Minors’ Participation In Protests: Balancing Rights And Restrictions

By Soumya Ghosal

The most distinctive characteristic of a democratic setup is the right to express your dissent against the majoritarian opinion or the authoritarian view. Justice D Y Chandrachud described the right to express dissent as the “safety valve” of a democracy, lacking which the whole institution can come crumbling down.[1] The most effective and promising way of conveying one’s disagreement has been through the way of protesting.

The Judiciary has purported time and again that the Right to Protest is enshrined in the Constitution within the ambits of Articles 19 and 21.[2] This right, just as any other Fundamental Right, is available to all of its citizens – even to minors.[3]

Recently, a minor’s right to protest has come under the radar, with the Supreme Court’s prohibition of the entry of children in sites of agitation during the protests against the newly passed Citizenship Amendment Act, 2019, in the light of the death of an infant at Shaheen Bagh.[4] However, the Court failed to take cognisance of instances of police brutality against children that happened in the wake of the same protests.[5]

 In India, a person is defined as a minor if they are under the age of eighteen.[6] Such individuals are usually dependent on the care of their guardians. While the law needs to balance their rights and impose restrictions to further the interests of underage individuals, enforcing a blanket ban on participation in protest is an overreach. 

In this paper, in Part II, I try to trace the source of a minor’s inherent right to protest in international and domestic laws. In Part III, an attempt is made to analyze the reported concerns around a minor’s participation in protest and to counter them. Ultimately, in Part IV, a conclusion is presented with a comprehensive opinion.

Minor’s Right To Protest In International And Domestic Laws

Historically the Right to protest is not a given positive right, but one that can be interpreted through other human rights, most significantly the Rights to freedom of expression and right to peaceful assembly, that are guaranteed under International and Domestic laws.[7] In this part, I attempt to trace these sources.

A.            International Laws

India is a signatory to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (also known as the ‘Beijing Rules’).[8] Furthermore, it is also party to, and has ratified and adopted into her laws, the United Nations Convention on the Rights of the Child 1989 (‘UNCRC’).[9]

The UNCRC, in Article 5, asserts that States in legislating on matters relating to children must be cognisant of their “evolving capacities” while Article 12 provides that member states should assure to the child who is capable of forming his or her own views the right to express those views freely.[10] Hence, the child should be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative. Therefore, there can be no restriction on a child’s right to protest without hearing the child first.[11]Furthermore, Article 13 of UNCRC guarantees a child the right to freedom of expression and to freedom to seek knowledge and information through all means possible.[12] Protests and agitations are considered to be sites of varying opinions and source of acquiring knowledge and information.[13] Hence barring young adults from them seems to be in contravention of the rights conferred upon them.

Reading Article 13 along with Article 14 – Freedom of thought and conscience, and Article 15(1) – Freedom of Peaceful Assembly, it can be concluded that the rights of a child is similar to those of an adult and should not be obstructed in the garb of protecting their interests.[14] In fact, the Committee for the protection of the Rights of the Child (formed under UNCRC) in its report obliges member states to legislate on matters regarding minors in way that it is not in breach of any of these rights.[15]

According to the Guidelines on Freedom Peaceful Assembly, children, like any other citizen, have rights, and thus an interest to protect those rights and a duty to express their discontent and to contribute to the growth of the society.[16] It also purports that in case of detention of children, they should be separated from adults and special care should be taken for them,[17] and should not be met with any discrimination due to their age.[18] Along with this, the Beijing Rules imposes on member states the duty to look after a juvenile’s holistic development and to ensure their general well being so that they can live meaningful lives.[19] As noted earlier, protests can be sites of furthering important discourse and acquiring knowledge. Thus it would be against the spirit of a child’s development to restrict them from entering these spaces or putting criminal liability on them or their guardians if they decide to do so.[20]

In conclusion, it can be seen that a minor’s right to protest in well embedded and protected in the tenets of International Law.

B.             Domestic Laws

The Constitution of India guarantees certain Fundamental rights to all its citizens – regardless of age.  The most coveted of these – the Holy trinity – are the Right to Life,[21] Right to Equality,[22] and the Freedom to Speech and Expression.[23] Under the latter, it further asserts a positive right to its citizens to assemble peacefully[24] and to move freely through the territory of India.[25] The Apex Court has already clarified that the Right to protest is a citizen’s fundamental right and can be found under Part III of the Constitution.[26] This right can also be ascertained through the promised Right to education,[27] that guarantees all opportunities to learn and educate themselves to individuals between six and fourteen years of age,[28] as protest sites are a hub of growing knowledge and varying opinions.[29]

However, all Fundamental Rights are subject to reasonable restrictions under Articles 19(2) to 19(6) of the Constitution. The ‘Test of Reasonableness’, purported by the Supreme Court in Madras v. V.G.Row, ascertains that the test should not be a blanket ban but should be understood on a case to case basis, taking into account various factors.[30] In the matter concerning the right of minors to protest, an indiscriminate prohibition is against the ethos of the aforementioned test, as it fails to take into nuanced backgrounds and different opinions the youth of the society has to offer.[31] Not only does such prevention stand in contravention of their guaranteed rights, it cannot be justified as reasonable. Several underage young adults attend such protests on their own volition and use demonstrations as a source of expressing dissent.

