R.G Kar Protests and the Reignited Question of Protests on Matters Sub Judice
**Ahan Basu
Owing to the R.G. Kar incident, Kolkata had been a hotbed of protests and rallies, often claimed to be of unprecedented magnitude in the near past. The city has never been alien to the phenomenon of protests since before 1947. However, in a post-colonial set up, governed as per a representative democratic model, the scenario of protests becomes a convoluted discourse. Article 19 (1) a & b under Part III of the Constitution ensures freedom of speech and expression and freedom to assemble peacefully without arms as Fundamental rights, respectively. In both these instances there are placed ‘reasonable restrictions’ on grounds of public order, decency, morality, contempt of court, etc.
However, grey areas with regards to the right to assembly on matters which are sub judice in a court of law. The principle of res sub judice (Section 10 of the CPC) entails the prevention of trial of similar cases in different courts at the same point of time, to streamline the judicial process and prevent the problems of multiple and differential judgements. According to the Oxford Reference Library, a sub judice rule has been referred to as ‘a rule limiting comment and disclosure relating to judicial proceedings in order not to prejudge the issue or influence the jury’.
Hence, a rather controversial binary seems to have resurfaced as to whether the right to protest is an absolute right or not.
Right to Protest: Absolute or Qualified?
Right to protest has been implicitly accepted as a Fundamental Right under Article 19 (1) a & b, though with reasonable restrictions. Hence, the right is not absolute but qualified. This has been upheld by the Hon’ble Supreme Court and High Courts across the Indian territory in different cases.
In the Mazdoor Kisan Shakti Sangathan Case (2018), the apex court held that the right to protest had to be balanced with Right to Life under Article 21, to be able to live their life without the intrusion of such rallies or protests.
In the Shaheen Bagh Case (2020), the apex court once again upheld the right of ‘peaceful’ protests without the inconvenience of access to public roadways and pathways.
Similarly, in the Annu Tandon Case, the Allahabad High Court while upholding the trial court’s verdict, opined that the right to hold protests is a recognised right under Part III, but only if held without the commission of any offence. Here, the bench commented,
……. The citizens of this country have rights for demonstrations,
agitations and staging of protests…. subject to reasonable restriction.
The Calcutta HC in September 2023 had, on the matter of rail blockades by the Kurmi community, opined such acts to be unconstitutional, suggesting that the community could not hold the innocent citizens hostage with their protests. This takes care of the rather non-controversial aspect of absoluteness of the right to protest. But the more significant question is does/should the sub judice principle qualify as a reasonable restriction on the conduct of protests?
The sub judice clause
Hypothetically, if we aim to incorporate the sub judice clause as a reasonable restriction, that would demand amendment to Article 19(2), 19(3) and 19(4). During the 2020-21 farmers’ protests on the allegedly controversial farm laws, the bench comprising Justice Khanwilkar and Justice Ravikumar, while hearing the plea of Kisan Mahapanchayat (a farmers’ body) regarding permission to organise a Satyagraha, had opined:
Once the party approaches the court challenging the validity
of the Act, after that what is the question of protests? Once
you have come to court, you have exercised your option.
However, there may be observed one concern with correlating this line of thought with the R.G. Kar protests. In the Kolkata case, the issue has to do with an incident per se and not an Act or law of the Parliament or the state legislature. Nevertheless, the issue concerns itself with whether or not a matter sub judice (be it a law or an incident) should be protested on.
On the matter before the Supreme Court, there has been raised a set of questions by the Court on several dimensions of the case. Thus, there is a judicial aperture for the protestors to contest the cause on the legal front, something that is already underway.
The most obvious need for protests then is to publicise and enhance media traction and drag the public eye to a certain concern. Protests therefore act on a more empirical level by attempting to notify the state or relevant authorities about the popular discontentment. It works on a ‘bandwagon effect’ – a cognitive bias which pushes an individual to be influenced and ultimately adopt the behaviour and ideals of the general public.
