Received: 04.05.2021 Revision: 05.05.2021 Accepted: 07.05.2021 Published: 10.05.2021
Sarvesh Kumar Shahi
Assistant Professor Institution - School of Law KIIT University, Bhubaneshwar, India
Abstract: The right to disagree, the right to dissent and the right to take another point of view are inherent rights of each and every citizen of the country. Public protests are the hallmark of a free, democratic society, whose logic demands that the voice of the people should be heard by those in power and decisions be reached after proper discussion and consultation. But recently (2015-2021), we have seen worries among the people who fight for their cause peacefully and protest against arbitrary actions of person in authority. This paper discusses about the constitutional guarantee of “right to dissent” with the help of judicial interpretation of various provisions. Also, it mentions the basic theories highlighting the democratic structure of India and where it stands in current scenario. The researcher, in this paper adopts the comparative method of research which helps him in reviewing and comparing the status of right to dissent in India with various other developing countries and their judicial take on it. Finally, the paper suggests methods of protecting this democratic right to dissent mentioning the limitations of governmental powers to curtail it.
“Disaffection is such a broad term that anything could amount to sedition. Our democracy gives us the right to freedom of speech and expression. Right to dissent is a hallmark of democracy. Even if one party comes into power, it is not immune to criticism and right to dissent allows such criticism,”
Deepa Gupta, Former Judge, Supreme Court of India
Dissent initiates discussion and intensifies the scope of evolution and growth in a democracy. Dissent is dynamic in nature and becomes an eminent part of democracy. The fundamental grounds to strengthen the robust and vibrant democracy depends on fundamental aspects like dissent, discussion and scrutiny. The government can penalize the critical statements made against them either directly by imposing criminal sanctions which justify the government's actions or indirectly suppressing them by using agents provocateurs and police spies in a less formal manner.
The difference in opinion or point of view has become an issue to such an extent that the bonafide speeches and arguments are seen as a threat to security.
In September 2020, Amnesty International, a non-governmental international organisation suspended its operations in India because of the destructive attacks, bullying, and harassment made systematically by the government. A survey was conducted on India in the year 2020 by Human Rights Watch. The report described a raft of “politically motivated cases against human rights defenders, student activists, academics, opposition leaders, and critics.” Even Journalists were arrested, threatened, and beaten by mobs or by the police for reporting on the government’s handling of Covid-19. Freedom House, an NGO which is formed for the sole purpose of promoting democracy has recently downgraded India in their rankings from “free” to “partly free,” citing a “multiyear pattern in which the Hindu nationalist government and its allies have presided over rising violence and discriminatory policies” against the Muslim minorities in the country while also pursuing “a crackdown on expressions of dissent by the media, academics, civil society groups and protestors.”
Recently, several incidents happened in the country like farmer’s protest against the government on Sindhu and Tikri borders blocking roads; protest against BJP led government in Goa against cutting of forest trees in Mollem National Park to construct national highways and railway tracks without any study on the impact of the projects on the forests; the very popular anti-CAA protest and many more. These incidents are imbibing the researcher to inquire and scrutinize the status of various freedoms of liberty enshrined in the constitution and the constitutional responsibilities of the state to protect the democratic structure of the country and the obligation to prevent the rights guaranteed to the citizens of India. Also, the role of the judiciary in creating a middle path which would lead to the justice to bonafide protesters and placing limitations on arbitrary use of powers by the government and encourages it to utilize it in the favour of “WE THE PEOPLE OF INDIA”.
RECENT INCIDENTS ACROSS THE GLOBE
United Kingdom - The UK has witnessed a repeated number of protest and demonstration in the country for over a month. These nationwide protests are against the new bill discussed in the parliament known as Police, Crime, Sentencing and Courts Bill 2021. This new bill enhances and gives a wide range of power to the police officers as well as the home office for restricting the protestors and prosecuting the individuals who have been involved in other common law offences like Public Nuisance. Within this time a crime had taken place days before the London vigil, the victim namely, Sarah Everard was a young woman in her early 30’s who was murdered. It is suspected that a senior metropolitan police officer is related to this murder. Earlier the same officer was reported for indecent exposure due to which a feminist group known as the Sister Uncut organized demonstrations against the cuts in the domestic violence services. The situation was handled very abruptly by the police which led to mistrust among the protestors and intensified the scrutiny of the police officers actions. All these incidents have widened the protest of the Killing the Bill movement but still, the New Bill has passed the first and second readings in the house of commons and now it is being examined after which the bill will be taken before the house of the lords.
