The right to protest is a sacred aspect of democracy. But what is not permissible is public protest that violates the rule of law wholesale and effectively seeks to subvert an elected government while imposing huge costs on the economy and fellow citizens.
A growing feature of contemporary Indian society is the spectacle of frequent public demonstrations. However, these have evidently ceased to be the expression of the lawful right of the citizen to protest against the policies of an established government and the morally repugnant actions of those in authority. These demonstrations today and the prolonged occupying of public spaces are no longer an exercise of the democratic right to assemble and oppose. Such contemporary protests now contravene established legal precepts and court judgements and are an issue that requires constitutional, legal scrutiny. Although law and order are a state subject, the Union Government must now contemplate national legislation to facilitate the regulation of public protest by the individual state and enable it to sanction illegal activity. The deployment of legislation to regulate protest and curb gross misconduct will make it an electoral issue and compel political action. It will also articulate and mobilise public opinion to communicate its known distaste for unsavoury political entrepreneurs.
It is now unambiguously clear that public protests in the past year have two features that are not tolerable in a country governed by the rule of law. The first is the attempt to use public protest not merely to signal disapproval and opposition to government policy, but to make the country ungovernable and repudiate the authority of both the elected government and Parliament. It really is not acceptable to insist that an illegal and disruptive protest will continue indefinitely and the government and Parliament must yield its democratic mandate to govern and concede non-negotiable demands of a truculent minority. In practice, such public protests in contemporary India, through prolonged occupying of public spaces that seriously inconvenience many other citizens, are occurring despite repeated court injunctions. It might be noted that the wider public inconvenienced by such illegal modes of protest are suffering major financial losses and experiencing intolerable personal inconvenience.
The second alarming aspect of such public protests is their funding from abroad, often by countries long engaged in waging undeclared war against India. It would appear that foreign agencies like the Soros Foundation as well as others hostile to the fundamental interests of India are also often involved in providing funding and logistical support for illegal protest movements within it. In fact, it may be surmised funding from abroad of recent protests in Delhi were a direct adjunct to actual physical conflict at India’s Ladakh border. The comprehensive interdiction of traffic during the dispute over the farm laws, through all major arteries into Delhi, were apparently also an attempt to disrupt the movement of personnel and supplies to India’s northern border. In addition, it served the purpose of distracting the Indian state with disorder inside the country, with an open menace from the organisers of spreading it uncontrollably across the whole country, while a major war was threatened against India. It echoes the Godhra tarin burning of 2002 that Indian intelligence suspect was instigated by Pakistan to compel the redeployment to Gujarat of troops mobilised at the border with Pakistan in the aftermath of the attack on Indian Parliament.
The government should now contemplate identifying public spaces where protesters may legally assemble and occupy, with allied provisions of conduct, like the prohibition of the consumption of alcohol and the presence of minors and other vulnerable age groups. Legislation should also specify, in advance, the routes through which protest marches may proceed to reach designated spaces. All other protest marches through public thoroughfares must be regulated as well, in terms of the time allowed for them to proceed and notification given by organisers to designated authority to grant permission. Furthermore, the roads through which protest marches are prohibited, on the grounds of public safety or undue disruption, should be enumerated in advance. All this information can be placed on an official website so there is no confusion over the matter. It may well be that a clear-cut constitutional amendment will also be necessary to introduce such regulation, so that the courts do not creatively discover ambiguity to nullify the intention of the legislation.
If the legislation and its prohibitions are violated a number of sanctions might be considered. The first goal is to identify those culpable, which should include official organisers of the protest, its responsible office bearers and, potentially, others directly or indirectly involved in aiding or inciting the protest. The legislation should permit the immediate issue of non-bailable arrest warrants for knowingly receiving funds from abroad to organise the public protest, notwithstanding any manoeuvres within Indian jurisdiction to conceal its foreign origin. The legal sanctions should include attachment of private property and prolonged imprisonment, of up to ten years, on conviction. In addition, all damage to public property during any public protest, whether authorised or not, should be recoverable from the organisation and individuals identified above. Finally, private individuals who have suffered pecuniary material losses or experienced personal inconvenience should be allowed to bring a class action legal suit for damages against all the organisations and individuals responsible for the public protest, again, whether direct or indirectly implicated.
The right to protest is a sacred aspect of democracy, both to remind authority that it does not enjoy untrammelled right to do as it pleases and to facilitate the desirable expression of public participation in governance. If such a public right is to be egregiously violated the government concerned must resort to appropriate constitutional measures like declaring an Emergency that can be reviewed by the courts. And if it is indifferent to its constitutional obligations, the empowered political party in government will have to answer to the electorate eventually, as it did in 1977. However, what is not permissible is public protest that violates the rule of law wholesale and effectively seeks to subvert an elected government while imposing huge costs on the economy and fellow citizens. The response of the state to unwelcome public disorder owing to protest should not entail mass violence and killings. This was the outcome in 1966 when Mrs Indira Gandhi authorised police firing against sadhus marching towards Parliament in Delhi to demand anti cow slaughter legislation. What is required instead is the promulgation of fitting measures to address the issue.
The two recent protests, over the CAA and the farm laws, disrupting life in Delhi unremittingly and costing the country unconscionable thousands of crores of rupees cannot be tolerated in the future. While the government espoused appropriate restraint in dealing with the protesters and assiduously sought to engage with them it failed in its duty to the vast majority of the nation’s citizens who go about their daily business lawfully. They have every right to feel aggrieved that the government they elected did not accord sufficient priority to either their fundamental constitutional rights or the massive disruption to their lives owing to public protests declared illegal by India’s highest court. The government must now enact appropriate legislative measures to deter the kind of outrageous illegality that is threatening to become routine, nay, semi-permanent, in its capital city. Many provisions already exist against such misconduct but a thorough review and fresh legislation, incorporating clarity over duties and appropriate sanctions for failure to comply with the law, are now urgently required. Such law breakers, often being funded by India’s most antagonistic foreign adversaries, must realise the free lunch for gross illegality and treason as well is over and will invite severe sanctions.
Dr Gautam Sen taught international political economy at the London School of Economics and Political Science for more than two decades.