SC says Demonstrations Creating Public Disturbance not Protected u/Article 19(1)(a)

March 17, 2018

Case name: Bimal Gurung v. Union of India

Date of Judgement: March 16, 2018

In this recent case, the Supreme Court has elucidated on the question as to what is the nature and extent of public demonstration that is protected by the Constitution and constitutes freedom of speech and expression under Article 19(1)(a) of the Constitution.

The present case pertained to Gorkhaland agitation since 2007 and the petitioner i.e. President of Gorkha Janmukti Morcha (GJM) was aggrieved by lodging of FIRs against him and other members of GJM for offences under the Indian Penal Code, Prevention of Destruction of Public Property Act, Arms Act etc. by the State of West Bengal against them. The Petitioner in the case primarily prayed to transfer investigation of the criminal case to a Central Investigation Agency.

In view of the aforesaid, the Supreme first delved into the issue of power of the Court to transfer investigation to an investigating agency. Accordingly, reference was made to the case of State of West Bengal & ors. v. Committee for Protection of Democratic Rights, West Bengal and Ors.[1], to state that power of transferring investigation to other investigating agency must be exercised in rare and exceptional cases where the Court finds it necessary in order to do justice between the parties to instil confidence in the public mind, or where investigation by the State Police lacks credibility.

The Court held that the present case was one such rare and exceptional case wherein the Court has to exercise power under Article 32 to transfer enmass cases to other agency.

In order to substantiate as to why the instant case was a rare one, the Supreme Court considered the question as to what is the nature and extent of democratic and peaceful demonstration as protected by our Constitution violation of which may raise violation of fundamental rights of a person?

The Two -Bench of the Supreme Court in the case remarked that Article 19 of the Constitution of India guarantees some of most important fundamental rights to the citizens. Article 19 protects important attributes of personal liberty. Right to freedom of speech and expression as guaranteed under Article 19(1)(a) and the right to assemble peaceably and without arms as protected by Article 19(1)(b) are the rights which in reference to the present case have importance.

That the right of freedom of speech and expression coupled with right to assemble peaceably and without arms are rights expression of which are reflected in carrying demonstration on several occasions. Freedom to air once view is the life line of any democratic institution. The word freedom of speech must be broadly construed to include right to circulate once view by word or mouth or through audio visual instrument. Right of public speech is one form of expression which is also a part of freedom of speech and expression. Demonstrations are also a mode of expression of the rights guaranteed under Article 19(1)(a).

However, the demonstrations whether political, religious or social or other demonstrations which create public disturbances or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, are not covered by protection under Article 19(1). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. From the very nature of things a demonstration may take various forms; “it may be noisy and disorderly”, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Article 19(1)(a) or (b).