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The essence of Democracy is in the space it provides for people to voice their dissent against the government. Citizens of India, therefore, being a part of the largest democracy, hold a right to show their dissent through various ways; one of the most popular being ‘protest’. Protests have always been a key weapon to fight injustice; their role in the struggle for independence indwells the minds of people. However, it must be borne in mind that dissent only connotes legitimate modes of conveying oppositional viewpoints. But, the likelihood of a public assembly becoming unruly, leading to loss of lives, damage to property and disruption of public order, can never be negated, as is evident from the recent happenings where the protestors resorted to violence in wake of expressing their discontent.
Since the expression of dissent has grown to be seen as a basic human right, the same was incorporated in Article 19(1)(b) of the Constitution which guarantees citizens the right to assemble peacefully and without arms. Right to peaceful protest is a corollary of the above right; however, the right is not absolute and can be restrained in the interest of sovereignty and integrity of India, besides public order.
Moreover, citizens, while exercising their fundamental right to protest, must not overlook their fundamental duty mentioned under Article 51-A of the Constitution, i.e. to safeguard public property and to abjure violence as an American jurist W.N. Hohfeld has rightly remarked – there can’t be rights without there being corresponding duties as rights and duties are jural correlatives. But, if the citizens disregard their duties, the State is empowered to maintain public order, and take stringent actions against the persons causing damage to lives and property by arbitrarily exercising their right.
Quandary of Protests: Violence, Destruction of Property & Threat to Public Order
Socio-political diversity continues to be a major source of conflict in contemporary India. Frequent agitations & violent clashes between state and protestors is nothing but an unwanted by-product of diversity in socio-political milieu of different groups. Usually, the protests are initiated with an assumption of peace, but then, in some cases, sudden provocation & disturbances follow, which disrupts the desired public order.
While dissent is an ambiguous term encompassing actions including “actual, purposeful, and public lawbreaking”, there must be a distinct line of permissible dissent and that too in an acceptable way. It is obvious that the preservation and viability of a democratic order is intimately tied to a clear recognition of what dissent is permissible and what is not; elements of the same order also need to be preserved. Such agitations not circumscribed by norms of public order has to be dealt with heavy hands.
The question here is how such disturbances affect the required elements of public order &why it should be an overriding concern in given circumstances over the right to protest?
Generally speaking, public order is synonymous with public peace, safety and tranquilityin a society which facilitates normal conduct in day-to-day life. Now, when the protests are followed by violence, this state of peace and tranquility gets affected, which is accompanied by the destruction of property, and loss of human lives, in worse cases.
It is well known that all the grounds on which action can be taken under Section 144 of Criminal Procedure Code, fall within the term ‘public order’. Those grounds are: annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray. Therefore, any protest which leads to violation of the above grounds can be said to disrupt public order; meaning thereby, destruction of property or loss of human lives as a consequence of violent protests falls within the ambit of reasonable restriction of ‘public order’, and should be restrained.
However, if we pay attention to the recent protests, or particularly large scale protests, we see that ‘public order’ has consistently been transgressed in some or the other way. But what is more agonizing is some of these protests have led to the loss of lives and property. In recognition of the above proposition, National Crime Records Bureau data highlights that there were 14,876 pending cases related to the destruction of public property in various courts in 2017.
If we look at the loss caused in some popular protests like the Cauvery river dispute, happened in 2016 and Jat quota, happened in 2016, the result is heart-wrenching: an estimated loss of 20000 crores to the Karnataka and Tamil Nadu government, and 34000 crores to the northern states, besides claiming 30 lives of people, respectively. Such acts of pushing required normalcy to halt are nothing but “a sort of pseudo-sadism goading the commission of such cruel and culpable suffering on their own fellow-citizens who have no control or connection whatsoever with the opposite side.”
Recourse available in cases of Violence
Whenever a government does something that goes against the principles of group of citizens in the country, it kicks off the protest and is sometimes accompanied by widespread violence and destruction of public property. Destruction of public property, in such a case, is seen as an easy target to make the protests more visible and effective, to voice their dissent. As Justice Agarwal has observed in the case of Mohammad Shujauddin v. State of U.P., “It appears that everybody believes that public property has no custodian. It is like an orphan. It is the birthright to destroy and damage it in a manner they like without any sense of responsibility.” This shows the carelessnessof the protestors in exercising their right to protest.
Violence in a protest can never be a part of the right enshrined under Article 19(1)(b); hence, proper actions shall be taken against the persons causing destruction of property. Giving due recognition to it, FS Nariman Committee, in the case of Destruction of Public and Private Properties v. State of A.P., has recommended that whoever causes damage to property, should be made “strictly liable”. It further suggested that liability shall also be imposed on persons accused of damaging and destroying private property, with an intent to punish such rioters, and damages to be imposed on them to “deter” the general public from being involved in such acts in future.
Any person or a group of persons, who exercise their rights, such that, it causes loss of human lives and property must be brought before the court and held answerable for their actions. And, if their guilt is proved, they shall be made punishable in proportion to their actions, or as the law specifies.
As of now, there is only single legislation that provides imprisonment for causing destruction to public property, i.e. Prevention of Damage to Public Property Act, 1984, though,which has rarely been used. It provides for a maximum punishment of five-year imprisonment, in addition to fine, for damaging public property. However, the maximum punishment extends to ten-year imprisonment if the damage is caused by fire or explosives. But the provision misses out on collective liability and only provides individual liability.
The primary duty of a government is to establish the rule of law, peacefully. That being so, the government has the power to subject its citizens to reasonable restrictions, contained in a right. Any citizen, therefore, while exercising their right to peaceful assembly, can be reasonably restricted in pursuit of public order, and security and integrity of State.
However, recourse needs to be taken where damage has already been done. The liability shall be imposed on the persons causing destruction of property; they shall be held accountable and punished, on proof of guilt, according to the due process of law.
Lastly, the duty lies on the citizens to peacefully exercise their right to protest, in order to express their dissent and grievances. Protests, undoubtedly, play a significant role in strengthening a representative democracy but the representation shall be made in an amicable manner; without affecting the lives of other citizens. Placing such protests in the light of words of B.R Ambedkar, “democracy is a form and method of government whereby revolutionary changes in the economic and social life of the people are brought about without bloodshed”.
ABOUT THE AUTHOR(S)
Ayush Verma is a 2nd-year law student at Dr Ram Manohar Lohiya National Law University, Lucknow.
Pratik Kumar is a 2nd-year law student at Dr Ram Manohar Lohiya National Law University, Lucknow.
In Content Picture Credit: Foreign Policy