Author: Arifur Rahman
Image Source: Getty Images
According to Joseph Raz, “the ruling idea behind the ideal of personal autonomy is that people should make their own lives. The autonomous person is a (part) author of his own life. The ideal of personal autonomy is the vision of people controlling, to some degree, their own destiny, fashioning it through successive decisions throughout their lives.”[1] Now, the idea of personal autonomy sounds captivating as one can choose what to do or how to act in contrast to coerced choices but the problem arises when one’s personal autonomy interest conflicts with another’s personal autonomy interest. For instance, one’s right to protest which is granted as fundamental rights[2] comes in conflict with other’s right not to be harmed if the protest gets violent.
Accordingly, there is a conflict among the competing interests. On the one hand, it’s one’s right to protest which strengthens democratic culture, and on the other, it’s one’s right to move freely or in a broader context right not to be harmed when the protest gets violent. As per the constitutional law recommendation, the competing autonomy interests need to be balanced. Here, an interesting approach can be taken to balance the autonomy interest in the light of Kai Möller’s “Interest Balancing concept”[3]. This concept can be better understood from a ‘Transplant case’ approach. In this approach, five people need organs to survive, and the only way to save them is to kill one healthy person and use his organs to save the five. Möller states that “the case illustrates the danger of unreflective use of the language of ‘balancing’: there is a conflict between the interests of five people in their lives and the interest of one person in his life.” In the same way, to resolve the conflict, the conflicting interests need to be balanced by following constitutional rights terminology. As per Möller interest balancing concept, “five lives must outweigh one life!”[4]
Now, let’s compare it with the autonomy interest of the protesters exercising the right to protest in rather a violent form against the public interest. When the protesters protest by resorting to violence to attain their gain which may serve arguably a greater number of people later if the demands succeed, can that violence resorting in the protest be justified against the price of the lives that was paid in that violent protest? Well, if we try to apply the ‘Interest Balancing concept’ by weighing the extent of numbers by overlooking moral reasons, the answer would be yes since the implementation of the aim of the protesters will serve the arguably greater number. But if we look at the previously mentioned case deeply and try to adjust moral reasons, it will reveal that the weight of competing interests was the same (right to life) and by putting moral reasons, it seems morally impermissible to state that five’s autonomy interest prevails over one’s. Möller states ‘‘balancing in constitutional rights law is not always about autonomy maximization or interest balancing.’’[5]Therefore, a person’s sacrifice of a life cannot be demanded for enabling others to save their lives through the use of his body parts.[6]
However, in case of protest, the competing interest is the fulfilment of some demands against other’s right not to be harmed or right to life which gets lost in violent protest. Clearly, there is a great disparity in importance between the autonomy interest at stake: one’s right not to be harmed in violent protest and another’s right to protest. Therefore, interest balancing is inadequate. It’s because in exercising the right to protest by resorting to violence, it poses the danger of harming others and cannot be rationalized by weighing the extent of number. Hence, the right to protest cannot be justified when it gets violent and poses an immediate threat to public order. This is when the right to protest gets limited and accordingly the constitution allows the imposition of a limitation on the right to protest on the ground of public order. As a result, the public interest or the autonomy interest of people in general outweighs the autonomy interest of protesters since there is a conflict between the autonomy interests of those who want to protest and those who might be hurt by the resulting violence. Thus, the authorities can break up the protesters on the ground of public order when the protesters resort to violence to attain their demands. But the question is when a protest will be regarded as violent? To answer the question, Cantwell v. Connecticut[7] can offer us some useful guidelines. In this case, it was held that the law enforcement agencies may break up any protest that has turned violent or raises a “clear and present danger”[8] of violence or disorder.[9]
Conversely, now, what if the protest is a mere inconvenience to public? In that case, the protesters right to protest will prevail over the mere inconvenience to public order as it has been repeatedly held that “authorities aren’t justified in breaking up public protests just because they slow traffic, inconvenience pedestrians, are annoying, or make other people mad.”[10] If this is so, how long the autonomy of protesters should be protected against those who become the victims of inconvenience? In Mazdoor Kisan Shakti Sangathan v. Union of India,[11]the court while balancing the rights of the protesters with that of commuters gave an order to Delhi police to ensure that the protesters don’t occupy the public space and roads for an indefinite period of time. The court also submitted that the same goes for those protesters who sought prior permission from the authorities.[12] Hence, the autonomy interest of protesters cannot be protected against the autonomy interest of the commuters for an indefinite period of time even if the protest causes a mere inconvenience rather than violence.
However, the right to protest strengthens democracy by ensuring active participation of citizens in seeking accountability from government. It is one of the democratic mediums to ask the authorities to rectify their actions while there are some flaws in them. The right to protest also enables individuals and groups to seek for accountability if there is a flawed action taken by the government, by showing dissent and sharing opinions.[13] But, in doing so, the protesters should not resort to violence to express dissent or to attain demands by putting their autonomy interest at stake as ultimately the autonomy interest of the public in general will be protected against the autonomy interest of the protesters on the ground of public order. It’s because the right to protest is not an absolute right. At the same time, the law enforcement agency should not break up a peaceful protest by violating protesters’ autonomy interest of right to protest. Thus, the right to protest can play a greater role in enhancing democratic culture in a democratic country.
Author Description:
Arifur Rahman is a Final Year Law Student at University of Dhaka
Endnotes:
[1] Joseph Raz, The Morality of Freedom (Oxford University Press 1988) 369.
[2] For instance, reading together Article 39, 38, 37 of the constitution of Bangladesh unveils that there is a scope of exercising the right to protest under the constitutional ambit of Bangladesh.
[3] Kai Möller, The Global Model of Constitutional Rights (Oxford University Press 2012) 137.
[4] Kai Möller (n 3)145.
[5] Kai Möller (n 3) 200.
[6] Ibid.
[7] (1940) 310 U.S. 296.
[8] ‘Clear and present danger test’<https://www.mtsu.edu/first-amendment/article/898/clear-and-present-danger-test> accessed March 29, 2021.
[9] E.A Gjelten, ‘When May Government Restrict Your Right to Protest and Gather?’<https://www.lawyers.com/legal-info/criminal/the-right-to-gather-has-some-restrictions.html> accessed March 29, 2021.
[10] Ibid.
[11] (2018) AIR SC 3476.
[12] Snehal Dote, ‘Right to protest vs Convenience of Public’ (Oxford Human Rights Hub, 2020) <https://ohrh.law.ox.ac.uk/right-to-protest-v-convenience-of-the-public-the-indian-supreme-courts-decision-on-shaheen-bagh-anti-caa-protests/> accessed March 28, 2021.
[13]‘The Right to Protest: Principles on the protection of human rights in protests’ (Article 19, 2016) <https://www.article19.org/resources/the-right-to-protest-principles-on-the-protection-of-human-rights-in-protests/> accessed March 29, 2021.
0 Comments