DOES PROTEST IS PREFERABLE IN SUB-JUDICE MATTERS?

AUTHOR- SHALINI KAUSHAL*

CO-AUTHOR- ADITI CHAUHAN

INTRODUCTION

According to Karl Marx- The socio-political history of human existence has been of struggles, confrontations, protests, and dissents[1], ergo, questioning the matters which are ethically inappropriate to the society.

A protest is one of the ways to express disapproval or disagreement to any action, it can be a statement or policy of a government or any organization that wants to accuse a group of people against themselves. And in protest, there are so many people gather with the same objection and aim therefore it also provides inspiration and a sense of being part of a large movement. Consequently, a formal declaration whereby a person expresses a personal objection or disapproval of an act[2].

The motive for a protest can vary from criticizing a group/party/government or a poorly designed policy. Protest also represent the voice of an unprivileged citizens or discriminated, asserting one’s sense of unique identity. It is more often the gateway to asset and coherent to demand the political and civil rights for the community. Moreover, it has universal application and around the world against different disagreement happening between the preceding government and its citizens.

RIGHT TO PROTEST- FUNDAMENTAL RIGHT

The Right to protest is an ambiguous right under the Part III of the Indian constitution. It has emerged from the Right to Freedom of Speech and Expression which is under Article 19.

• Article 19(1)(a): The Right to Free Speech and Expression transforms into the right to freely express an opinion on the conduct of the government.

• Article 19(1)(b): The Right to association is required to form associations for political purpose.

• Article 19(1)(c): The Right to peaceably assemble allows to people to question and object to acts of the government by demonstrations, agitations and public meeting, to launch sustained protest movements[3].

Substantially, the Right to Protest ensures that people can act as a watchdog and constantly monitor the government’s action.

In Re- Ramlila Maidan Incident Vs Home Secretary & Ors., Supreme Court held that no person could be divested of their fundamental rights; there right cannot be taken away or abridged. All that the State can assure, by the exercise of its legislative power and to regulate these rights by the imposition of reasonable restrictions on them. The Court culled out the following test to regulate the rights:

• A restriction can be imposed only by or under the authority of law. It cannot be imposed by the exercise of executive power without any law to back it up.

• Each restriction must be reasonable.

• A restriction must be related to the purpose mentioned in Article 19(2)[4]

The restriction must be reasonable. Set asides, no law divests a petitioner of their right to protest just because they have already invoked a legal remedy against a Parliamentary law.

The catena of incidence happens for farm bills where the several protests were done by the preceding farmers such as Rail rook and Dili Chalo, Blocking of borders and roads, counter-protests, etc. which hampers the day to day activities of the citizens and resultant the legal authority set down the stay order for the implementing the farm laws. Subsequently, the protest intensified day by day by the farmers. Is it necessary when the matter is in Court a Protest is need to be organized by the citizens?

SUB-JUDICE MATTERS

In law, sub judice is derived from the Latin word ‘under a judge’’ which means that a particular case or matter is under trial or being considered by a judge or court. Sub judice matters are those matters which are on trial or the lawyers are presenting their cases in the court, the case retains such status till the final judgment is delivered.

Even, the sub judice rule restricts comments and disclosures about the judicial to prejudging the issue, influence the court, or obstruct the administration of justice. Infringing any of the rules of Sub judice may relinquish one liable for indirect contempt under Section 3(d) of the Rule of Court.

IS PROTEST ALLOWED IN SUB-JUDICE MATTERS?

A legal case which is under or before a judge or court for judicial consideration of an undetermined matter[5]. Sub-judice is being studied or decided in law court at present, and some details of it cannot be discussed in the newspaper, on television, etc. The Sub-judice regulates the publication of matters which are under consideration by the court of law.

Farmer’s agitation was conducted by the citizens, the legal remedy before the Constitutional Court ; Writ Petition was filed, consequently a question arises ,Whether the right to protest is an absolute right? Subsequently court affirmed by Justice AM Khanwilkar and stated to permitted the urge, much less assert, that they can still resort to protest in respect of the same subject which is already sub judice before the court.

