The Right to Protest in Light of the Delhi Farmers' Protest



The ongoing farmers’ protest has received a great deal of praise, not only from India but from all over the world. Acts of sheer resilience, zeal, and tenacity are shining examples of these protests. These farmers have shown the whole world that their will to fight for their rights will not be broken by the cold temperatures or the government’s cold-hearted response. However, the mass media and the general public miss the difficulties farmers have to face in carrying out these demonstrations. According to media reports, the farmers are sick and developing skin diseases because of the lack of washrooms, and the municipality does not clean up garbage near the protest sites.[1] Such abysmal government infrastructure arrangements have prevented many individuals from exercising their right to protest. This article would claim that the government has a constructive duty to arrange protestors’ facilities so that all people can conveniently exercise their rights and that failure to do so is a breach of their rights.

A reading of Article 19(1)(a) (freedom of speech) and 19(1)(b) (freedom of assembly) would help us infer that people are entitled to express their views individually or assemble as a group and express their opinions accordingly. One can infer from this reading that the people of India have a constitutional right to protest. Additionally, in Ramlila Maidan Incident v. Home Secretary, Union of India & Others,[2] this right was recognised by the Hon’ble Supreme Court, “People have a fundamental right to assembly and peaceful protest.” This right was also recognised in other cases, such as Amit Sahni v Commissioner of Police and Ors.[3] Even international conventions such as Article 21 of the International Covenant on Civil and Political Rights say, “The right of peaceful assembly shall be recognised.”[4] While the right to protest is a fundamental right, people still face many obstacles in exercising this right. Many women are either uncomfortable about coming to the protest site in the ongoing farmer’s demonstrations or have had to go back home due to the lack of washrooms or even private spaces. One of the women demonstrators told the business world that the latrines set up by the border authorities are rarely cleaned; therefore, they become unusable. In order to find a sanitary bathroom, they are required to walk two kilometres per day. Also, the municipality of Kundli does not routinely clean up the garbage built around the sites of the protest. Both factors have made the sites of protest highly unhygienic and a hotspot for diarrhoea and cholera diseases.

This inability to demonstrate because of the government’s failure is a gross breach of one’s right to protest. One might argue that the State does not advertently stop protesting against anyone. This claim, however, has a myopic understanding of fundamental rights and fails to understand that, in addition to ensuring that the rights of a person are not deliberately abused, the State still has a constructive responsibility to make these rights as available as possible. In Indibility Imaginative Pvt. Ltd. v The West Bengal Government,[5] this view was taken by the honourable Supreme Court. J. Chandrachud said, “The state is obliged to ensure the prevalence of conditions under which those freedoms can be exercised (Article 19).” If we look at the present case, the State does not provide the demonstrators with washrooms, and the municipality does not properly clean the waste. In addition, the State has not set up health centres to track the protestors’ health. (Very interesting because protesters vilify the risk of transmitting Coronavirus. Given these concerns are serious, why does the State not screen the protesters and provide them with facilities to curb the spread?) These conditions are those that do not help people enforce their rights. Instead, it prevents them from implementing the same since it is hard for many women to object.[6] It also has a chilling impact on other women farmers who, because of such appalling circumstances, want to protest but cannot.

From S. Rangarajan Etc v. P. Jagjivan Ram,[7] the Hon’ble Supreme Court pointed out, “What good is the protection of freedom of expression if the State does not protect it?” This note provided the basis for looking from a more liberal and positive angle at fundamental rights. In the context that the above note alludes to the fact that the State’s obligations should not end up not deliberately violating the rights of a citizen, the State should have the gumption of going the extra mile to assist individuals in substantially enforcing their fundamental rights. The State has failed to do so in this very case. Moreover, because the Hon’ble Supreme Court held that the State is obligated to ensure that adequate conditions exist, the State has failed to perform the obligation, ipso facto, violating the farmers’ right to protest.

India is the biggest democracy in the world. To be persuaded of the value of letting their people meaningfully exercise the holy grail of a democratic society that the freedom to protest is, the heads of such a state do not need constitutional arguments. Failure to provide hygienic facilities at protest sites is not limited to the infringement of the right to protest and the infringement of the right to health and a safe environment pursuant as per Article 21 and the right to equality 14. Protestors get ill as the unhygienic conditions make them sick. In terms of the unavailability of clean latrines and private spaces to maintain a woman’s integrity, an unfair burden is placed upon women than men are not subject to. At the farmers’ protest, the government should seriously consider improving the facilities and ensure that they do the same in all the protests from now on, not just because they are needed to do so, but also because such initiatives would give the government many dividends. By enhancing their conditions, holding a ‘hearing to fix your problems’ attitude towards the protesters would generate a certain amount of goodwill between the two sides that will open up more contact lines and result in a faster and more constructive solution to all the problems.


- By Vivek Basanagoudar
2nd Year, Jindal Global Law School


References:

[1] Adrija Shaha, Unhygienic Conditions, Lack of Proper Facilities Leading To Various Ailment Of Protesting Farmers, Businessworld (Dec. 10, 2020), http://www.businessworld.in/article/Unhygienic-Conditions-Lack-Of-Proper-Facilities-Leading-To-Various-Ailments-Of-Protesting-Farmers-/10-12-2020-352140/.

[2] Ramlila Maidan Incident v. Union of India & Others, (2012) 5 SCC 126.

[3] Amit Sahni v. Commissioner of Police, (2020) 10 SCC 439.

[4] International Covenant on Civil and Political Rights, art. 21.

[5] Inability Creative Pvt. Ltd. v Government of West Bengal, (2019) SCC OnLine SC 564.

[6] Aafreen Khan, Women Protesters Struggle as Sanitation Facilities Take a Hit at Tikri Border, The Wire (Dec. 21, 2020), https://thewire.in/women/women-protesters-struggle-as-sanitation-facilities-take-a-hit-at-tikri-border.

[7] S. Rangarajan Etc v. P. Jagjivan Ram, (1989) 2 SCC 574.

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