In this article, Priya Venkatesan of Tamil Nadu National Law School talks of the permissions required for organising a protest rally.
“Silence becomes cowardice when occasion demands speaking out the whole truth and acting accordingly.”-M.K. Gandhi
A lot of credit in Indian freedom struggle goes to the number of Dharnas by the freedom fighters. The concept of today’s protest and peaceful rally is taken from the prevalent age old concept in India of Dharna. Modern day India has seen many protest rallies for various issues. Organising a protest rally needs time, energy, money, cause and a drive but is there anything else required to organise a protest rally?
Yes, Compliance with various laws is the most essential of all to organise a legal protest. Since we live in a civilised society, there definitely would be some requirement of compliance with laws to not make the protest rally illegal. This article discusses such laws and permits which are to be complied with in order to organise a protest rally.
Constitutional provision for conducting protest
Do I have a fundamental right to protest?
- In India, the fundamental rights can be counted as the most important rights as they make up the basic structure of the constitution. The basic structure of the constitution cannot be violated in any case.
- Article 19 which is one such fundamental right, deals with Protection of certain rights regarding freedom of speech etc. Holding a protest rally, can be protected under Article 19 (1)(a), 19(1)(b) and 19(1)(c).
- These three articles provide the citizens right to freedom of speech and expression, right to assemble peaceably without arms and right to form associations or unions.
- The Supreme Court in the case In Re: Ramlila Maidan Incident v. Home Secretary, Union Of India & Ors. stated “Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away by an arbitrary executive or legislative action.”
Reasonable restrictions over these said fundamental rights
- These fundamental rights are not absolute and come with reasonable restrictions imposed on them. So although my right to protest is a fundamental right, reasonable restrictions in accordance with Article 19 (2), 19 (3) and 19 (4) can be imposed on them.
- The reasonable restrictions imposed by 19(2) and 19(3) includes restriction made by state law for the sake of maintaining public order. Therefore, the state may impose certain restrictions over protest rally as it deems fit to maintain public order.
- Besides this, the 1st entry of state list is public order, which further shows that state can make laws to maintain public order. Now, by establishing this, we can see that there are no laws at the Union level per se to be complied with while holding a protest rally. There can be state laws enacted by state to regulate the right to protest.
Further, a limitation was observed by the Supreme Court in the case Railway Board v Niranjan Singh. The limitation stated one’s right to protest/assemble does not extend to someone else’s right to property. The court said:
The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form- associations or unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of those freedoms will come to an end as soon as the ‘right of someone else to hold his property intervenes. Such a limitation is inherent in the exercise of those ‘rights.
If protesting is my fundamental right, then what permissions do I need to hold a rally?
- Only states have powers to make laws relating to maintenance of public order. The permits which would be required therefore may change from state to state.
- Generally, a person needs only a Police permit and a No Objection Certificate (NOC) from the Police. The police have powers to not grant permit if it deems the rally to be against public order. That can only be done in accordance with the law.
- Many states have enacted state laws giving powers to police to curb such assemblies. The provisions of various state legislations like the Delhi Police Act, Bombay Police Act, Mysore Police Act, Madras City Police Act, Madhya Bharat Police Act, Travancore-Cochin Police Act are also being used to prevent the holding of meetings and assemblies. – So the loophole in law is results in curbing our fundamental rights.
- In Himmat Lal K Shah v Commissioner of Police Ahmedabad, the court held that it was incorrect to give powers to commissioner to give or refuse permission to hold a public meeting at a place falling within the definition of “a street” without giving reasons for either a refusal or a permission. Such a provision was made under Bombay police Act 1951.
Therefore, unless there is proper reason, police cannot refuse your right to protest. The only requirement maybe a police permit if the respective state demands so.
Things to keep in mind while holding a protest rally
- The protest may not always remain non-violent. Special care has to be taken to maintain order. What The protest should not be for an illegal cause.
- Sedition in such a protest may make people inciting such hatred towards the State be liable. Where the constitution only provides for an assembly without arms, the protest may be illegal if has armed men in it.