Protests: ‘Good’ and ‘Bad’
The bigger question lies on the qualitative aspect of a protest i.e what is a ‘good protest’ and what is a ‘bad’ one (if any)? Analysing it in terms of merely outcomes as to whether the end goal was achieved is not a good metric. Consider, if the objective is malafide (again something subjective), then its success would be a rather uncanny outcome. However, to avoid the nitty gritties of normative questions on what the content of ‘good’ (what qualifies as good) and ‘bad’ is, if we stick to the mere presence or absence of a cause or intent for the protest, that could lead to a meaningful discourse on whether it was a good (cause there) or a bad (no cause) protest. Any public dissatisfaction can be labelled as the cause and hence that is a broad spectrum. But for a lack of it, we can consider an instance where a government policy has been rolled out that instigates dissatisfaction from the general public. Now if the government rolls back such a policy, there ceases to exist a cause for a further protest on that ground, thus making any further protest on that specific ground a causeless one.
Why should protests have a ‘cause’?
This can be best explained by analysing JS Mill’s ‘harm principle’. In ‘On Liberty’, Mill highlights the necessity for state intervention for only actions that cause harm to others. Here Mill refers to human actions as either being ‘self-regarding’ (concerning with and impacting only the self) or ‘other-regarding’(concerning with and impacting the self as well as others). It is the latter kind of actions that the state can interfere with, if the need arises.
Protests largely fall in the framework of ‘other regarding actions’, given that they tend to take recourse to disruptive means to deliver the core substance of the issue to the masses. This ranges from road blockages to demonstrations, hartals, etc.
Therefore, if an action is undertaken without the care for a cause, then it is inevitably a ‘disruption without a cause’ and thus antithetical to common sense and morality. It is primarily because of this reason, the fact of the general adverse impact of the protestors’ actions on public life, that protests with inherent disruptions should offer something positive in terms of the end goal it is trying to achieve.
The idea then is to gauge whether or not the cause of protest being sub judice amounts to the erosion or stalling of the cause thus rendering any further protest on the same cause a ‘bad’ protest.
Protests on matters sub judice
The right to protest being curbed on grounds of a matter being sub judice can raise apprehensions about whether that can act as a deterrent for protests and public agitation in general from taking place, in cases where the judiciary functions effectively. There can be a few reasons as to why this cannot be necessarily true.
Firstly, there needs to be a difference between a protest, which had an adverse effect on civil life and general public agitation and discontentment. In cases where the former is within the constitutionally mandated space, there often exists a grey area when such protests take a turn deviant from its proclaimed stance; something that is way more radical and has the potential to disrupt usual civic life. In such cases, if they overstep the boundary of reasonable restrictions, they can still be prosecuted accordingly, irrespective of the sub judice status.
Secondly, the question of judicial accountability to the people. This subsequently probes the aspect of whether there should be a room for protests on matters which are sub judice considering such populist impact on the judiciary and its decision-making process, which might be coloured in the wind of such protests.
Thirdly, the judiciary is not dealing with such an issue for long periods of time. Hence, once the verdict is released, the protestors can still determine whether or not they are satisfied and take further steps accordingly, whether it be filing for a review petition or a civilian protest projecting the popular discontentment.
The latter two of the aspects beg further probing.
A(n) (ir)responsible judiciary(?)
The perennial glitch in India, of a responsible versus an independent judiciary, has been a cause for introspection for some time now. The concern vis-a-vis accountability, is that once appointed, judges have very little control from either the Parliament or the Executive. No doubt there exists intra-judiciary regulation of the Supreme Court over the High Courts and the High Courts over the respective subordinate courts, but that is within the ecosystem of the judiciary with no popular participation in it and to some extent that is fair.
Replication of popular sentiments is perhaps in the domain of the Parliament and in the Executive. Here again a reference has to be made to Mill’s idea of the ‘Tyranny of the Majority’, the hegemonic domination (in actions, ideologies, knowledge systems, etc) of the majority number in society. For Mill, this was unfair; and it is perhaps to prevent such majoritarian biases that a non-populist institution such as the judiciary exists and also maintains the image of ‘aloofness’ from general public discourse to uphold the ‘sanctity’ and unbiased nature of the judiciary, as had been envisioned by the founding fathers.
