Srimathi VenkatachariCan riding a motorcycle be an act of dissent? On Aug 11, Madras high court Justice V Lakshminarayanan, questioning the decision by police to deny permission for a Dravidar Kazhagam rally against NEET and EWS reservation, observed that the organisation was seeking to express its views, not engage in anti-social activity. In that observation lies a larger constitutional question: When does regulation of dissent become suppression of dissent?The observations are significant because they illuminate this distinction. They are, of course, oral observations and not a final judicial pronouncement. But the constitutional question they expose is hardly pedestrian.Article 19(1)(a) guarantees freedom of speech and expression, while Article 19(1)(b) guarantees the right to assemble peaceably and without arms. These freedoms are fundamental, but not absolute. Speech is subject to the reasonable restrictions specified in Article 19(2); peaceful assembly is separately subject to Article 19(3), including restrictions in the interests of public order. The question therefore is not whether the state may regulate protest — plainly, it may — but whether the restriction pursues a legitimate objective, bears a rational connection to it, and goes no further than reasonably necessary to achieve that objective.Supreme Court has repeatedly recognised peaceful protest as a legitimate democratic activity. Himat Lal K Shah vs Commissioner of Police (1973) and Mazdoor Kisan Shakti Sangathan vs Union of India (2018) establish the broad proposition that democratic dissent enjoys constitutional protection, subject to legitimate regulation. This distinction matters. If traffic is the difficulty, regulate it. If safety is the concern, impose helmets, speed limits, marshals and route restrictions. If a particular route is unsuitable, prescribe a reasonable alternative. If timing creates a genuine public-order difficulty, regulate timing.That is what constitutional administration ought to mean: managing the consequences of exercising a right rather than eliminating the exercise of the right itself. Otherwise, “law and order” becomes the constitutional equivalent of a Swiss Army knife: whatever the administrative difficulty, one unfolds the same provision.In Amit Sahni vs Commissioner of Police (2020), Supreme Court recognised the legitimacy of peaceful protest while emphasising that public ways cannot be occupied indefinitely to the grave inconvenience of others. The constitutional balance is neither “protest whenever and wherever you please” nor “protest only when state approves of your cause”. It is simpler: Protect the right. Regulate the consequences.But an administrative permission mechanism cannot become a substantive veto over the political content or practical effectiveness of peaceful protest. Otherwise, Article 19(1)(b) risks becoming less a fundamental right than a fundamental right subject to file movement.Protesters may be wrong. A court may agree with one, neither or both on different questions. None of this answers the prior constitutional question: are citizens entitled peacefully to say that the state is wrong? The constitutional presumption must ordinarily favour that freedom, subject to restrictions demonstrably justified under Article 19.A judicial decision settles the legal question before the Court. It does not extinguish democratic debate about the wisdom, consequences or philosophy of a policy. Otherwise, constitutional democracy would become a rather curious arrangement in which, once the Court has spoken, citizens may applaud but ought not argue. That would make democracy efficient, but less democratic.There is also an Article 14 (right to equality) dimension. A Formula 4 race and a political rally are obviously different activities; the state need not treat unlike activities the same way. But equality requires that distinctions rest on constitutionally relevant considerations, not political convenience. If the concern is road safety, road safety must remain the concern whether the road is occupied by racing cars, political demonstrators, religious processions or public spectacles. Article 14 does not demand identical treatment. It demands that differential treatment have an intelligible and constitutionally relevant basis.There is one final reason for constitutional caution. Govts change. The state remains. Today’s govt may be tomorrow’s opposition; today’s opposition may tomorrow inherit the same police machinery and the same temptation to discover administrative reasons for inconvenient dissent. Fundamental rights therefore cannot be administered according to electoral calendars. The state must remain neutral even when politics is not.After all, the Constitution was not drafted to make power comfortable.It was drafted to make power answerable.(The writer is an advocate in Madras high court)
