it is this feature that provides space for legitimate dissent.
• Bhushan argued that the Boat Club area in New Delhi / Central Delhi had also been treated as the most suitable place for peaceful demonstrations. According to him, it was not a solution to allocate the area for the demonstration in Ram Lila Maidan. It was not a suitable alternative and there was no solution since it was far from the center of Delhi, where the central government offices were located. The very purpose of the demonstration is to ensure that decision-makers listen to the protesters’ voice so that it has an adequate impact. If the protesters, such as the petitioners, are taken to distant places in Ram Lila Maidan, in Old Delhi, the very purpose of the peaceful demonstration would be meaningless, which would clearly amount to violating the rights of the petitioner under articles 19 (1) (a) and 19 (1) (b) of the Constitution.
• It was also argued that the impugned orders were based on the assumption that whenever there is a demonstration or dharna in the New Delhi area, it would lead to violence which was uncalled for the assumption. His plea was that if any particular group has such antecedents of becoming violent, such a group can always be prevented from holding demonstrations. For this purpose, Respondents can always have vigilance inputs. However, there is no reason or rationale in putting a general and complete ban on peaceful demonstrations.
• One of the arguments raised by the appellant was that Ram Lila Maidan is far from that part of the New Delhi area where there was a concentration of power and, therefore, protests and demonstrations in a place far from Ram Lila Maidan would have no impact or Very little effect It was emphasized that the purpose of holding such demonstrations and raising slogans was that they reach the people concerned for whom they are intended.

Arguments of the Respondents:

• The counsel for the respondent argued that ‘clear and present danger’ test which was applied by US Courts in such cases was not applicable in the Indian context. The correct test to be applied was that of ‘apprehension of breach of peace’ test.
• It was, thus, argued that mere apprehension of breach of the peace was sufficient and that Section 144 of the Code of Criminal Procedure permitted anticipatory action and pass appropriate prohibitory orders.
• It was argued that the Assistant Commissioner of the Police, who had examined the reports with due application, had concluded that holding unrestricted public meetings, processions/demonstrations would likely cause problems such as traffic obstructions, safety hazard human and disturbances of public tranquility. The Deputy Police Commissioner, therefore, complied with the requirement of Section 144 of the Code of Criminal Procedure.
• It was also argued that a complete ban on such public meetings, etc. was not imposed. In other words, before holding such public meetings, processions, demonstrations, etc., prior permission from the authorities was required, which should be considered on a case-by-case basis.
• The learned Counsel on behalf of respondents argued that there had been instances where, in the past, on the visit of particular Heads of the Foreign States, attempts were made to hold demonstrations against such persons and their visits, which was not conducive for maintaining healthy bilateral relations between the two countries.
• It was also submitted that Delhi being capital of the country, there was a tendency on the part of organizations located throughout the country to come to Delhi and hold public meetings, processions, demonstrations, etc. The consequence would that there would be the nth number of these public meetings, processions/demonstrations every day in Central Delhi jeopardizing the normal functioning in the Parliament and that of the Central Government offices.
• Therefore, it was argued that the promulgation of the Criminal Procedure Code of Section 144 was not only a matter of necessity but also of public interest and public safety. It was said that such an order was legally justified in the proof of principles established in Madhu Limaye v. Subdivisional Magistrate[8].
• It was also claimed that the Respondents’ position was claimed by the judgment of October 5, 2017, approved by NGT in the original Application No. 63 of 2016 (Varun Seth and Ors. V. Police Commissioner, Delhi Police[9]) in which the NGT judicially recognized that the processions, demonstrations and agitations, etc. they had become a habitual feature, which was noticed by the NGT.

Judgment:

Ratio Decidendi:

• The right of the protestors Under Article 19(1)(a) and 19(1)(b) of the Constitution and the rights of the residents Under Article 21 of the Constitution, as both the rights are fundamental rights.
• The principle of primacy cannot be given to one right whereby the right of the other gets totally extinguished. Total extinction is not balancing.
• The rights under Article 19 (1) (a) and 19 (1) (b) of the Constitution are not free and are unlimited in scope. Article 19 (2) to (6) establishes a specific provision to impose reasonable restrictions on the rights that confer restrictions on the exercise of those rights.

Obiter Dicta:

• The making of peaceful demonstrations by citizens to express their complaints and ensure that they are heard in the relevant places is their fundamental right. This right is specifically enshrined in Article 19 (1) (a) and 19 (1) (b) of the Constitution of India.
• The right to protest is crucial in a democracy that is based on the participation of an informed citizen in governance. This right strengthens representative democracy. This right is crucial in a vibrant democracy like India, but even more so in the Indian context to help affirm the rights of marginalized and poorly represented minorities.
• Before the NGT, the authorities took the position that such demonstrations were to be allowed as the area was earmarked for such purposes. The residents, on the other hand, in the petition filed by them, highlighted the infringement of their rights which were caused by these demonstrations. In this kind of adversarial approach adopted by the parties before the NGT, the NGT went by the ground realities and the pathetic situation faced by the residents because of such demonstrations. Though this analysis of the NGT was without blemish, however, I feel that the solution was not to ban the demonstrations altogether. Instead, the NGT would have directed the authorities to adopt such measures so that there was a balancing of the rights of both the Sections of the society.

Directions Issued:

• The Court ordered the Police Commissioner, New Delhi, to design an appropriate mechanism for the limited use of the area for such purposes, but to ensure that demonstrations, etc., were regulated in such a way that they do not cause inconvenience to residents from Jantar Mantar road or the offices located there. So that, detailed guidelines could be formulated in this regard.

Conclusion:

It can be concluded that the right to protest is a human right derived from a series of recognized human rights. In addition, the protest and the restrictions to the protest have lasted as long as the governments. The protests encourage the development of committed and informed citizenship and strengthen representative democracy by allowing direct participation in public affairs.[10] This is especially important for those whose interests are poorly represented or marginalized. However, governments around the world often treat protests as an inconvenience to control or a threat to extinguish. However, the court in this case of Mazdoor Kisan Shakti Sangathan v. Union of India[11] was right in its decision to balance the needs of both classes.

Edited by Parul Soni

Approved & Published – Sakshi Raje

Reference

[1] Rajeev Bhargava, The right to protest in a free society, The Hindu, January 22, 2020, https://www.thehindu.com/opinion/op-ed/the-right-to-protest-in-a-free-society/article30618223.ece.

[2] Radha Mohan Lal v. Rajasthan High Court,(2003) 3 SCC 427.

[3] Mazdoor Kisan Shakti Sangathan v. Union of India, AIR 2018 SC 3476.

[4] the Ramlila Maidan Incident v. Union of India and Ors, (2012) 5 SCC 1.

[5] Maneka Gandhi vs. Union of India, AIR 1978 SC 597.

[6] Guide on Article 9 of the European Convention on Human Rights, Freedom of thought, conscience and religion, https://www.echr.coe.int/Documents/Guide_Art_9_ENG.pdf ( Last visited Feb 14, 2020, 9:00 P.M).

[7] European Union Agency for Fundamental Rights, EU Charter of Fundamental Rights, https://fra.europa.eu/en/eu-charter/article/11-freedom-expression-and-information  (last visited Feb 14, 2020, 9:00 P.M).

[8] Madhu Limaye v. Subdivisional Magistrate, AIR 1971 SC 2486.

[9] Varun Seth and Ors. V. Police Commissioner, Delhi Police, MANU/GT/0093/2017.

[10] Doctors for Life International v. Respondent: Speaker of the National Assembly and Others, (2006) ZACC 11.

[11] Supra note 3.