Although the Right to Protest is not an explicit right under the Fundamental rights, it can be derived from →
- Article 19(1)(a): guarantees the freedom of speech and expression , Restricted by Art. 19(2)
- Article 19(1)(b): assures citizens the right to assemble peaceably and without arms ; Restricted by Art. 19(3) – sovereignty and integrity of India or public order → (PRIMARILY)
- Article 21 : The right to protest is an inherent part of speech and an inherent facet of the right to live guaranteed under Article 21 of our Constitution. (Iftekhar Zakee Shaikh v. State of Maharashtra (2020))
Judicial Guidance :
- SC on Shaheen Bagh CAA protests. →“democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone”.
- In the Ramlila Maidan Incident case (2012), the Supreme Court had stated, “Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.”
- in Mazdoor Kisan Shakti Sangathan vs Union of India (2018), SC laid down guidelines for peaceful assembly
and regulating protests and demonstrations.
Article 32 allows individuals to directly approach the Supreme Court for the enforcement of Fundamental Rights through writs such as habeas corpus, mandamus, prohibition, quo warranto, and certiorari.
- Dr. Ambedkar’s Statement- Dr. B.R. Ambedkar termed Article 32 as the “heart and soul” of the Constitution because it ensures the protection and enforcement of fundamental rights, making them meaningful.
- Guaranteed Right- Article 32 itself is a Fundamental Right under Part III, which cannot be suspended (except during a National Emergency as per Article 359, with limitations).
- Role of Judiciary- It reinforces the Supreme Court’s role as the guardian of the Constitution and protector of citizens’ rights.
Permissible restrictions on free speech under Article 19(2) of the Indian Constitution:
- Sovereignty & Integrity of India – Speech cannot threaten national unity or territorial integrity(16th Constitutional Amendment Act, 1963).
- Security of the State – Restrictions allowed if speech incites violence or rebellion.
- Friendly Relations with Foreign States – Speech harming diplomatic ties can be restricted(1st Constitutional Amendment Act, 1951).
- Public Order – Speech inciting riots or disturbing peace can be curtailed(1st Constitutional Amendment Act, 1951).
- Decency or Morality – Obscene or vulgar expressions may be restricted.
- Contempt of Court – Speech that scandalizes or lowers court authority is restricted.
- Defamation – False speech harming someone’s reputation can be limited.
- Incitement to an Offence – Any speech provoking others to commit a crime can be restricted(1st Constitutional Amendment Act, 1951).
Between 2016 and 2022, 60% of Internet shutdowns across the world took place in India.
Implications on Citizens’ Rights:
- Violation of Fundamental Rights:
- Article 19(1): Freedom of speech and freedom to practice any profession.
- Article 21: Right to life and liberty, which includes the right to education and Internet access.
- Violation of right to access to internet:Supreme Court rulings in Anuradha Bhasin and Faheema Shirin case (KR HC), affirm the necessity of Internet access.
- Effect on Vulnerable Groups: Disproportionately affects those in the informal sector, including gig workers, women and the elderly.
- Right to Public Services: Essential for accessing government welfare schemes (e.g., NREGA, public distribution system) and e-governance in rural areas.
- Economic Impact: Example: The 2019 Kashmir shutdown led to over 500,000 job losses.
- Right to Consume: Internet shutdowns hinder access to work, telemedicine, education, and essential services.
The government should follow the basic directions given by SC in Anuradha Bhasin’s judgment that shutdown be imposed only when it is proportional, reasonable, necessary, and is the least restrictive measure, which can never be indefinite. So, it is time to look at the alternatives.
The Constitution of India is considered a living document due to its continuous evolution since adoption in 1950 to meet the changing needs and aspirations of society.
- [Example: 73rd and 74th CAA, Abolition of Privy Purse (26th Amendment), Basic Structure Doctrine (Kesavananda Bharati case), Introduction of safeguards to prevent potential misuse of emergency( 44th Amendment) etc ]
Expanding Horizons of the Right to Life and Personal Liberty:
- Right to Dignity: the right to live is not merely a physical right but includes the right to live with dignity. (Maneka Gandhi vs. Union of India case)
- Right to Health: the right to health and medical aid is a fundamental right under Article 21, making it obligatory for the state to provide timely medical treatment to a person in need. (Parmanand Katara vs. Union of India case –ये PIL में भी चिपका देना ).