The Republic of Congo - The people of congo has suffered brutal consequences due to the economic crisis in the country. The alleged mismanagement by the health sector has grossly undermined the right to health of the citizens as well as the health sector has failed to implement free care programs. The people of congo are deprived of life-saving treatment as it is the costliest affair for the citizens of congo. The economic crisis has deprived many citizens of pensions, salaries and scholarship and also it has driven tens and thousand of citizens towards poverty.
The authorities have deviated from their pledges that they made 6 years ago to improve the health system of the country as well as respecting the economical and social rights of the citizens. but still, no steps were taken to fulfil those promises instead they have made the health system even worst. They have taken a step forward to pin down the journalist, human right activist, trade unions and student by targeted litigations, threats and ill-treatment for their voices for an improved health system in the country.
Russia - Since his re-election in 2018, Putin pushed ahead despite the coronavirus pandemic with a constitutional referendum last year that reset presidential term limits, allowing him to serve two more terms in office. In 2011-12 a widespread protest emerged against Putin and many protestors were jailed including Navalny, an anti-corruption campaigner who was known for his protest in 2011-12 was in Germany for months to get treated from poisoning. He blamed Kremlin for poisoning him. Later, he was jailed this year after his return from Germany.
Florida - The State Republican has passed the “anti riots” bill in Florida which enhances the punishment that will be inflicted on the violent protestors for committing a crime. This bill gives power to the government authorities to hold the protestor under their custody until their first appearance before the court. The bill seeks to add different felonies for unruly protestors. However, the bill is strongly opposed by the civil rights group stating that it will be advantageous to the governor and hamper the freedom to oppose or dissent.
The activist is trying hard to put down the efforts of the lawmakers through urges and requests.
India - According to a Times of India Report, The Supreme Court of India has received a case in regards to the 'Eight Overseas Citizens of India (OCIs) which corners to violation of their Freedom of Speech and Expression as their views. Alongside this, they are unable to register themselves with the dissent against the Indian Government Official. The report continues by referring to The Citizenship Act under which Section 7 of the act mentions clears in regards to the Union Government to cancel the registration of Overseas Citizens of India (OCIs) as well as prohibit them from residing with the territory of India in regards to the same they have stated that these people have been under the violation of any other Indian Law or the Constitution of India itself.
Section 7 (b) of the Citizenship Act states that "the act allows the government to cancel a person’s OCI registration if they show disaffection to the Constitution of India and section 7D(da) allows cancellation of OCI registration for violation of any law. Both these provisions under section 7D are arbitrary and have a chilling effect on the freedom of expression of OCIs, several of whom, despite being permanently resident in India, cannot express peaceful dissent against the state for fear that such dissent will amount to either disaffection to the Constitution of India or the violation of any law so prescribed”.
To bring the OCI and NRIs into parity just by limiting the number of professions OCIs are working and practising currently and other non-enumerated professions would be hindered for useful participation and contribution to their professions in India. The OCIs are living in the country and are regular taxpayers but they are unable to criticise share their opinions to the local government authorities on the issues related to civic infrastructures because they are sacred if they raise any issue or grievance then their citizenship might get cancelled.
There are several other incidents like shaheen bagh protest against CAA, farmers protest against the farmer’s bill and many more which is attracting the eye-opening debate over the right to dissent, its limitations and arbitrary use of power by the government to suppress it.
RIGHT TO DISSENT AS A HUMAN RIGHT
Every individual is conferred with basic human rights, the right to live with basic human dignity, the right to express one view and to criticise and so on. The freedom to express one’s own opinion, forming a peaceful assembly and associations to protect your views, opinions and thoughts is one of the rights that every individual and a collective group, as well as a society, possess. The freedom to express and criticise or dissent on the working of the government comes under these rights. Individuals and society can make such demands to comply with the social well beings in the matter of rights such as, human rights, cultural rights, environmental rights and to help those people who have been discriminated historically since the dawn of time. The protest has a quintessential role in protecting the rights of the citizens as well as the development of democracy. According to the instruments of the inter-American system, the joint exercise of these fundamental rights makes the free exercise of democracy possible.