Several enumerations were held on protests where constitutional validity has been challenged in the court for the Citizenship (Amendment) Act, 2019, Petitions challenging the legislature intent over the bill and its constitutional validity of the CAA before the Supreme Court. In fact, in the case of Amit Sahni v/s the Commissioner of Police & Ors[6]. the SC peddling with the Shaheen Bagh protests against the CAA and observed that there have been protests against the legislation in Delhi and in different parts of the country. Despite the law facing a constitutional challenge before the Court, will not abrogate their Legal Right to protest of the persons who feel aggrieved by the legislation.”

The ambit of any law is examined from a legal and constitutional approach, by a court of law. Legislation, laws of the executive have multiple perspectives beyond law and jurisprudence. While courts of law examine the fundamental and constitutional perspectives, they often abstain or cease the power to deal with other perspectives, such as the policy rationale or desirability of the law, which are equally important, if not more[7].

The purpose of any protests or any mass gathering merely not only focused upon legal issues but upon economic, social, cultural, and even moral issues involved. Such protest and issues comprehensibly deals with these matters and therefore as an ordinarily prudent man it should not set aside or be ignored, any protest if the matter is sub-judice.

Karnataka objection on Hijab protest by the student organization against the “communal targeting” of Muslim women students and the “attack on women’s autonomy” in schools and colleges of Karnataka since it’s the case is sub-judice under the jurisdiction of High Court still there are several incidences were administrating by the student around India against the Hijab controversy.

Observing many incidence in the past as well as present, the protest was organized when plea by the citizens was on trial or heard by the competent court, despite detrimental activities conducted by the citizens. Recently the farmers protest was conducted in which damages caused. The Supreme Court Bench said nobody takes the responsibility when there is damage to property and physical damage is caused also asked Attorney General KK Venugopal that once a member of the Protest has approached the court challenging the reasonableness of the Act, then where the question arise for going for protest when probing of unveils has been conducted by the competent authority.

Mahatma Gandhi once famously said, “Demands of equity supersede the letter of the law” [8] therefore protests and agitation persist as a central idea to our freedom struggle and are now meticulously a legal right enshrined in the Constitution of India. To curb it on the ground reality such as in the matter of sub judice matters, protests cannot be organized, would be an offence to the ethos of the freedom struggle, the vision of Gandhi, and the constitutional morality which citizens of India and three - fold of governance i.e. legislature, executive and the judiciary are duty bound to uphold.

CONCLUSION

Disagreement about legislative intent of the Parliament between the Indian citizen and the representative of the people can peacefully be resort by the help of the third organ of government i.e. Judiciary which works independently in the democratic government.

Solicitor General Tushar Mehta said when the matter is before the highest constitutional court i.e Supreme Court , nobody shall be on the road for the matter for the same issue. Even no one other than the preceding authority decides the validity of any act. Citizens should determine an alternative, either to opt the court or organized to protest ethically.

Protest under the preview of freedom of speech shall be performed with the reasonable restriction under Article 19(2) by the citizen. Expressing the views in a group for disapproving the laws or regulation should be performed peacefully until the judiciary intervene. Once the judiciary performs its function, the protest shall be suspended over the period till the judgement came.

REFERENCES:

1. Karl Marx and Frederick Engels, The Communist Manifesto 34-35 (Oxford University Press, USA, 1992); Karl Marx and Frederick Engles, The German Ideology 48-49 (Lawrence &Wishart, London, 1974)

2. https://legal-dictionary.thefreedictionary.com

3. Constitution of India, 1950

4. Re (2012) 5 SCC 1

5. Black’s Law Dictionary 1593(4th ed. 1968)

6. 2020 SCC, SC 808

7. https://www.newsclick.in/curbing-protests-sub-judice-ground-contrary-legislative-intent-constituent-assembly-constitution

8. https://www.mkgandhi.org/law_lawyers/appendix2.htm

*The Author is a 3rd year student of B.A.LLB at PSIT College of Law, Kanpur

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