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(2020) PL (HR) November 71

Right to Protest in Contemporary India and Belarus : A Comparative Analysis

RIGHT TO PROTEST IN CONTEMPORARY INDIA AND BELARUS : A COMPARATIVE ANALYSIS

by
Priya Agrawal* and Dhawal Srivastava**
Introduction
The most notable anti-governmental protests have sparked across the streets of
“Europe's Last Dictatorship” as Belarusian citizens have been peacefully demonstrating
against the allegedly manipulated August 2020 Presidential elections, rampant police
brutality and the inhuman

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treatment meted out to the detainees by the State machinery. These protests have
become one amongst many amplifying demonstrations that various establishments
across the world are grappling with along side the constant threat of the coronavirus
pandemic. The right to protest is the expression of the protester of showing dissent
against the authority.

The United Nations Human Rights Committee, coincidentally at a propitious time,

adopted General Comment No. 37 on Article 21 of the International Covenant on Civil
and Political Rights1 (hereinafter, “ICCPR”) that enshrines the right to peaceful
assembly. The general comment reinstated the responsibility of law enforcement State
agencies to protect and enable these peaceful demonstrations2 and the non-usage of
“indiscriminate use of firearms” except a minimal force to curb an escalated tension3 .
The UN Committee has thus held the right to protest, whether offline or online, as a
vital human right4 well protected by the principles of international law, particularly the
I CCPR and various other regional human rights conventions.
This article attempts to provide a comparative analysis with respect to the legal
principle of the right to protest in two distinctive jurisdictions, India and Belarus as
analogous agitations against the ruling dispensation have been observed in both the
countries.
Right to Protest vis-à-vis the Constitutional Framework of Belarus
The governance structure of Belarus is fashioned in a way that enormous powers
vest in the hands of the President and a small clique of advisors. Alexander
Lukashenko, in a totalitarian manner since 1994, has federated enormous powers to
the executive5 and has mandated the same through constitutional means. Post the
disintegration of the Soviet Union and the emergence of Belarus as an independent
country in 1991, the Constitution was adopted in the year 1994 and underwent two
controversial amendments in 1996 and 2004, further widening the supremacy of the
presidential authority.
The Belarusian Constitution, however, confers various rights to the citizens under
Sections 1 and 2 which provides for the principles of the Constitutional system and
rights of individuals with respect to State and society respectively. While Article 3 of
the Constitution defines people as the “source of State power and the repository of the
sovereignty” of the republic, the State (through legitimate constitutional means) still
exercises colossal control
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over the citizens. The coexistence of diverse political ideologies and views in the true
spirit of Belarusian “democracy” is enshrined under Article 4, yet Belarus is notorious
for the crackdown on dissent, an essential facet of a democratic establishment. The
reaction of the State against the recent peaceful protests is the blatant violation of the
constitutional right of citizens to organise rallies, pickets, assemblies, street marches
and demonstrations as provided under Article 34 of the Constitution of Belarus and the
Preamble of the Law of the Republic of Belarus6 , as thousands of protestors were
arbitrarily detained and tortured.7

As observed in the past and contemporary scenario, the crackdown on dissenters

through arbitrary and politically motivated arrests find legality within the Belarusian
Code of Criminal Procedure that provides for detentions which practically validates the
fate of the detainees at the hands of the detainers and investigators rather than the
courts.8 Although the concept of separation of power was introduced in the Declaration
of the State Sovereignty of the Republic of Belarus back in 1990,9 the highly
presidential-centric constitution does not provide much scope for judicial
independence.10
Right to Protest and Indian Framework
India is also witnessing widespread protests and various demonstrations by its
citizens against the various acts of the Government and other authorities. The Right to
Protest is a fundamental right recognised under Articles 19(1)(a) and 19(1)(b) of the
Constitution of India, providing a voice to its citizens to express their dissent
peacefully. This right to protest is not absolute but is subject to the reasonable
restrictions on the grounds contained under Articles 19(2) and 19(3) of the
Constitution.
The statutory framework under the provisions of the Penal Code, 1860 (IPC) and
Criminal Procedure Code provides the power to the authorities such as police officers
and District Magistrate to ensure that public assemblies, protests, dharnas or marches
are peaceful and do not become “unlawful”. These legal provisions provide a wide
array of powers to the police, including the right to use reasonable force to disperse
any unlawful assembly or prohibiting assembly of more than five persons.11
In the recent past, India has witnessed various demonstrations, such as the anti-
CAA protests, caste-based agitations, Jaat reservation protest and many more.
Farmers recently protested against the three new agricultural laws, namely, the
Farmers Produce Trade and Commerce (Promotion and Facilitation) Act, 2020, the
Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm
Services Act, 2020 and the Essential Commodities (Amendment) Act, 2020, that were
passed by Parliament. A common factor that can be observed in all the aforementioned
movements is the suppression of these protests by the State through usage of force,
rampant detentions of the protesters or invocation of powers sanctified under
draconian laws such as the Unlawful Activities Prevention Act, 1967, provision of
sedition under the IPC and so on.

