September 16, 2021
“Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.”
~ Margaret Mead
Introduction
Protests are considered to be one of the most effective ways to intrigue
public attention. From the day of independence till the present day,
significant protests have dominated national as well as international headlines
with far-reaching multidimensional outcomes, wherein women protesters have led
from the front. A number of protests include the farmers’ protests against the
new farm laws and the Shaheen Bagh protests in wake of the controversial
Citizenship (Amendment) Act, 2019. These protests were largely led by women[1]
and the immense participation of women, regardless of their age, class or
religion was worth capturing. These set of
protests have put a spotlight on the important role of women marking it a
milestone in the struggle for equality, and leadership of nonviolent movements.
Objurgating the centre’s way of handling the
farmers’ protest, the Supreme Court’s three-judge bench on January 11 observed
that it will not pass any order regarding the citizens and their right to
protest[2].
This was encouraging. But ensuing remarks by the Chief Justice of India S.A.
Bobde has created a matter of concern. As an emphasis was added by him
regarding:
“Why are women and elders to be kept in
the protest?”
He also asked one of the senior advocates to sway
the women and elderly protesters and to ask them to go back from the protest
sites. These remarks from the Chief Justice of India irks the question- Can
there be a ‘custodian’ at a given protest site so as to decide who should be
‘kept’ there and who should not be? Such a stance questions the role of women
in a protest. These set of remarks gain much importance as they were made with
reference to a fundamental right, the right to protest, which is regarded as
the pillar of any vibrant democracy.
Right to Protest: The Domestic backdrop
Part III of the Indian Constitution provides for
the lists of rights which are fundamental in nature. However, the word “Protest”
has not been defined anywhere in the constitution. Apart from providing these
rights having a fundamental character, Article 19 also mentions certain
restrictions which authorities may impose on such rights. Article 19(1)(a)
guarantees the freedom of speech and expression, and Article 19(1)(b)
guarantees the citizens the right to assemble peacefully and without arms.
The freedom of speech under Article 19 is given to
the citizens to make sure their participation in public activities. They may
form an opinion and can have a word to say in public activities. This is the
reason why it is regarded as an important aspect for any democracy. A person
may express his views on any relevant issue or point of contention through any
medium which he wishes. These set of rights in other sense constitutes our
public as well as political freedom. The right to speech and expression transfigures
into the freedom to express opinion on the various practices of the government.
The right to speech and expression becomes the right to association for
political purposes so as to collectively challenge the government’s decisions
and to even aim, peacefully and legally the abuse of power. This is the
foundation of our democratic system where in the citizens of the country are a
valuable asset and they assist in creating a system that thrive for the
betterment of its people.After understanding the essence of rights, it can be
said that they not only represent the democratic values of India but also
signifies the importance in any democratic regime.
Overall, the citizens have Right to protest on one
hand whereas authorities are empowered to impose limitations on such protests
on the other hand. The thing is those limitations must be reasonable in nature[3].
The right to peaceful protest must be respected but the idea is ‘no right is
absolute’ i.e. one has a corresponding responsibility for the acts committed by
him.
Public Demonstrations and the Rule of Law
The right to freedom of expression and public
demonstration is one of the primary features of any democratic structure and
the undermining of freedom of expression unswervingly affects the central nerve
of the democratic system. The right to peaceful public demonstration is not
merely a civil right which is subject to reasonable restrictions but is an
appearance of uncertainty as due to various outcomes involved.
The term “public order” under Article 19(2) is a
legitimate ground of restriction and it can be sensible only when there are
certain evidences that the protesters had incited lawless or rebellious acts,
or these acts may result in their further happenings in the possible time.
Further, the freedom to assemble and public demonstration, bounds to impede the
ordinary rights- one of them being the right to freedom of movement and these
set of protests may cause a certain level of disarray to ordinary life and
encounter supplementary aggression. The protesters in case may block roads,
occupy public spaces, and cause disturbance or even can harm the public assets-
for this the authorities may find it necessary to prevent or regulate such
behaviour. The courts, as being part of the state, can’t be oblivious of their
duty to safeguard this right[4].
Further, the apex Court in the landmark judgement
of Maneka Gandhi v. Union Of India[5],
observed that, it is clear that every citizen must be entitled to participate
in the process of democracy, the government being of the people, for the people and by the people and enabling
him/her to intelligently exercise his right of creating a choice, free and
general dialogue of public matters is absolutely essential.
In Romesh Thappar v. The State Of Madras[6],
the Hon’ble Court observed that the security
of a State is a reasonable restriction under Article 19 (2) of the
Constitution. However, the words used in the impugned article are ‘public order
and safety’. The Court further held that the 2 terms have to be read together
so as to define the purpose for which restrictions were allowed for the wider
purpose of public order.
In particular, all the cases are judged on their
own virtue and facts, and over the years it has broadened the scope of freedom
of expression and public demonstration. There is no widespread or accurate or
conventional standard that can be considered but reasonable restrictions
mentioned in the constitution [Article 19(2) – Article 19(6)] can only monitor
the law.
