Protests & freedoms

Does the protester while asserting his right to dissent from the state respect the right of others to dissent from him?

SIXTY years have proved the sagacity of Dr B. R. Ambedkar's warning in the Constituent Assembly on November 25, 1949, when it finished its job: If we wish to maintain democracy We must hold fast to constitutional methods [and] abandon the methods of civil disobedience and satyagraha [they are], The Grammar of Anarchy. David Mead of the University of East Angha is no reactionary. Every page of his book testifies to his sympathy for the protester. But protest is a democratic right and democracy requires a balance of rights; not least of those who differ with the protest.

The book is astonishingly up to date. It covers the protests at the G-20 summit last year and Tamil protests outside Westminster that year. Some cases of 2010 are also discussed in this massive work of great learning. It cites British cases, those of the European Court of Human Rights, the United States and a couple of others. The United Kingdom's Human Rights Act, 1998, and the European Convention on Human Rights (1950) are analysed incisively. The right to demonstrate combines two fundamental rights, freedom of speech and of assembly.

In the light of the cases, five central chapters discuss the definition of the right to protest, restrictions on the site of protest, constraints which a state imposes on peaceful persuasive protest, the intolerance of obstructive or disruptive protest, preventive powers of the police, and the remedies available in law to the commercial targets of such protest. There is a whole chapter on taking direct action.

Restriction of free speech and protest rights, the author aptly calls censorship by any other name. Lord Justice Sedley once referred to State control of unofficial ideas. The work makes a timely appearance in the context of the unrest in Kashmir and the Northeastern region. Protesters there have neither the weapon, the daring or the skills of those who held Northern Ireland to ransom for over 30 years. Mead considers in detail the case law spawned by Irish unrest.

Democratic protest fills the five-year gap between elections and bestirs Parliament. Other forms of protest seek to sideline it and democracy itself. Put simply, communicative protest that is, standing on street corners shouting slogans, marching through London to denounce the war on Iraq or rallying support for a petition to ban fox-hunting is seen as essential to support an informed, participatory and active electorate, playing its role at persuading and cajoling MPs, officials and private commercial targets. On the other hand, direct action protest obstructing the runway at Stansted, dismantling bombers destined for Israel or Iraq or pulling up GM [genetically modified] crops in a field cannot be seen in the same light. It cannot be an exercise of democratic power for me and my like-minded friends to attempt to impose my will on others who are reluctant to change.

In its train follow other offences. Those engaging in deliberately obstructive, disruptive or intimidatory direct action are more likely to commit general crimes than those who seek to persuade or to show solidarity en masse. The crucial question is: does the protester while asserting his right to dissent from the state respect the right of others to dissent from him?

Even litigation against the state is a form of protest. Submission to disruption and obstruction is not an option for the state. The courts will review their inaction for it is an abdication of constitutional and statutory duty.

In a notable case decided in the U.K. in 1995, a Bench of three judges ruled: Tempting though it may sometimes be for public authorities to yield too readily to threats of disruption, they must expect the courts to review any such decision with particular rigour None of (the councils) it appears, gave the least thought to the awesome implications for the rule of law of doing what they propose. None seems even to have considered the legitimate interests of all those whose livelihood depends upon this lawful trade.

Simon Brown said: The precise point at which the right of public demonstration ends and the criminal offence of public nuisance begins may be difficult to detect. But not only is all violent conduct unlawful; so too is any activity which substantially inconveniences the public at large and disrupts the rights of others to go about their lawful business.

Peaceful satyagraha is different from intimidatory or coercive protest. As Lord Hoffman said: Civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. In India such people resist imprisonment and resort to violence. Politicians and their followers who go on the rampage in India are totally ignorant of these nuances. Worse, the state condones them.

This erudite work deserves a wide readership in India.