On December 1 and 2, 1948, the Constituent Assembly debated the report of the Fundamental Rights Committee. K M Munshi made a profound statement: “As a matter of fact, the essence of democracy is criticism of the government.”
The Constitution of India confers upon all citizens fundamental rights, including the right to freedom of speech and expression, to assemble peaceably and without arms, and to move freely throughout the territory of India. True, these rights are subject to any law imposing “reasonable restrictions”, inter-alia in the interest of the sovereignty and integrity of India, security of state, public order or incitement to offence.
Article 21 protects the life and personal liberty of all citizens. The Supreme Court interpreted “personal liberty” as a compendious term to include all varieties of rights which go to make up “personal liberties” of men, holding that, “the words, ‘personal liberty’ must be interpreted in a reasonable manner and to be attributed that sense which would promote and achieve objectives of the framers.”
The Constitution bench of the Supreme Court in Himmat Lal K Shah (1973) affirmatively declared, “…the state cannot by law abridge or take away the right of assembly by prohibiting assembly on public street or public place. The state can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order” but “state cannot impose unreasonable restrictions. It must be kept in mind that Article 19(1)(b), read with Article 13, protects citizens against state action.”
Justice Mathew, in a powerful concurring opinion, said, “Freedom of assembly is an essential element of any democratic system. At the root of this concept lies the citizens’ right to meet face to face with others for the discussion of their ideas and problems — religious, political, economic or social.” He held, “Public meeting in open spaces and public streets forms part of the tradition of our national life.” He declared: “The conferment of a fundamental right of public assembly would have been an exercise in futility if the government and local authorities could legally close all places where alone only vast majority of people could exercise the right” and that “there is a fundamental right to hold [a] public meeting in public streets” and that right cannot be taken away under an unguided discretion.
This is the law. Under Article 141, all authorities, civil and judicial, are expected to act in aid of the Supreme Court — that is to say, they are bound to follow this law.
Yet, the approach of the central and state governments in dealing with the farmers’ agitation is wholly contrary to this declaration. Not only are they flouting the Constitution but they are also disobeying the Supreme Court by not allowing farmers to assemble peaceably, to move freely and to speak freely. Fundamental rights are a gift of the framers of the Constitution to citizens and no one, including the Parliament and judiciary, much less the executive, has the right to limit them or take them away. The advisory committee on fundamental rights was chaired by none other than Sardar Vallabhbhai Patel, who said in his letter on April 24, 1947, to the president of the Constituent Assembly, “We attach great importance in making these rights justiciable…” and thus was born Article 32, the right to move the Supreme Court for enforcement of fundamental rights.
On April 24, 1947, he said, “But the two schools of thought that considered this report studied not the fundamental rights of one country alone but of almost every country in the World. They studied all the Constitutions of the world and they came to the conclusion that in this report we should include as far as possible rights which may be considered to be reasonable.”
K T Shah, speaking in the Constituent Assembly, had warned us, “The liberty of the person ever since the consciousness of civil liberties has come upon the people, has been the main battleground of autocrats and those fighting against them… It was, therefore, that any time the slightest difference of opinion was expressed, the slightest inconvenience or embarrassment was likely to be caused by any individual, the only course open to those who wanted to exercise autocratic power was to imprison or arrest or detain such a person without charge or trial.”
Farmer leaders, who have spearheaded a peaceful satyagraha for over 60 days, are now sought to be implicated in criminal cases without any reason. Surprisingly, Delhi Police refused to take any action against political leaders of the ruling party who had made extremely provocative statements in February 2020, which actually resulted in hatred, violence and loss of lives. The violence that erupted on January 26 was shameful. Those “responsible” must be dealt with but those who had nothing to do with it must be spared. The police cannot absolve itself of its failures in protecting the Red Fort. The nation will never know how a large number of people could reach the Red Fort, enter and defile it without any effective preventive steps by the police. A section of people, masquerading as farmers, could indulge in violence resulting in the death of a young farmer and injuries to scores.
The protesting farmers and their leaders wanted a peaceful rally in tune with their peaceful and organised protest. An attempt was made by certain people to scuttle them from their path. One can only hope that the police and, especially the judiciary, the subordinate judiciary, will see through this game to catch the culprits and not the innocents.
Farmers are deeply apprehensive of their future and so, are exercising their right to protest. Barricades and spikes, with a reinforced police force, will not dampen this spirit, it will only strengthen it. Sadly, attempts to demonise the protest by equating some of them with an anti-India movement can hurt the sentiments of the Sikh community. On August 9, 1946, Sardar Ujjal Singh had said in the Constituent Assembly, “The Sikhs have a burning passion for freedom. No single community in the history of India has struggled so long and so hard as the Sikhs have done to drive away foreign hordes from this land.”
B R Ambedkar, fearing the future, had said, “Our difficulty is how to make the heterogeneous mass that we have today take a decision in common and march on the way which leads us to Unity.”
It is important at this stage of our democracy to remember the speech of Edmund Burke on conciliation with America. He said, “First, sir, permit me to observe that the use of force alone is but temporary. It may subdue for a moment, but it does not remove the necessity of subduing again; and a nation is not governed which is perpetually to be conquered…”.
Let us hope that the sovereign powers are exercised with wisdom because, according to Dr Ambedkar, “there is no other way that can lead us to Unity”.
This article first appeared in the print edition on February 4, 2021 under the title ‘The farmer’s right to protest’. The writer is a senior advocate at the Supreme Court of India and former president of the Supreme Court Bar Association
The Constitution bench of the Supreme Court in 'Himmat Lal K Shah' (1973) affirmatively declared, ‘…the state cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place.’ (Illustration by C R Sasikumar) 
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