Right to Dissent: On the Verge of Extinction?

*Prasoon Shekhar & Aditya Aryan

“There can be no democracy without dissent.” – (J) Deepak Gupta

The above-mentioned words of J. Gupta are enough to explain the importance of dissent in a
democracy. India is considered the world’s largest democracy. In the Constitution, several
fundamental rights guaranteed has been provided on curtailment of which a person can directly
approach the Hon’ble Apex Court under Article 32, right to dissent being one of them.

In the last few years, our country has noticed several protests and disagreements from the steps
taken by the government like Anti-CAA/ NRC protests, protests against Farmers Bill, protests against
Draft EIA and so on. It is ironic that dissenters in different countries like ‘Black Lives Matter’ are
praised and their acts are appreciated but in our country, dissenters are often called anti-national,
traitor just for the different perspective/ opinion they hold. In the present piece, I would discuss the
importance of the right to dissent, some leading cases where the government has tried to curb the
right to dissent, and the role of the judiciary in protecting the right.

I. Introduction

The Preamble which gives the structure to the Constitution also known as the backbone of the
constitution provides for LIBERTY of thought, expression, belief. Right to Dissent is nowhere
specifically provided in the Constitution however the Right to Dissent flows from 19 (1), (2), and (3) of
the Constitution i.e, freedom of speech and expression, freedom to assemble peacefully without arms,
and freedom to form association and union, subject to reasonable restrictions provided under Article
19.

Article 19 of the Universal Declaration on Human Rights, 1948, provides for the right of freedom of
opinion and expression which includes the right to form an opinion without any interference and to
receive and pass ideas and information through any media. In Chairman of Railway Board & Ors. v.
Chandrima Das & Ors.1, it was observed that the Universal Declaration on Human Rights was
recognized as a Model Code of Conduct internationally and the principles of the same can be applied
in domestic jurisprudence if needed.

In the landmark case of Keshvananda Bharti v. the State of Kerela2, CJ. Sikri observed: “What
distinguishes India is the adoption of a democratic way of life, founded on the Rule of law.
Democracy accepts differences of perception, acknowledges divergences in ways of life, and
respects dissent.” In the Case of Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and

* Students, Third Year, BBA LLB (Hons.) at The ICFAI Law School, The ICFAI University, Dehradun[Authored on: 24.02.2021]
1Chairman, Railway Board & Ors. v. Chandrima Das & Ors., MANU/SC/0046/2000
2
Keshvananda Bharti v. the State of Kerela MANU/SC/0445/1973.

1|Page

Published in Article section of www.manupatra.com

Ors.3, the court observed: “Above all, it must be realized that it is the right to question, the right to
scrutinize and the right to dissent which enables an informed citizenry to scrutinize the actions of the
government. Those who are governed are entitled to question those who govern, about the discharge
of their constitutional duties including in the provision of socio-economic welfare benefits. The power
to scrutinize and to reason enables the citizens of a democratic polity to make informed decisions on
basic issues which govern their rights.”

II. Prominent Areas where the government tried to Curb Right to Dissent

From the recent instances of the present government, it is evident that the government is trying to
curb the right to dissent which is an intrinsic part of the Right to Democracy. Even if the dissent of
farmers against the recent farm laws are taken into consideration, it is evident that the present
government tried all tricks and tactics to stop them. Roads were dug, water cannons, and all possible
means of violence was used by the Police. The Supreme Court on an earlier occasion4 refused to
interfere with the protest in question and clarified that the right to protest is part of a fundamental right
and can be exercised subject to public order. After today’s hearing, the Hon’ble Supreme Court
decided to suspend the implementation of the three controversial farm laws and decided to constitute
a committee that can bring an amicable solution to the government and the protesting farmers.

Another recent instance was the Anti – CAA/ NRC protests which were going on throughout the
country and even at Shaheen Bagh. This time in the case of Amit Sahni v. Commissioner of Police &
Ors.5, the courts tried to create a balance between the right to dissent/ protest and the right to public
mobility. The courts observed that in a democracy dissent is not only constitutional but is also
indispensable. The court held that democracy and dissent go hand in hand but it observed that
dissent should be expressed at designated places alone. Later, in the Anti –CAA/ NRC matter Kafeel
Khan was detained for giving a provocative speech and he was put up in Police Detention after
imposing provisions of the National Securities Act. The Allahabad High Court went on to observe “The
speaker was certainly opposing the policies of the government and while doing so certain illustration
are given by him, but that nowhere reflects the eventualities demanding detention. A complete
reading of the speech prima facie does not disclose any effort to promote hatred or violence.” and
detention was held as bad in law and hence set aside. 6 The State of UP filed an SLP in the matter
however, the Hon’ble Supreme Court refused to interfere in the matter as it did not found any reason
for interference.7

Another such instance is when the MOEFC, Government of India came with the Draft Environmental
Impact Assessment, 2020. The provisions of the drafts were highly criticized by the Environment
Activists for several reasons – post facto environmental clearance and abandoning public trust

3
K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors., MANU/SC/1044/2017.
4
Rakesh Vaishnav & Ors. V. Union of India & Ors. (WP (Civil) 1118/ 2020) dt. 17.12.2020.
5
Amit Sahni v. Commissioner of Police & Ors., MANU/SC/0742/2020.
6Nuzhat Perween vs. State of U.P. and Ors., MANU/UP/1486/2020.