- Right to Privacy: the right to privacy as an intrinsic part of the right to life and personal liberty. (The Justice K.S. Puttaswamy (Retd.) vs. Union of India case)
- Right against Torture and Cruelty: the right against torture and cruel, inhuman, or degrading treatment is enshrined in Article 21. (Inderjeet v State of Uttar Pradesh)
- Right to Clean Environment: the court expanded Article 21’s scope to include the right to a wholesome and clean environment, stressing the principle of sustainable development. (M.C. Mehta vs. Union of India case)
- Right to Livelihood: the right to life also encompasses the right to livelihood. Depriving someone of their livelihood was seen as depriving them of their life. (Olga Tellis vs. Bombay Municipal Corporation case)
- Right to Speedy Trial: speedy justice is a fundamental right under Article 21. (Hussainara Khatoon vs. State of Bihar).
- Right to Die with Dignity: the right to die with dignity, permitting passive euthanasia under stringent guidelines (Aruna Ramchandra Shanbaug vs Union of India (2011))
- Right to Internet: In Anuradha Bhasin vs Union of India (2019)
- Right to self-identification: right of a transgender person to self-perceived gender identity . It reaffirmed their rights to liberty, dignity and freedom from discrimination. ( NALSA vs Union of India case (2014) )
(Regressive interpretations: Supriyo Chakraborty case: There is no fundamental right to marry → same sex persons cannot marry )
The Indian Constitution reflects a unique balance between Fundamental Rights (FRs) under Part III and Directive Principles of State Policy (DPSPs) under Part IV. While Fundamental Rights are justiciable and enforceable by the courts, DPSPs are non-justiciable but are essential for good governance and socio-economic justice. The interplay between the two has evolved through judicial interpretation over time.
Points of Conflict and Tension:
- Primacy of Fundamental Rights (Initially):
- In early years, the judiciary prioritized Fundamental Rights over DPSPs.
- Case: Champakam Dorairajan v. State of Madras (1951)
➤ Supreme Court struck down caste-based reservations as violative of Article 15, stating DPSPs must yield to Fundamental Rights.
- Parliament’s Response – First Constitutional Amendment (1951):
➤ Added Article 15(4) to allow reservations and protect DPSPs’ implementation. - Property Rights Conflict:
- Land reform laws (under Article 39(b) & (c)) clashed with Right to Property (then a Fundamental Right under Article 31).
- Parliament inserted Articles 31A, 31B and Ninth Schedule to protect such laws from judicial review.
- Led to tension between Parliamentary sovereignty vs. Judicial review.
Judicial Evolution and Balancing Approach:
- Golak Nath v. State of Punjab (1967):
- Supreme Court ruled that Fundamental Rights cannot be amended to implement DPSPs.
- Led to judicial supremacy and limited Parliament’s power.
- Kesavananda Bharati v. State of Kerala (1973):
- Landmark case that introduced the Basic Structure Doctrine.
- Ruled that Parliament can amend any part of the Constitution, including FRs, but not the basic structure.
- Attempted to reconcile FRs and DPSPs.
- Minerva Mills v. Union of India (1980):
- Struck down part of the 42nd Amendment which gave primacy to DPSPs over FRs.
- Held that harmony and balance between FRs and DPSPs is part of the Basic Structure.
- Unni Krishnan v. State of Andhra Pradesh (1993):
- Interpreted Right to Education as part of Right to Life under Article 21, aligning with Article 45 (DPSP).
- Eventually led to the 86th Amendment, making Right to Education (Article 21A) a Fundamental Right.
- Olga Tellis v. Bombay Municipal Corporation (1985):
- Recognized Right to Livelihood as part of Right to Life (Article 21), aligning with Article 39(a).
Complementarity and Convergence:
- DPSPs guide the interpretation and expansion of Fundamental Rights:
- Article 21 (Right to Life) now includes the right to health, education, clean environment—many of which were originally DPSPs.
- The judiciary has used DPSPs to give substance to FRs, especially in Public Interest Litigations (PILs).
Concern:
- Judicial activism in interpreting DPSPs into FRs may blur the line between enforceable and non-enforceable rights.
- Legislative Pushback: Amendments like the 25th and 42nd reflect state frustration with judicial primacy of FRs, indicating ongoing tension in prioritizing welfare over individual rights.
The interplay between Fundamental Rights and Directive Principles has shifted from conflict to cooperation and convergence. The Supreme Court, through progressive jurisprudence, has ensured that both are harmonized to achieve the Constitution’s vision of a just, equitable and inclusive society. The balance struck in cases like Minerva Mills and Kesavananda Bharati affirms that neither can override the other, and both are essential to the constitutional fabric.