Post-verdict scope of protests
This is perhaps the most important dilemma. The opportunity of protests does not get relinquished if one waits for the verdict of the judiciary on the issue at hand and then proceeds based on the outcome. If that involves protesting on a court verdict, so be it. But active protests on a cause that is sub judice seems to be a direct clampdown on the principle of judicial independence.
This is because of the simple fact that large-scale protests have the inherent tendency of generating a certain kind of consciousness and narrative. Such narratives also tend to have a profound penetrative force which may affect the Court’s decision-making processes and lead the Court in a direction, disallowing decisions to be made based on the ‘merit of the case’. After all, the Court is not insulated from such developments at the societal level. There are avenues by means of Public Interest Litigations which creates an avenue for taking up the matter in a more legal-institutional manner for redressal, instead of a public protest.
The primary question is that when a matter is sub judice and the Court has taken cognisance of the same and is underway with the trial, what is the content or cause of the protest? The answer can be two-fold. One, it can be an agitation against the Court or secondly, it can be against the original perpetrator(s) who is now a party to the trial.
The former is hardly sensible considering that the Court has to carry out a fair trial to arrive at its decision which brings us to the second case.
In the R.G. Kar case, the State of West Bengal has been made a party to the case before the Hon’ble Supreme Court. Protests have continued against the state and the administrative and police officials of the state regarding their ‘questionable role’ in the investigation process and the alleged disregard for established standards of procedures for investigation. Two things have to be considered here:
Firstly, the Court has taken cognisance in the loopholes of the administration and the directives issued by the State government post the incident as precautionary measures and reprimanded the state for the latter.
Secondly, the Court has highlighted that the CBI investigation is aiming to uncover the “absolute truth” adding that the probe should not be hurried and adequate investigation time should be allowed.
Both are valid and reasonable developments. But here arises the question: What are the protests about now? If it is against the administrative officials, then the investigation and the subsequent verdict of the Court will lead the way ahead. If it is against the CBI, one should realize the pressure and the usual time period for such a scale of investigation. And if against the Court it has already been clarified why a bare minimum amount of time has to be allowed to the Court especially when the trial is contingent upon the CBI investigation itself.
Then what is the cause for the protests? The Bengal protests have had a notable tagline so far of “We Want Justice!” and “Justice for RG Kar!”. The question is, should there be protests seeking justice when the procedure for its delivery is already underway? The response to this seems to be filled with void. Particularly, because such protests do not just demand justice as it would be provided by the judicial system, but rather have tended to determine the method of such justice provision through the ‘acceptable’ verdict of capital punishment against the perpetrator(s). Notwithstanding the questions of whether it is a fair claim to make or not, it surely is a claim that impugns the fairness and unbiased decision making on the part of the apex court.
The Road Ahead
Though not considered a part of reasonable restrictions under the system at work in status quo, protests on matters sub judice require greater and deeper analysis and possible outcomes which can atleast alleviate the possibilities of such protests from interfering in the judicial process underway on the very same matter. This might as well require a Constitutional amendment to Part III and necessary adjustments to the relevant sections in the penal codes. Whether or not and if so, then what kind of punitive action can be taken against violators, are questions that have to be answered once the bottomline of acknowledging such protests as detrimental to the judicial process has been established.
**Ahan is a graduate from St. Xavier’s College Kolkata, with a major in Political Science BA (Hons). His areas of interest include Indian secularism, post-Partition refugee studies, constitutional law, governance and public policy, social justice and India’s foreign policy vis-a-vis the Asia-Pacific. An avid debater, he also takes interest in flash fictions with publications to his name.
**Disclaimer: The views expressed in this blog do not necessarily align with the views of the Vidhi Centre for Legal Policy.