When an individual or a group of people tends to deals in regards to a pubic affair, there would be activities that would take place in accordance with the collective rights of expression, association alongside with the assembly and the participation to be able to create a point of view as well as a dissent. Through this method, there would be a level of freedom which is provided from the dissent in regards to help the individuals to be able to rightfully exercise their right to gain knowledge first and then later on transfer their knowledge through carrying out various debates alongside with influencing the people around them with regards to decision making on issues with are associated to the right to develop as well as create a forum to discuss the newer human rights ideas and the principles leading towards creating an acceptance of them through advocating the idea. Article 7 of the Declaration on Human Rights Defenders, 1998 explicitly recognises that everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance.
Article 19 of UDHR, 1948 states that everyone has the right to freedom of opinion and expression”; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 20 states that everyone has the right to freedom of peaceful assembly and association.
Several treaties are recognizing the right to dissent as a human right. They are as follows: -
International Covenant on Civil and Political Rights
American Declaration on the Rights and Duties of Man
American Convention on Human Rights
European Convention on Human Rights
African (Banjul) Charter on Human and Peoples’ Rights.
These treaties have been interpreted by:
Inter-American Court of Human Rights
Inter-American Commission on Human Rights
European Court of Human Rights
African Human Rights Commission
African Court on Human and Peoples’ Rights
UN Human Rights Committee
The state has to respect the rights of the citizens to dissent and protest against the government policies. The state is legally obligated to protect and fulfil the rights of the person to express their opinions and criticism. However, these rights are grossly misunderstood and violated frequently due to which the dissenters had to face a lot of hardships which may include arrest, imprisonment, displacement, disappearance, and death.
RIGHT TO DISSENT AS A FUNDAMENTAL RIGHT
Dissent is something that gets its essence from democracy and due to this, it is being acknowledged under the Parliamentary form of democracy. The Constitution of India has stated the rights of the individual in its forefront as its major focus through guaranteeing both civil and political rights to the citizen under the Fundamental Right which is enshrined under Part III of the Constitution along with embodying the aspiration of creating socioeconomic right in the Directive Principles of State Policy which have been stated under Part IV of the Constitution. One aspect which is in regards to the people who are below the poverty line, who tend to suffer from grieve violation of their rights which are exploited by the other sectors of the society leading towards egregious violation of human right which has been occurring for over centuries. One of the major aspects here has been the right to question itself, the right to scrutinize as well as the right to dissent which leads towards enabling the en-formed citizen to be able to create scrutiny in the various actions which the government. This is a very important aspect that needs to be exercised by the citizens to be able to enable the democratic nature of the policymakers to form an informed decision in regards to the basic issues which govern the citizen's rights.
In V.A. Pugalenthi v. State, Crl. O.P. No. 21463 of 2017, the issue had been in regards to the prosecution which had been along with the petitioner and others had gone out and distributed pamphlets which had contained statements that were seditious and defamatory in nature. In this particular case, the Madras High Court had held that in calling out the public towards the demonstrate and agitate is to be taken as against the Central and State Governments with regards to the specific issue of the NEET Examination which would be then prima facie in regard to constitute the number of offences performed under sedition and defamation laws. The Court continued and stated that the cautioned towards the government to not go ahead with any action against any of the peaceful protests or criticisms or dissent which had been observed through every citizen of the country as they had been practising their fundamental right to register her or his protest peacefully and to demonstrate without not causing any kind of disturbing situation which could have resulted into any form of violence which could have paralyzed the law and order situation in the state itself.