7
State of U.P. and Ors. vs. Nuzhat Perween, MANU/SCOR/46685/2020.

2|Page

Published in Article section of www.manupatra.com

doctrine some of them. A website namely, Friday For Future started an online complaint to protest
against the said Draft. The government has banned the said website for the simple reason of
organizing a campaign through which people dissented against the draft and a notice was served to
threaten them by given reference of Section 18 of UAPA (draconian law). Later, after several voices
being raised on the banning of the said website, it was resumed.

III. Dissent as the channel of democracy:

While hearing a batch of petitions, including the one filed by Mazdoor Kisan Shakti Sanghtan
challenging the decision of the National Green Tribunal, which had banned all kinds of protests at
Jantar Mantar in New Delhi, the apex court stated that the Right to peaceful protest is a fundamental
right embedded under the constitution of India.

The constitution of India through Article 19(1)(a) provides freedom of speech and expression and
Article 19(2) provides reasonable restrictions on such freedom.

This specific right provided under our constitution is also subject to reasonable restrictions in the best
interest of the sovereignty and integrity of our nation, as well as for law and public order.

Dissent is an essential need in a democratic country. If a country wants to grow in an overall holistic
manner wherewith the economic rights, the civil rights of the citizen are also protected then dissent
and disagreement must have to be permitted and should be encouraged. If there is area discussion,
disagreement, and dialogue then only we can arrive at better conclusions.

A different feature of any democracy like ours is the space offered for legitimate dissent, which cannot
be trampled by any executive action.

IV. Right to Dissent Across Global Level:

The right to dissent includes the exercise of individual and collective rights of free expression,
association, assembly, and participation in public. These freedoms cover the rights to receive and
provide information, debate, and impact decision-making about matters of public concern.

Article 7 of the Declaration on Human Rights Defenders straight-forwardly acknowledges that

‘Everybody has the right, independently and in alliance with others, to evolve and explore present-day
human rights ideas and goals and to advocate their acceptance. In spite of legal obligation enforced
on States to protect, respect, and fulfil the rights to protest as well as dissent, these rights are always
misinterpreted and growingly infringed and breached, with protesters going through atrocious
outcomes which includes detention, confinement, captivity, Dislocation, Disappearance, vanishing,
and even in some cases Death.

V. Need Of Dissent In Democratic Country Like Ours:

3|Page

Published in Article section of www.manupatra.com

The History of the advancement of mankind is a history of informed dissent. In a democratic country
like ours, the need and importance to accept disagreement and dissent of opinion is an indispensable
element of plurality. Viewed in this way, the right of dissent additionally becomes the duty of dissent
as strategies to vanquish dissent gravitate to restrict the democratic essence. In a broader sense,
dissent plays an essential role in averting serious issues emanating out “group polarization” and
“social cascades” which act as discouragement on free expression of dissent.

India, has its traces back to when the seeds of protest during our freedom struggle were sown deep,
to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode
and manner of dissent against colonial Rule cannot be equated with dissent in a self-ruled
democracy. Our Constitutional scheme comes with the right to protest and express dissent, but with
an obligation towards certain duties.

Dissent has been recognized by the Supreme Court of India as the right of freedom of speech
guaranteed as a Fundamental Right under Article 19(1) (a) of the Constitution of India. The apex court
has remarked that “the restrictions on the freedom of speech must be couched in the narrowest
possible terms” and the proviso of Article 19(2) is valid and legitimate in the way that restrictions on it
have to be ‘reasonable’ non-arbitrary, excessive or disproportionate.

VI. Conclusion

The Judicial system of our country plays an important role in elucidating and implementing the law
and resolving controversies among 2 citizens or the citizen and the state. The judicial system must
uphold rule of law in the country and protect the Constitution of our country. The fresh judgment by
the apex Court where Prashant Bhushan was convicted for contempt of court and was fined Rs. 1 and
whereas Allahabad High Court terminated NSA charges on Dr. Kafeel Khan after 7 long months of his
illegal detention.

An encouraging criticism, productive, and meaningful dialogue is the characteristic of a democracy.

But before that can happen, we require to have a much more informed and educated society having
dedication for the safeguarding of contemplative dialogue as an essential featureof every democracy,
specifically a prosperous one. It’s high time and the system should see the light that criticism can
bring reformatory measures, and help in improving the rights of all. “Democracy must celebrate
dissent, not curb it”.

Finally, I would like to conclude with the words of J. Madan Lokur “Dissent and disagreement are
slowly being turned into sedition; sedition is slowly being turned into an offense under the UAPA and
an offense under the UAPA and an offense under the UAPA will soon be turned into a national
security issue inviting the frightening prospect of an invocation of the draconian preventive detention
law.”

4|Page

Published in Article section of www.manupatra.com