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Comparative Analysis
The right to protest has been guaranteed under the Constitutions of both the
jurisdictions. However, the fate of this constitutional right under both the legal
frameworks is different not because of the State's reaction to the expression of the
same but the role played by their respective judiciaries. Judiciary is the guardian of
the fundamental rights of the citizens. People knock at the temple of justice for the
enforcement of their rights. Hence, Judiciary's responsibility assumes a great
significance in enforcing the fundamental right to protest.
As far as Indian Judiciary is concerned, the Supreme Court12 and the High Courts13
have upheld the right to protest of Indian citizens on various occasions. The Supreme
Court and the High Courts have provided compensation to the protesters and have
declared the usage of the force by the State authorities as unlawful. However, whether
compensation can recompense for the loss caused by the State's clampdown on
dissent remains a major point to consider. On the other hand, the Judiciary in Belarus
is not able to protect this right owing to the excessive control of the executive. The
Supreme Court of the country rejected the appeal of the opposition candidate,
Tikhanovskaya for the annulment of the elections14 and is conspicuously silent on the
civil agitations and detentions.
However, despite this, the Government tries to suppress the voices of people by
exercising the power under anti-terror or national security laws and fails to vindicate
the reasons for the arbitrary arrests. The only justification that the State provides is
the designation of such assembly as “unlawful assembly”. Concerning the usage of
force in curbing such violence or dispersing unlawful assemblies, police have to
accomplish their task with utmost care as law and order needs to be restored,
however, it should also be ensured that “unnecessary force” is not used.15 Sadly, in
reality, such force is used to suppress the voice of the people.
Conclusion
In order to protect the quintessential right to protest and express dissent, which
every person in a democratic country must possess owing to its principle of
safeguarding the right or agreement to disagree, a line of distinction between the
peaceful, lawful and unlawful must be drawn. This distinction is necessary in order to
define the jurisdiction and boundary of the rightful exercise of their right to protest.
The recent surge in demonstrations across the world is the symbolic representation
of the dissatisfaction amongst the people against the authorities. These
demonstrations, protest, etc. acts as a check against the abuse of the power by the
authorities and a watchdog of the Government by ensuring accountability of the State.
It is the right of the people to get their voices heard. However, the State has failed to
espouse its “ultimate goal” of preservation of freedoms and liberties of citizens as
enshrined under Article 21 of the Belarusian Constitution and under Articles 19 and 21
of Indian Constitution. Instead it has exhibited blatant disregard for the right to
protest of the citizens.
The views of the authors are personal and should not be considered as those of
RGNUL.
———
*
BA LLB, 5th year and Student Coordinator
** BA LLB, 2nd year Member, RGNUL, Centre for Advanced Studies in Human Rights (CASIHR)
1 Human Rights Committee, General Comment No. 37 (2020) on the Right of Peaceful Assembly (Art. 21),
CCPR/C/GC/37 (17-9-2020). (OHCHR)
2
Id., para 74.
3 Supra note 1, at para 78.
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4
AFP, Protesting is a fundamental human right : UN, The Hindu (29-7-2020),
<https : //www.thehindu.com/news/international/protesting-is-a-fundamental-right-un/article32225267.ece.
5 Belarus, 25 Ann. Hum. Rts. Rep. Submitted to Cong. by US Dep't St. 1164 (2000).

6Human Rights in the Legislation of the Republic of Belarus, Ministry of Justice of the Republic of Belarus (27-9-
2020, 4.00 p.m.), https : //minjust.gov.by/en/information/human_rights.
7
Belarus : Systematic Beatings, Torture of Protestors, Human Rights Watch (15-9-2020, 1.00 a.m.),
https : //www.hrw.org/news/2020/09/15/belarus-systematic-beatings-torture-protesters.
8 Supra note 5.

9 Alexander Vashkevich, Judicial Independence in Transition 1065 (Anja Seibert-Fohr, 2012).

10 Republic of Belarus, Human Rights Watch (27-9-2020, 6.01 p.m.),
https : //www.hrw.org/legacy/reports/1997/belarus/Belarus-03.htm#P204_24475.
11 See, the Criminal Procedure Act, S. 144, S. 129.

12 Anita Thakur v. State of J&K, (2016) 15 SCC 525, Ramlila Maidan Incident, In re, (2012) 5 SCC 1.
13 Sowmy R. Reddy v. State of Karnataka, 2020 SCC OnLine Kar 1527.
14 Belarus activists jailed, country's Supreme Court rejects election appeal,
https : //www.cbc.ca/news/world/belarus-activists-jailed-1.5699092.
15
Anita Thakur v. State of J&K, (2016) 15 SCC 525.
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