Rights and Restrictions - From Constituent Assembly to Farmers Protest

The Constitution of India, as envisioned by the members of the Drafting Committee, was to be a living document striking a perfect balance between 'positive and negative' rights. As the positive rights expressed the 'social consciousness' for 'economic liberty', the negative rights were more of a State obligation to fulfil the desire for 'civil liberty' of Indians. In such a scenario, the freedom of an 'individual' shall be understood with respect to the restrictions it adheres. The individual freedoms under Art-19, which subscribes to 'freedom of speech and assembly', does have a legal and constitutional obligation to comply.

As Granville Austin said, "The Indian experience of, and direct participation in, the institution of democratic, parliamentary government during the British period immeasurably enhanced the Constitution's chances of success". Here, the word 'direct participation' is to be given special emphasis. It does not only refer to active voting participation for forming an elected government or leader. It also liberates individuals to participate in processes criticizing and questioning the government on matters such as policy, diplomacy, economy etc. The Art-19(1) of the Indian Constitution, guarantees it's citizens the freedom, of speech, to assemble, to form associations and to move freely throughout the territory of India with the protection of life and liberty enshrined in Art- 21. However, as life is not eternal and indefinite so does the freedom guaranteed under the Constitution. Going back to the pre-independence times, in the Karachi Resolution, for example, the rights of free speech were not to contravene law or morality.

The Constituent Assembly debated on the question of freedom versus state security and, of liberty versus licences in individual behaviour. Taking note of unrest in Bengal, Punjab and Assam, A. K. Ayyar in the Constituent Assembly wrote to B.N Rau, the Constitutional Advisor, that "all the Fundamental Rights guaranteed under the Constitution must be subject to public order, security, and safety, though such a provision may to some extent neutralize the effect of the rights guaranteed under the Constitution". This interpretation of 'conditional freedom' is vehemently codified in the Constitution under Art-19(2), which deals with the 'reasonable restrictions' on freedom guaranteed under Art-19(1). However, it was Thakur Das Bhargava in the Constituent Assembly who moved an amendment to insert the word 'reasonable' before 'restrictions'.On counter arguments presented in the Constituent Assembly against the provisions restricting the 'freedom' in times of necessity, B R Ambedkar said, while emphasizing on the American Constitution that "The rights of the American Constitution are not absolute...In support of every exception to the Fundamental Rights set out in the Draft Constitution, one can refer to at least one judgement of the U.S. Supreme Court. The purpose of the provisos is to prevent endless litigation and the Supreme Court having to rescue Parliament. The provisos permit the state 'directly to impose limitations on the Fundamental Rights". Ambedkar also stated that the restrictions are not a suspension of rights; it only made certain state actions permissible. In the end, the Constituent Assembly found a solution in 'restricting' the rights of individuals 'reasonably', only at times when individual freedom contravenes in public order and morality, the security of state and threat to sovereignty. Post-Independence, India witnessed a surge in domestic militancy, radical communism, separatist politics, and violent protests.

With this, the obligation on the State to maintain law and order, public peace and security of the State became non-avoidable. In such a scenario, State under legal obligation acts to restrict or curb such protects through ordinances, enactments or prevalent codified laws, for example- Sedition laws, National Security Act and UAPA. These actions are only 'exceptional', not the 'rule'. To say so, the State can only restrict 'freedom' when it's not 'reasonable'. However, in Express Newspaper (P) Ltd vs. Union of India, 1986, SC held that "Reasonable restrictions under Art-19(2) can be imposed only by a duly enacted law and not by an executive action". The most common ground for restricting the freedom is of 'public order', which was not introduced in the Constitution framed in 1950. Rather, it was introduced in the 1st Amendment of the Constitution. Looking at the present debates around individual freedom in 2020, specifically the right to protest, the emphasis or rather attention towards the 'public order' and 'reasonableness' of such freedoms seems missing.

In 2019, the anti-CAA/CAB, anti-NRC and anti-govt protests took place all over India, but its epicentre was in Delhi. The assembly of protesters was peaceful in beginning but with the due passage of time the 'decency' of protest vanished and it turned ugly. In Delhi, Shaheen Bagh was chosen as a 'sweet spot' for anti-CAA protest and was occupied for several months. At stake, was people's Fundamental Rights who were not part of the protest but suffered the inconvenience due to it. "Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. The present case was not even one of the protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters”- Justice Sanjay Kishan Kaul, SC, said while hearing the petition filed against the blockade of roads at Shaheen Bhag. The aftermath of what this protest resulted in was- 'Delhi Riots- 2020'.

The question is not of 'objectivity' in such protests but of 'lawfulness'. The flairs of violence shall not be tolerated at any cost. Notwithstanding anything that signifies or symbolizes the anti-CAA protest, which was seditious at many places, the 'Farmers Protest- 2020' is an ironclad example of public disorder. It's been over a month since the farmer protest started. From Singhu border to Ghaziabad-Delhi border, every major highway has been overtaken by protestors blocking supplies of essential commodities, destroying mobile towers etc. This protest was initiated due to the 'disinformation' spread around three farm bills by Farmers Union leaders, political parties and independent intellectuals. Logically, any protest has a demand, a leader and an opponent or institution. Here, all three are present, however, the demand is on the wrong target. Any legal demand is a right but with any illegal means it's objectivity gets diluted as, under Sec-141 of IPC, an assembly of five or more persons becomes an unlawful assembly if the common object is to 'resist the execution of any law' or 'legal process' or commit any mischief or 'criminal trespass'. Now it's on the authorities and executive bodies to look into the matter as they deem fit and appropriately deal with the protestors with legal observation. All protest and individual freedoms have its limitations.

For a vibrant parliamentary democracy, it's necessary to differentiate between protest/dissent with 'disruption'. Reasonable restrictions are not obstacles in an individual's right to freedom. It just a balancing act to sublimate various legal and political necessities of a State to maintain its efficiency and order.


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