The Right to Freedom of Speech, Expression and Peaceful Assembly of CAA Protesters Recognised by Madurai Bench of Madras High Court

KEY TAKEAWAYS

• The Madurai Bench of the Madras High Court quashed an FIR lodged against peaceful protesters.
• The grounds for such rejection were the fact that the protest was peaceful and nothing untoward had occurred during the protests.
• Several countries of the world recognise the right of peaceful assembly.
• Peaceful protests are an essential part in the backdrop of democracy.

OVERVIEW

In an order dated 25th of March, 2021, the Madurai Bench of the Madras High Court quashed an FIR against protesters of Citizenship Amendment Act (Bill) on the streets, which in the opinion of the police created not only public nuisance, but also hindered the smooth flow of traffic in the city.

The bench of Hon’ble Justice Mrs. R. Hemalatha quashed the First Information Report (FIR) lodged in this regard, in Crime No.63 of 2020 of Boothapandy Police Station, Kanyakumari District.

The Court quashed the FIR, on the grounds that the protest was peaceful, and the right to such peaceful protests had been bestowed on the citizens of India by Article 19 of the Constitution of India, along with the rights of free speech and expression.

It was also noted by the Court that such act of protest had also not resulted in any untoward outcome.

With these observations in mind, the Hon’ble Court allowed the Criminal Original petition as had been filed before it.

BACKGROUND

On the 12th of March, 2020, an FIR was lodged by one Mariselvan, the Special Sub-Inspector of Police, Boothapandy Police Station, Kanyakumari District, with respect to protests on the street held by one Jafar Sathick @ Jahabar Sathick.
Such protests had been observed by the de-facto complainant, the Special Sub-Inspector of Police, while making his official rounds in his jurisdiction.
The complainant was of the opinion that the petitioner and others by their act had not only committed public nuisance, but also caused hindrance to the free flow of vehicular traffic on the road.

Earlier, in November 2020, the Madras High Court, in a bench of Justice J. Nisha Banu heard the case of Henri Tiphagne & Saathik Ali, the circumstances of which are similar to the instant case. The Court had observed with regard to the prayer of quashing of the FIR lodged against them, that “The Country had witnessed protests all over by different sections of people against the said amendments. Since the protest was peaceful and even the First Information Report does not disclose any act of violence or happening of the untoward incident, I am of the view that the continued prosecution is not warranted. Quashing the same will secure the ends of justice.”

AN ASSEMBLY – WHEN LEGAL

Article 19 of the Constitution of India provides to the citizens of India a list of six fundamental rights:

(a) freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) to practise any profession, or to carry on any occupation, trade or business.

The right to peaceful assembly is an essence of democracy. The people in a democracy take to protests in order to show their opposition to any legislation, regulation, draft policy or action on the part of the Government. The protests are a sign of indicating their opposition to such action and the Government, taking that into consideration, brings about the necessary reviews, amendments and modifications to the same.

An assembly is considered to be peaceful when:
a) the peace and harmony is maintained,
b) the people in the assembly are unarmed
c) the safety of the people who are not a part of the assembly are not hampered, and
d) the sovereignty and integrity of the nation are not endangered.

DETAILS OF THE INSTANT CASE

The Court, in its order, pointed out that there had not been any untoward incident due to such protest by the petitioners.

The Court also observed that the First Information Report lodged due to such protest “has not disclosed any act of violence.”

The Court stated thus, “It must be unequivocally emphasized that the Constitution of India gives its Citizens the right to freedom of speech and expression, assemble peacefully and without arms, to form Associations and Unions and to move freely throughout the Territory of India under Article 19 (1) (a), (b), (c) and (d) of the Constitution of India. But of course these rights come with terms and conditions. In the instant case, the protest was peaceful and as already observed no untoward incident took place.”

The Hon’ble Court granted the prayer of the petitioners by ordering in favour of the petitioners. The arguments of learned Advocate S. M. A. Jinnah, representing the petitioner, brought the order in favour of the petitioners.

The Court quashed the First Information Report as against the petitioner and allowed such Criminal Original Petition.

The Court further closed all the connected miscellaneous petitions in this regard.

PEACEFUL ASSEMBLY IN OTHER COUNTRIES

Many countries of the world recognise the right of the citizens and residents to assemble peacefully without arms. Let us enlist the regulations regarding peaceful assembly of the following countries:

France: The Article 10 of the 1789 Declaration of the Rights of Man and of the Citizen, which has been incorporated in the French Constitution, states that “no one should be bothered for his opinions, even religious ones, so long as their manifestation does not disturb the public order established by Law.”
The French Government requires the furnishing of a notice to the local prefecture where such peaceful assembly is to be held, at least three days prior and not more than fifteen days before such assembly.

Italy: Pursuant to Part I of the Constitution of Italy, the citizens of the country have been granted the right to assemble peacefully without arms, in private as well as public places.
The public place gatherings have to be notified prior to the authorities, who may dissolve such assembly if they are of the opinion that such gatherings might threaten the safety and security of the nation, the prestige of the public authorities, on the possession of arms during such gatherings, or the endangered safety of the general public.
On prior furnishing of such notice, the appropriate authority might decline such permission on the basis of public health, morality and order, or under certain circumstances, establish a time and place of such peaceful assembly with regard to the requisite considerations.

Spain: The Spanish Constitution confers on its citizens the right to assemble peacefully and without arms, as long as such an assembly do not endanger the security of public life and property, or create disturbances and hamper the quality of life of the public.
Prior notification has to be provided to the appropriate authorities before conducting such meetings. The authorities or officials can break such assembly up if they are of the opinion that such assembly is a means of penetration of crime in the society.

Sweden: Being a signatory to the European Convention to Human Rights, the citizens of Sweden have been conferred upon the right to peaceful assembly without arms. The police have to be compulsorily informed a week prior to such assembly.
The Swedish Constitution also guarantees the right of peaceful assembly. A police protection blanket is customary to the authorized assemblies. However, the unauthorized assemblies are not terminated by the police unless they prove to be detrimental to public order and safety.

United Kingdom: Incorporating the European Convention of Human Rights to the domestic law of the UK, the country grants its citizens the right to hold peaceful assemblies. The Public Order Act, 1986 requires a six days prior notice in writing to the police, who might impose restrictions such as intimidation of other citizens, the danger to life and property of the general public, or general harassment of the public and public disorder.

CONCLUSION

India is a democratic country who earned her freedom from the British Rule by a series of protests, and demonstrations. The fundamental right of peaceful assembly without arms has also been enshrined in the Constitution under the Article 19.

The Citizenship Amendment Act (Bill) had seen massive protests by the people of opposing viewpoints throughout the country in 2020. The later part of 2020 and early 2021 was highlighted by the Farmer’s Protest in light of the recent amendments in Essential Commodities Act, among modifications in other regulations.

Protests and peaceful assemblies are welcome propositions in a democratic setup, as it leads to the exchange of ideas, and propagating such ideas among other like-minded individuals.