Women’s Symbolization in Public protests
A typical stereotype with regards to the perception of protests is that-
As men are at the forefront of clashes with the law enforcement authorities the
patriarchal norms must traditionally exclude women. This assumption principally
becomes problematic when the cause for a particular protest is revolving around
the rights and lives of women, as was in the case of farmers’ protest. Another
thing is the designation of spaces for protests. As the public space is
occupied by men, women and members of the LGBTQ+ community as well, the court
must opine about the collective role of every member of the community with
regards to their dissent.
The problem with this view is that the Court seems to outlook the public
spaces as gender- neutral spaces, but the reality is that public spaces are
acutely gendered in nature[7].
Further, the phrase like “women are kept in the protests” underrates their
potential and contributions in the agricultural sector.
In order to understand the imperative role of women
in protests, one has to go through the gendered dimensions in details. For
this, the series of three Articles - 14, 15 and 16 have a key role in addressing
the Constitutional Right of a person. Article 14 of the Constitution of India
comprehends that- "The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India”.Further,
Article 15 endows the protection with respect to discrimination by the State on
the grounds of cast, race, religion, birth, etc. The first of two significant
phrases in Article 14 is "equality before the law", which means among
equals, the law must be equal and equally administered as well[8]. Talking
about the role of women in any protest-the
movement is not only made up of women, but also men who work and fight equally
to safeguard the public interest. There have been many women leaders who have played a key role in local or
world history but, the problem is that despite the socital progress in
terms of legal safeguard and equal rights, women still assume a lower-status in
a traditionally patriarchal society like ours. To get around the 'negative
concept' problem, the phrase "no person should be denied equality before
law" was added later[9].
This is a 'affirmative concept' which means no individual or person can be
excluded from securing the equal protection of the law and, for that reason,
special laws can be framed to help the disadvantaged groups and other members
of society.
According to Article 19(1)(a) of the Indian Constitution freedom of
speech and expression is regarded as a fundamental right given to its citizen
against the state, which includes carrying out the peaceful public
demonstration, so it can be aptly presumed that a protester’s right can only be
exercised within the bounds of citizenship. Thus, it becomes important to
examine the scope of citizenship through the lens of gender as well. When the
protesting women are asked to return from public spaces wherein their interests
and rights are at stake, their status as subordinate citizens is magnified. If
there is equality with regards to claiming of rights, then why would they be
singled out when it comes to women who are asked to return as if those sorts of
protests did not concern them as it did men?
This quote also questions the presence of women at protest sites where
issues concerning the common good or public interest are involved. In the case
of farm laws, the presence of women raises concern specifically due to the fact
that their interests are portrayed as gendered specific with regards to
occupying the public spaces and engaging with the State. But, the thing is
citizenship is not merely a passive concept but is also an active conception[10],
which goes beyond mere status and formal rights (of equality) and ought to be
viewed as a relationship that promotes agency and participation, which is why
women’s presence at protest sites ought to be welcomed and not questioned.
Conclusion
After one goes through the past happenings it can be said that the mobilization of poor women and those from marginalized communities are originally intended to address the outcomes of failed state-led development systems rather than directly dealing with gender injustices. However women’s participation in both these movements resulted in an increased awareness of gender injustices and the importance of female. Even when a women’s rights concern has been identified, women’s’ groups have demonstrated different strategies of political participation.
Although women are increasingly participating to challenge the existing understandings of gender roles, the path to gendered equality in India would be long and arduous. There is a need to create a strong and sustainable alliance among women’s rights group that could lead to future improvements for women’s rights in India.
(Mayank Shyamsukha is a 3rd year student of Institute of Law, Nirma University)
[1] M R Shamshad, Tale of two protests, The Indian Express,
(January 25, 2021, 8:38 PM), available at https://indianexpress.com/article/opinion/columns/farmers-protests-caa-citizenship-act-stir-7161330/
[2] Krishnadas Rajagopal, SC says it intends to stay farm laws, The Hindu (January 11,2021, 12:51 PM),
available at https://www.thehindu.com/news/national/sc-farmers-protest-farm-laws/article33548219.ece
[3] Mazdoor Kisan Shakti Sangathan v Union of India, (2018) 17 SCC 324
[4] V. Venkatesan Supreme Court’s Shaheen Bagh Judgment Will Lead to Fresh Curbs on Right of Peaceful Protest, The Wire (October 08,2020 00:00 hours) available at https://thewire.in/law/supreme-court-shaheen-bagh-judgment-fresh-cubs-right-of-peaceful-protest
[5] Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
[6] Romesh Thapper v.
State of Madras, AIR 1950 SC 124
[7]Rajkarnikar, R., 2021. Gender perspective : neutral public space. [online] Cardinalscholar.bsu.edu.
Available at: https://cardinalscholar.bsu.edu/handle/123456789/193375
[8]Lachmandas v. State of Bombay,
1952, S.C.R. 710 (726)
[9] Stephen’s college v.
university of Delhi, 1992 1 SCC 558: AIR
1992 SC 1630: 1991 Supp (3) SCR 121
[10]Plato.stanford.edu.2021. Citizenship, Stanford Encyclopedia of Philosophy/Fall 2017 Edition. [online] Available at: <https://plato.stanford.edu/archives/fall2017/entries/citizenship/> [Accessed 3 September 2021].
