October 15, 2020
Shaheen Bagh has emerged as a talking point again
after seix months of its culmination early this year. The
Supreme Court of India while upholding the right to protest and the importance of dissent in
a demoracy also held that “protests like these [Shaheen Bagh] are not
acceptable”. The Court held that protests cannot disturb public movement and
occupy public places indefinitely. The decision delves into the aspects of
where and how to protests. However, another equally important aspect is who
should protest. The protests at ShaheenBagh witnessed participation of children
and also saw the horrific death of an infant caused by the cold temperature at
ShaheenBagh at night. The participation of children and infants in ShaheenBagh
raises question on the relevance of their presence. By participation, the
author does not mean being merely present, but rather active participation in
the activities conducted by adult protestors. This is an area which has been
overlooked and thus this article analyses the aspects related to protests by
children and the relevance of consent and informed expression of dissent with
reference to the ShaheenBagh protests.
ShaheenBagh- A Saga
ShaheenBagh, the epicentre of the Anti-CAA protests
and an unknown place to many, became a household name across the nation.
Shaheen Bagh witnessed protests by the common citizens and popular artists such
as PrateekKuhad and SubhaMudgal. Shaheen Bagh streets were covered art and literature
expressing their disapproval of the CAA-NRC. New Agencies called the display of
art as ‘The Art of Resistance’ and ‘The New Wave of Protests’. Shaheen Bagh
protests were also commended by many activists for being led by women, and
mothers along with their children. Activists read out the Constitution of India, recited poems and read out stories to the children. In other words,
evenings in Shaheen Bagh seemed more like an art-literature fest than a protest
site.
Expression- informed and free?
The Indian Constitution recognizes the right to
freedom of speech and expression and right to form an association of all
citizens of India under Article 19 of the Constitution. Similarly, Article 13
of the Convention on the Rights of the Child(CRC) recognizes the right of children to express
their views through the media. The UNICEFhas also promoted the participation of children in
political decisions. However, a perusal of the CRC and UNICEF report reveals
that the expression of dissent through protests is based on an informed
decision of the child.
The Indian Penal Code 1860 (IPC) under section 82 states
that no act or omission of a child below the age of seven is considered a crime
for lack of capacity to know the consequences of their actions. Further, as per
Section 83 of IPC states that the children between seven and twelve who have
not attained sufficient maturity or are incapable of realizing the consequences
of their actions are exempted from any criminal liability. A similar rationale applied
even in the provision relating to kidnapping.
The ability of the child to distinguish the right from
wrong becomes crucial in the exercise of the right to expression. A valid
argument can be made when children are participating in the protests out of
their own will and informed decision, after perusing both sides of the issue.
However, when a child is being exposed to only one side of the issue, the
participation of the child in the protest, even if out his/her own choice, is
not adequately informed. Further, undue influence of parents on their children
is a common phenomenon in Indian families; making it possible that at least
some children are participating in the protests due to undue influence. A mere
reading of the Indian Contract Act’s section 16(2)(a) provides that when the
consent is obtained by a person holding real or apparent authority or having a fiduciary
relationship, the consent is not free consent.
The Supreme Court took cognizance of the matter of children participating in Shaheen
Bagh protests after an infant died due to cold weather. At Shaheen Bagh children below twelve
years of age were seen holding posters calling various political leaders
‘unfaithful’ and crying out ‘Inqilab zindabad’. A boy chanting revolutionary slogans against the CAA, NRC, and NPR is also available
online. Children were seen painting posters and pictures; however, though
patriotic were often anti-CAA.
This article is not addressing the issue of whether
the protests were legal or if people should protest against CAA-NRC. The
article is also not a comment on whether the actions, slogans, poems, or
paintings were seditious. The article focuses on the importance of informed
decision making and free consent of the children participating in the protest.
At Shaheen Bagh, the children, many of whom were below seven years old, were seen chanting slogans against CAA and naturally the question arises-
“How many of them know what CAA-NRC is?”. If they do not, then, are they being
used as a ‘tool’ for public solidarity? And an argument that children of ages
between four to twelve understand the nuances of the law to have an informed
opinion is a far-fetched claim.
How are children of Shaheen Bagh different from Malala
and Greta?
The participation of children in Shaheen Bagh is
unlike the climate change protesters Greta Thunberg and her friends. Greta skipped school voluntarily and protested without the interference of
her parents. Her parents not only did not take her to protest but also tried to
dissuade her. Thus, the question arises- “Would the children have
protested if their parents had not?”. If the answer is ‘no’. Then there is a
possibility of lack of free consent and lack of informed decision making. Greta
Thunberg and Malala Yusufzai protested irrespective of the opinion and views of
their parents. Parents may be facilitators of the expression of the
child, however, when the child (without free consent and informed choice)
becomes the facilitator to the political goal of the parents, then the
participation of the child becomes questionable both legally and morally.
Even the Supreme Court of India in S. Khushboo v. Kanniammal&Anr[i]stated that informed citizenry is a precondition to
meaningful governance. Thus, the author argues that the right of expression also
entails a duty to make informed expressions. A cut and dry rule to determine
what constitutes an ‘informed expression’ is difficult. However, when the
expression is induced by influence or without consent, it is clearly an
instance of uninformed expression.
Conclusion
In a democracy where freedom of speech and expression
is a guaranteed right, it becomes pertinent that the expression is informed for
meaningful democracy. The Shaheen Bagh protests were projected as an epitome of
expression of dissent and freedom of speech. However, the presence of children
in the protests became a concern after a child died due to cold weather.
Children were seen to be protesting against the CAA-NRC by raising
revolutionary slogans, painting pictures, among other activities. Such a
scenario raises the question of how informed is the expression of the children.
Is the participation of children in the protests a result of their free consent
and informed decision? Or if the children are being used as a tool for public
solidarity?As a means to an end.
An observation of credible news reports shows that
children are not well-informed about the law and its nuances. And a conclusion
can be drawn that the children are there because of their parents. There are
arguments that mothers have taken their children to the protests because they do not have babysitting
arrangements.
However, children were seen chanting slogans and protesting against the law,
thus not merely being present with their mothers but also engaging in the
protests. Children were not being just read out the constitution or taught
painting but also paintings criticizing the law. The author challenges not the
content per se but asks the question whether the children painting anti-CAA
know what they are painting? Or children chanting inqilab zindabad know the
meaning of the phrase? Unfortunately, the answer is in the negative. Nine or
ten-year-old children calling political leaders ‘bewafa’ (unfaithful) might not
even know to write ‘bewafa’.
The author intends this article to be the beginning of
a conversation on the relevance of informed expression, and participation of
children in protests. Children are the future of any nation and must be
extended the opportunity to make informed choices. Their decisions, especially,
significant ones such as whether to protest a law must be independent and
informed. Only when the citizens vis a vis electorate are informed the
democracy is meaningful.
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