The case of Dr Binayak Sen v. State of Chhattisgarh, 2011 (266) ELT 193 (Chhattisgarh) and Sanskar Marathe v. State of Maharashtra, 2015 Cri LJ 356, mentions it had been observed that there had been a mention of instances which were clearing showing the government official had used their provision and power for curbing criticism and dissent which made been made towards them. In 2019, the Supreme Court case of Amit Sahani v Commissioner of Police and Others, Civil Appeal No 3282 of 2020, dated 7 October 2020, had dealt with the protectors who were against the Citizenship Act where the Supreme Court of India had held that the protesters of Shaheen Bagh had their “public ways and public spaces cannot be occupied in such a manner and that too indefinitely.” Justice Sanjay Kishan Kaul, Justice Aniruddha Bose and Justice Krishna Murari added to this by stating the acknowledgement of the right to dissent with their statement of “demonstrations expressing dissent have to be in designated places alone.”
The recent judgment of the Supreme Court on the Shaheen Bagh protest, headed by Justice Sanjay Kishan Kaul, Justice Aniruddha Bose and Justice Krishna Murari, held that “public ways and public spaces cannot be occupied in such a manner and that too indefinitely.” While acknowledging the right to dissent, the Court stated that “demonstrations expressing dissent have to be in designated places alone.”
Overall it is quite evident by now that there has been a much casual approach being practised among the executive and judicial machinery system. Due to this, it creates a very problematic effect upon the Right to Dissent or even criticizes the Government overall. Since 2014, the time when history had been created in India with the Bhartiya Janta Party coming in power with a major and the anointment of Shri Narendra Modi as the Prime Minister of the world’s biggest democracy, which got re-elected again in the 2019 General Elections with an even stronger majority, had lead towards the massive controlling in areas such as the mass media to be able to form a ‘Hindu Nationalist Government’ rule in India which contradicts the democratic and the secular nature of the nation itself.
In 2020, the World Press Index had published its latest World Press Freedom Index (2020), which had been positioned at 142 among 180 countries that classified blunts as poor and bad freedom for journalism in the country. In a country where words like ‘anti-state, ‘anti-national’ and ‘pro-terrorist by supporting the ruling party’ are the words which a journalist just cannot use as it would be projected that they are the people behind the words and shall be taken under the Sedition laws of the country immediately.
Thus, when talking about the free flow of information and self-expression which are just pure form of oxygen and sunlight for any representative democracy it is the functions which are best done with policies annealed when they are in the boiling cauldron of public debate.
As a democratic nation, we as its citizens must remember that the right to dissent is surely fundamental to existence under a democratic society setup. This is the right that is first in every nation which moves towards totalitarianism.
In the end finally, one can say that it is extremely sad and disappointing to see that a country like India is not being run in accordance with the Constitution of India itself and rather is following the ideology of one majority ruling political party. Whenever and whosoever has tried to raise their voice has been hounded. This needs to end sooner through proper corrective measures of government as well as some stricter directives practised by the judiciary to be able to create an advancement that would protect the interest of the justice system.
Amnesty International Report. (2020/21). The State Of The World’s Human Rights. Peter Benenson House Press London.
Armus, T. (2021). Florida GOP says a new law will stop riots. Critics say it’s an ‘outrageous’ ploy to end protests. The Washington Post, April 20, 2021.
Dominika Bychawska-Siniarska. (2017). Protecting the Right to Freedom of Expression under The European Convention on Human Rights. A Handbook for Legal Practitioners. Council of Europe.
Ebony Riddell-Bamber (2020). Russia’s Strident Stifling of Free Speech (2012-2018). PEN International London.
Lanza, E. (2019). Protest and Human Rights. Inter-American Commission on Human Rights. Office of the Special Rapporteur for Freedom of Expression US.
Mahapatra, D. (2021). Ask govt to stop treating us as 2nd-class citizens: OCIs to SC. Times of India, Apr 13, 2021.
Melissa Schwartzberg. (2020). Protest and Dissent. New York University Press New York.
O’Flaherty, M. (2012). Freedom of Expression: Article19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No 34. Human Rights Law Review, 12 (4), 627- 654.
Thousands protest against policing bill in Britain, with clashes in London. International New York Times, London, APR 04 2021, 05:48 IST.
Towah, W.D. (2019). The Impact of Good Governance and Stability on Sustainable Development in Ghana. Walten University Minneapolis.