With Imran Khan marching to Islamabad from Lahore, the debate on the scope and legality of right to protest has gained significance.
The right to protest is derived from the fundamental right of assembly guaranteed under article 16 of the constitution of Islamic Republic of Pakistan, 1973, that states: “Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order”.
From the bare reading of this article, it seems clear that right to protest is not an absolute right but is subject to limitations and restrictions. Jurisdictions around the world have termed the right of assembly as a fundamental, sacred, and inalienable right of citizens, with much emphasis on its careful implementation. Assembly must be within the ambit of law – not against national security or for advancement of disorder and crime or curtailment of rights and freedoms of others.
Jurisdictions around the world have termed the right of assembly as a fundamental, sacred, and inalienable right of citizens, with much emphasis on its careful implementation.
The Supreme Court of Pakistan in Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57, 104 ref.) recognized assembly as a right to preserve the democratic order, and held that this right could not be used to overthrow a lawful government or to bring about a revolution or insurrection.
Similarly, the US Supreme Court in the case of American Communications v. Douds [(1951) 340 US 268] observed that: “Freedom of assembly is dependent upon the power of the constitutional government to survive. If it is to survive, it must have the power to protect itself against unlawful conduct and under some circumstance, against incitements to commit unlawful acts.”
The Indian Supreme Court elaborated in the case of Bimal Gurung v Union of India [(2018) 15 SCC 480] that political, religious or social demonstrations that threaten public and private property cannot be guaranteed or safeguarded under the right of assembly.
In the Re Ramlila Maidan Incident case [2012 AIR SCW 3660], the Indian Supreme Court observed that to maintain and preserve public peace and order is an unequivocal duty of the state and its organs.
Therefore, right of assembly, along with freedoms of association and speech, cannot be exercised by infringing on fundamental rights of others. The court stated that demonstrations in public spaces, specifically on roads, cannot be held without obtaining permission. Roads are for the use of vehicles and pavements for pedestrian.
In common parlance, right to peaceful protest and procession has often been misunderstood as a license to create inconvenience to general public, often forgetting that right to protest ends when other person’s right to free movement and right of trade and business begins.
The courts in Pakistan have adopted a similar approach. The Supreme Court of Pakistan in Suo Moto Case no.7 of 2017 (PLD 2019 SC 318) directed the police and other law enforcement agencies to develop standard plans and procedure with regard to how best to handle rallies, protests and dharnas. It advocated restraint in implementation of such plans and procedures, and entrusted the executive with this function amid certain directions. The Supreme Court directed that in the maintenance of public order, every effort is to be taken to avoid causing injury and loss of life; the federal and provincial governments must monitor those advocating hate, extremism and terrorism and prosecute perpetrators in accordance with the law, and ensure that such plans and procedures were flexible enough to attend to different situations.
The Islamabad High Court followed similar suit in the recent case of Riaz Hanif Rahi V Federation of Pakistan (2018 CLC 1160 Islamabad) where it held that maintaining public order is a crucial responsibility of the state and its functionaries. It must consider several factors while imposing restrictions and conditions to regulate a peaceful protest -- so that the rights of other citizens remain protected. It may impose restrictions on route or venue or impose other conditions to maintain public order.
In common parlance, right to peaceful protest and procession has often been misunderstood as a license to create inconvenience to general public, often forgetting that right to protest ends when other person’s right to free movement and right of trade and business begins.
In the landmark words of Indian Kerala High Court in P.A. Jacob case (AIR 1993 Kerala 1), “Order to liberty, is what oxygen to life is. The liberties of some, could prove to be the end of the liberties of others.”
In this long-nerving debate, it must be kept in mind that in any civilized and democratic society, freedoms and restrictions co-exist to protect and preserve public order. Right to assemble or protest cannot be exercised in an unbridled manner, and an equilibrium has to be maintained by placing reasonable restrictions on freedom to assemble peacefully for public order, to allow every citizen to exercise their guaranteed rights with freedom and a sense of responsibility to safeguard rights of others.