Propriety a weak ground to curb rights

An issue of significance to Indian democracy cropped up with the Supreme Court asking whether the continuance of protests by the farmers was proper while the court was scrutinising the validity of the farm laws and had stayed their operation. The issue of propriety has been commented upon both by supporters and opponents of the farmers’ movement. Some have remarked that the court has always discouraged such protests and referred to the lawyers’ strike in Delhi during Kiran Bedi’s tenure as the Police Commissioner. While a farmers’ protest and a lawyers’ strike paralysing the court functioning are quite different as the former does not paralyse the judicial proceedings, yet a deeper look at the constitutional position is required. The observation, however, assumes that both pre-institution of the case and post- decision of the case, peaceful protests could happen.
Peaceful protests are certainly an expression of dissent against the targeted act, be it a law or executive action. It can be accompanied by mass action. Article 19 of the Constitution guarantees free speech and expression, peaceful assemblage, formation of association and union, and free movement. But these rights extend to all citizens. While large protests would inevitably cause some inconvenience to the others and can be tolerated, the rights of others cannot be allowed to be shut out for long. But here, the question is: Should protests stop the moment litigation relating to the issue is instituted in a constitutional court? This would be a startling result.
The continuation of a protest during litigation needs to be seen from the angle of scope of judicial review. Does it overlap? If yes, it may be stopped. Another question to be put is: Who started the litigation? If protesters have, then maybe? The judicial review by constitutional courts is restricted in many ways. First, as per Supreme Court judgments, the laws carry a presumption of validity and the challenger has to establish its invalidity. Secondly, the State is given a larger discretion in economic matters. Thirdly, the courts do not enter into the domain of wisdom of an economic policy choice made by the State. On the other hand, the protest primarily questions the wisdom of an economic policy choice. Farmers apprehend that the laws, if allowed to operate, would hurt them seriously. Hence, there is no clash between the exercise of judicial review and the exercise of protest. Their spheres of action are different, though the laws in issue may be the same.
That apart, litigation is often started by spirited persons who may not be representing the protesters at all or may be representing merely a tiny section of them. Those opposing the protesters may have managed some litigation. The protesters would be justified in saying that they have not gone to court. It would be unjustified to block protests in such cases. And it is easy to determine whether those protesting are the ones who have instituted the case. In the farmers’ case, the protesters are demanding the withdrawal of the farm laws, even though the Supreme Court has already stayed them. Clearly, the protest is against the State and it carries no tilt against the court.
Let us see how the protest impacts judicial proceedings. We know that the judicial process is slow-moving and prolonged. Moreover, the judges would examine the laws from the perspective of constitutionality, while the protesting farmers are primarily against the wisdom of the policy incorporated in the law. They are not concerned so much with the legality. So, there is no way the judges would be influenced by the continuing protests of farmers. The judges are not new to protests. Our democracy has been witness to many mass protests. There is a legacy of peaceful mass protests and Satyagraha. The judges don’t live in ivory towers. They are trained to carry on with the adjudication unaffected by what happens on the roads or protest spots. They notice, but remain unaffected. Thus, the adjudication and protest have different spheres to operate and there is no question of any prejudice arising.
The continuance of protests during the adjudication in any case does not denote any disrespect or distrust towards the judiciary. As long as a protest does not obstruct the functioning of the courts, there is no clash and there should be no objection to the continuance of a protest. Rather, its continuance signifies that the protesters trust the judiciary to examine the constitutionality, but they do not wish to lose momentum against the State. Their target is the government of the day and not the court.
Is it propriety then which could require the farm protesters to stop their protests on account of court proceedings on the same issue? Propriety, as it is, would be a weak ground to prevent the exercise of fundamental democratic rights, which are a basic feature of the Constitution. True judicial review is also a basic feature of the Constitution. But are they clashing? They are not. The protests are not obstructing the court procedure in any manner. Fundamental rights ought not to be restricted on grounds of propriety. They are too precious. The protesters must, however, abjure violence.
BY Rakesh Dwivedi (Senior Advocate, Supreme Court)
The Article was published in on October 11, 2021.