- Besides, compliance with such laws as may be prescribed by the state becomes necessary, so if you do not take the police permit when required, the protest may be stopped.
- When the assembly becomes a mob the state may have to control it by the use of police force. The legality of the protest lies in the fact that the protest should be by unarmed men which should be peaceful. It should comply with state laws and should not be against public order.
Misuse of power given to District Magistrate to issue order in urgent cases of nuisance of apprehended danger
There is another loophole to be aware of while holding a protest rally. Section 144 of CrPC has been misused at many recent protests. Section 144 gives powers to the district magistrate, sub-divisional magistrate or any other executive magistrate to issue order in urgent cases of nuisance of apprehended danger. This usage of 144 in many cases has been held arbitrary and has been seen as a way to stop protest rallies.
Protest and unlawful assembly
A protest is one’s right, but an unlawful assembly is not. One has to understand the difference between the two. Many a time, a protest can turn into unlawful assembly. Unlawful assembly is defined in Indian penal code under Section 141 and is a crime in India.
It happens when 5 or more persons, have a common object of
- Showing criminal force to government (centre/state/public servant pursuant of his duty),
- Resist a law,
- Commit mischief or offence,
- Show criminal force to a person to deprive him of his right, 5. Shor criminal force to compel one to do what he is not bound to do.
It has to be taken care that a protest does not become illegal or is not in pursuance of an offence to prevent it from turning into unlawful assembly.
Protest Rally in case of Industrial Disputes
Industrial Disputes Act, 1947, talks about strikes and lockouts. Both strikes and lockouts can be a way of protesting. The question here would be, is there a procedure to be followed for such strikes? Section 22-25 of Chapter V of the said Act, deals with strikes and lockouts.
Conditions for a strike
- A person in public utility service to go on strike has to give the employer, the notice of strike, between 6-2 weeks of striking.
- He cannot go on strike before the expiry of date of strike specified in any such notice as aforesaid.
- There should also, not be any conciliation proceeding going, on before a conciliation officer and there should be a gap of 7 days if any conciliation proceeding has concluded.
- Such a notice of strike is to be reported to the appropriate government by the employer.
- He cannot strike during the pendency of proceedings before labour court, tribunal or national Tribunal and two months after conclusion of such proceeding.
- He cannot go on strike during the pendency of arbitration proceeding or two months after conclusion of such proceeding
- He also cannot strike during any period in which a settlement or award is in operation, in respect of any matters covered by the settlement or award.
The Act, further lays down conditions under which a strike becomes illegal. The strike becomes illegal if it is in contravention of any of the above conditions. It can also be illegal if the appropriate government prohibits the continuance of such strike. The Act prohibits any person from knowingly financing an illegal strike.
Jantar Mantar and Ramleela Maidan
There is a growing trend in the capital of the country of holding protests. People after recognising their right to protest, are taking to the streets. People demanding their rights and sitting on dharnas is a common sight in places like Jantar Mantar, India Gate and Ramleela Maidan.
In order to maintain law and order, Delhi police released an advertisement that the permission request to hold such a protest is to be sought from Deputy Commissioner of Delhi. Deputy commissioner then will assign the venue for such protest. In the heart of the country, protests can now be held in Jantar Mantar for protesters upto 5000 people. Protesters anymore in number are to assemble at Ramleela Maidan.
Things to include in the application to obtain a protest rally
- Phone Number
- Date of protest
- With loudspeaker/ without loudspeaker
- Number of people taking part
- Route of procession of place of protest
General checklist for documents which might be required
- Proof of Identity
- Proof of residence
- Self-undertaking/ Affidavit
Although it can be seen that protesting is a fundamental right, police permission is to be taken in many states which makes the process more regulated one. No one can just randomly go and start a protest rally. The police will not arbitrarily deny the holding of such a protest, but will only help in regulation of public order. The right still remains a fundamental right. Holding a protest is not as difficult and just a simple permit from the DCP in many cases may suffice.
- His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr. (1973) 4 SCC 225
- 2012 SCC (5) 1
- 1969 SCR (3) 548
- 1973 SCR (2) 266