By: M.A.Rashid |

Doctrine of sovereign immunity does not apply to cases of fundamental rights violation and hence cannot be used as a defence in public law. A distinguishing feature of any democracy is the space offered for legitimate dissent, said the Court.

Supreme Court of India  on August 12, 2016  held that the right to peaceful protest is a fundamental right guaranteed in the Constitution and the aforesaid right is subject to reasonable restrictions in the interest of the sovereignty and integrity of India, as well as public order A two Judge Bench comprising Justices A.K.Sikri and R.K.Agrawal was hearing a writ petition filed by the petitioners who are migrants of the State of Jammu & Kashmir.

The allegation in the Petition was that they had planned to take out a peaceful protest march up to Delhi for ventilating their grievances. However, when they reached near Katra in Jammu & Kashmir, the authorities through their police personnel had beaten up and manhandled these migrants in a most brutal and barbaric manner on 07.08.2007.

According to the Petitioners this incident has violated their rights guaranteed to them under Articles 14, 19, 21 and 22 of the Constitution of India and prayers are made in the petition for taking criminal action against the erring officials, and also to pay compensation to each of the petitioners and other Jammu migrants who suffered serious injuries, in the sum of Rs. 10 lakhs.

The Bench observed that holding peaceful demonstration in order to air their grievances and to see that their voice is heard in the relevant quarters is the right of the people. Such a right can be traced to the fundamental freedom that is guaranteed under Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution. Article 19(1)(a) confers freedom of speech to the citizens of this country and, thus, this provision ensures that the petitioners could raise slogan, albeit in a peaceful and orderly manner, without using offensive language.

Article 19(1)(b) confers the right to assemble and, thus, guarantees that all citizens have the right to assemble peacefully and without arms. “It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest.

Organised, non-violent protest marches were a key weapon in the struggle for independence, and the right to peaceful protest is now recognised as a fundamental right in the Constitution”, said the Bench The bench has also remarked that it is unfortunate that more often than not, such protestors take to hooliganism, vandalism and even destroy public / private property. In the process, when police tries to control, the protestors/mob violently target policemen as well.

Citing the recent incidents the Bench opined as follows: “Unruly groups and violent demonstrations are so common that people have become to see them as an appendage of Indian democracy. All these situations frequently result in police using force. This in turn exacerbates public anger against the police. In Kashmir itself there have been numerous instances where separatist groups have provoked violence. In this scenario, task of the police and law enforcing agencies becomes more difficult and delicate.

In curbing such violence or dispersing unlawful assemblies, police has to accomplish its task with utmost care, deftness and precision. Thus, on the one hand, law and order needs to be restored and at the same time, it is also to be ensured that unnecessary force or the force beyond what is absolutely essential is not used. Policemen are required to undergo special training to deal with these situations. Many times the situations turn ugly or go out of control because of lack of sufficient training to the police personnel to deal with violence and challenges to their authority”.

The Bench also observed that in those cases where assembly is peaceful, use of police force is not warranted at all. However, in those situations where crowd or assembly becomes violent it may necessitate and justify using reasonable police force. “However, it becomes a more serious problem when taking recourse to such an action, police indulges in excesses and crosses the limit by using excessive force thereby becoming barbaric or by not halting even after controlling the situation and continuing its tirade. This results in violation of human rights and human dignity. That is the reason that human rights activists feel that police frequently abuses its power to use force and that becomes a serious threat to the rule of law”, it added Compensation for violation of Fundamental Rights After analysing the facts in the present Case, the bench found that initially it was the petitioners/ protestors who took the law into their hands by turning their peaceful agitation into a violent one and in the process becoming unruly and petting stones at the police.

On the other hand, even the police personnel continued the use of force beyond limits after they had controlled the mob. In the process, they continued their lathi charge. They continued to beat up all the three petitioners even after overpowering them. It is apparent that to that extent, respondents misused their power.

To that extent, fundamental right of the petitioners, due to police excess, has been violated. In such circumstances, in exercise of its power under Article 32 of the Constitution, this Court can award compensation to the petitioners. The Bench has summarized the principles relating to awarding compensation for breach of Fundamental Rights of Citizens, as follows:

First, it is clear that a violation of fundamental rights due to police misconduct can give rise to a liability under public law, apart from criminal and tort law.

Secondly, that pecuniary compensation can be awarded for such a violation of fundamental rights.


Thirdly, it is the State that is held liable and, therefore, the compensation is borne by the State and not the individual police officers found guilty of misconduct.

Fourthly, this Court has held that the standard of proof required for proving police misconduct such as brutality, torture and custodial violence and for holding the State accountable for the same, is high. It is only for patent and incontrovertible violation of fundamental rights that such remedy can be made available.

Fifthly, the doctrine of sovereign immunity does not apply to cases of fundamental rights violation and hence cannot be used as a defence in public law.

Finally , finding that even the petitioners are to be blamed to some extent, the Court has directed to award a compensation of ₹2,00,000 (rupees two lakhs only) to petitioner No.1 and ₹1,00,000 (rupees one lakh only) each to petitioner Nos. 2 and 3, which shall be paid to these petitioners within a period of two months. Read the Judgment here.

Read more at: http://www.livelaw.in/right-peaceful-protest-fundamental-right-sc/