On October 4, a two-judge bench of the Supreme Court comprising Jusice AM Khanwilkar and Justice CT Ravikumar issued a three-page order in which it emphasised its intention to examine if the right to protest is absolute.

It has also sought to examine if the petitioners in the case, the Kisan Mahapanchayat, can continue to hold protests in relation to the contentious new farms laws once they have already approached the court questioning the constitutionality of these Acts.

The written content of the order and the verbal observations of the court reflect some deeply troubling tendencies.

This particular case arises out of the the Kisan Mahapanchayat being refused permission by the Delhi Police to hold peaceful protests and stage a sit-in at Jantar Mantar. To highlight the discriminatory actions of the Delhi Police, the petitioners said that permission had granted to other entities such as the Samyukt Kisan Morcha to hold similar protests.

At its core, this matter involves judicial scrutiny of an administrative order to examine if the refusal by the Delhi is arbitrary and discriminatory under Article 14 of the Constitution, which guarantees equality before law, or if it constitutes a violation of the constitutional right to protest under Article 19. However, the court has turned it into a normative inquisition on the limits of right to protest with serious implications on the democratic functioning of the Indian polity.

Constitutional scheme, constitutional spirit

The right to protest involves the exercise of two fundamental rights: freedom of speech and expression under Article 19 (1) (a) of the Constitution and the freedom to assemble peacefully under 19 (1) (b).

The question as to the absolute nature of the right to protest is not even a question in the true sense. Both the rights mentioned above are subject to reasonable restrictions under 19 (2) and 19 (3) on grounds such as sovereignty and integrity of India, and public order. “Pendency before the court” o “‘sub-judice matters” are not constitutionally permissible grounds on which restrictions can be imposed on the right to protest.

More importantly, as I have pointed out before, the judicial function is to examine if a restriction imposed on fundamental rights by the legislature/executive is constitutionally permissible. It is not the court’s remit to invent additional grounds and then examine if fundamental rights can be restricted on those additional grounds.

When the court adopts this attitude, instead of functioning as a check on the legislature and the executive, the court effectively does their job for them. When the court invents grounds and seems eager to impose restrictions, that takes work off the government’s table.

Additionally, a three-judge bench of the Supreme Court in 2020 has already endorsed the position that the pendency of a constitutional challenge before the courts in itself does not deprive anybody of the right to protest. Thus, the judges in the present order have ignored an earlier judicial pronouncement of a higher bench that is binding on them.

Protest is a political action

Even if we ignore the concerns highlighted above, the court’s effort to establish a connection between mounting a legal challenge and staging a protest and then to suggest that the former can be ground to restrict the latter is plainly absurd. There are at least three clear reasons why such a proposition is illogical in its entirety.

Firstly, while approaching the courts constitutes the exploration of a legal remedy, protesting is the pursuit of a political one. In the former, the court is called upon to adjudicate the constitutionality or legality of legislative/executive action. In the latter, people seek to put pressure on the decision maker directly to revoke or modify the earlier decision against which protest is being held.

These two paths are mutually independent of each other. There is no plausible reason why pursuing a legal remedy should deprive a person of a political solution.

Secondly, while legal challenges to laws are confined to constitutionality of provisions, protests in a democratic society can have much broader base. The fact that a law may be constitutional does not in itself mean that people will find it desirable. Constitutional prescriptions are only the minimal threshold for the legal validity of legislative and executive action. People have every right to protest a law even if the same is held to be constitutional.

The popular legitimacy of a law is not exclusively dependent on its constitutionality and there is absolutely nothing in our legal framework which mandates a duty on the people to anchor their protest solely on the issue of constitutionality.

Thirdly, our constitutional framework allows us to protest against judicial decisions. In fact, popular protests against judicial decisions have often been the trigger for constitutional and legal changes to neutralise or mitigate the effects of a judicial decision. When the Supreme Court diluted the enforcement of the Scheduled Castes and Scheduled Tribes (Preventions of Atrocities) Act 1989 through its judgement in 2018, widespread protests prompted the government to amend the statute in order to neutralise the judgement.

Fundamentally undemocratic

The initiation of legal proceedings does not foreclose other democratic modalities of settling disputed issues within a polity. In fact, exploring judicial remedies is but a part of the range of democratic options available to the people in pursuing their objectives. In such a scenario, it is ludicrous for the judges to even suggest that people might lose their right to protest once they have approached the courts for a judicial remedy.

The implications of the judges’ line of thought is fundamentally undemocratic. Imagine for an instance if they hold that there is no right to protest once a constitutional challenge has been initiated in the courts. The consequential conclusion would be that if protesting is not allowed when a matter is pending before the court, it cannot also be allowed against the decision of a court.

The constitutional framework requires the judiciary to resist the government’s efforts to violate the fundamental rights. It is not expected of the Supreme Court to make such efforts unnecessary.

Rangin Pallav Tripathy teaches at National Law University Odisha and has completed a Fulbright Post-Doctoral Scholarship from Harvard Law School.