Right to Protest Not Taken Away if Law is Challenged Before Court: Andhra HC

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: