Violence, Nuisance Not the Part of Free Speech and Expression: Supreme Court on Darjeeling Hills Violence

A writ petition was filed by Bimal Gurang, President of Gorkha Janmukti Morcha(GJM) praying to transfer of investigation all the FIRs filed against him and members of GJM to any independent investigation agency.  The FIRs were filed by West Bengal Government for violent unrest in the Darjeeling Hills.

A bench comprising of Justice A.K. Sikri and Justice Ashok Bhushan dismissed the petition. The Court did not find the case to be fit where it may exercise the jurisdiction under Article 32 of the Constitution to transfer the case to an independent agency.

The Court checked the constitutional validity of demonstrations. The Court held,  “demonstrations whether political, religious or social or other demonstrations which create public, disturbances or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, are not covered by protection under Article 19(1)”.

Public demonstrations which resort to violence, including stone-throwing are not protected by the fundamental right to free speech and expression under Article 19(1)(a).

Justice Bhushan, wrote the judgment observed that Constitution only protects the right to assemble peacefully. It was also held that public speech should not incite the violence, such speech shall not be covered under Article 19 (1)(a). Right to freedom of speech and expression as guaranteed under Article 19(1)(a) and the right to assemble peaceably and without arms as protected by Article 19(1)(b) are the rights which have importance, the court held.

The court referred to the Kerala High Court’s judgment on ‘bandhs’ to evoke the judicial objections against methods used by particular groups or parties or sects to paralyze the entire citizenry.

No political party or organisation can claim that it is entitled to paralyse the industry and commerce in the entire State or nation and is entitled to prevent the citizens, not in sympathy with its viewpoint, from exercising their fundamental rights or from performing their duties for their own benefit or for the benefit of the State or the nation”, Justice Bhushan reproduced the verdict of the high court given almost 20 years ago.



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