The onus of protecting, defending and promoting child rights in India falls on a statutory body – The National Commission for Protection of Child Rights (‘NCPCR’).[32] In its guidelines for protection of children during civil unrest, NCPCR recognizes a child’s civil and political rights as absolute rights that cannot be curtailed by the State.[33] It should be further noted that instead of trying to restrict these rights, the State has a duty to make sure that minors in conflict with the law are treated with utmost care and are presented to a Juvenile justice board within twenty four hours.[34] In no situation must the child be put behind bars.[35] In fact, the arrest or detention of minors is considered to be a breach of the tenets of constitutional law.[36]

Thus, a minor’s right to protest and exercise their political rights is well grounded in Indian domestic laws.

Concerns Regarding Minors’ Participation In Protests

Minors are perceived as one of the weakest and most vulnerable sections of the society.[37] While such understanding is slowly changing with progress of various disciplines, it cannot be discounted that minors greatly differ from their adult counterparts and concerns regarding their well being should be addressed in a systematic manner rather than placing a blanket ban on their participation in events. In this part, I aim to identify and tackle some of these concerns.

A.   Threat To Physical Safety

In a situation of civil unrest, it is always a possibility that a benign demonstration, originally meant to be peaceful agitation, turns into a volatile situation.[38] This could be due to the State cracking down on the protesters or the latter turning into a violent mob. Under such circumstances, every participating individual is at an inescapable risk of physical harm. Children participating in such demonstrations are particularly at a more vulnerable position than adults due to their smaller stature.[39]

Furthermore, according to a UN report on Syria, there have been various documented events of security forces perpetuating violence on children as a means of de-motivating protesters.[40] In targeting the younglings of the community, they aim to subjugate the demands of the demonstrators.[41] Similar use of force by security forces has been seen by the police forces in India.[42] Instead of using violence on children as an excuse to limit their participation, it should be the State’s duty to hold accountable the ones who trigger, advocate or perpetuate such violence. It is both hypocritical and nonsensical to be using State-operated devices to propagate hostility, only to use that as an apparatus to eliminate young voices when they refuse to conform.

B.    Fear Of Manipulation

A commonly anticipated risk is that children may be manipulated for the purpose of protest. Some groups may find it useful to include children in order to increase the numbers participating in a protest. Children can and are used as tools to evoke emotions and to shock.[43]

The growing recognition that children may have views on various matters affecting them is recognized by Article 12 of the UNCRC and reflected in the increasing numbers initiatives supporting children to contribute their views in political matters, such as Youth conferences.[44] Not only minors, adults can also be manipulated by third parties to protest in their interests. Yet we do not seek to stop a major’s participation on this basis. It can be said that the argument of manipulation is a little overstated. Children, like adults, are influenced by various organizations as well as their communities and neighborhoods. They are constantly subjected to a plethora of events that have on them potential political and civic influences.[45]

Furthermore, it is can be said that adults have an ambivalent attitude toward the validity of the involvement of children in protests. Research on the involvement of the youth in protests against the Iraq war highlighted that the approval of the media of young people’s right to protest depended on the stance of the particular newspaper towards the war.[46]

However, there are instances where children simply cannot grasp the issues which are the subject of protest. For instance, a pre-pubescent child, who has no knowledge of their sexual autonomy, or lack thereof, should not be found at an abortion rally.[47] It must be considered a guardian’s duty to enlighten the child with all the information available before they can exercise their right to protest.

C.   Lack Of Maturity

Many adults, and the mechanism of law, seek to protect children from issues they consider matters of the ‘grown-up world’ due to the latter’s lack of maturity and to conserve their innocence. However, an important question to ponder upon is that who gets to decide the appropriate age before an individual is made of aware of the realities of the world and what should this age be? It seems particularly important to avoid setting a minimum age below which children should not attend protests because of the lack of attention children’s autonomy rights traditionally receive, primarily due to often mistaken assumptions that children will not, cannot, or should not exercise these rights. For many children the reality is very different, and they have both the desire and the ability to exercise such rights.[48]

The growth of modern technology has created a backdrop where children have easy access to information and are less unaware of local and global politics.[49] However, the value of participation as a learning experience during childhood and adolescence is gaining increased recognition.[50] Children will not become competent to participate in public life overnight once they reach the age of eighteen. Therefore, they should have opportunities to engage during their childhood years in order to learn how to do so.

Conclusion

Children possess the same right to protest as adults under a number of different international and domestic legal instruments. Many children are willing and able to exercise that right. There needs to be greater regard for the increasing involvement of children in protests. The issues about which recent protests have been held— for instance, citizenship in India—are such that they directly affect children. The technology now available to children has engaged them in protest and made for more widespread and effective movements. Nonetheless, the approach of authoritarian regimes toward children in protest has proven highly dangerous for children’s safety. Even in democratic set ups, increasingly repressive policing has led to hazards for children. Law needs to reequip itself to be used to achieve greater facilitation of children in effectively enjoying the right to protest.

The right of children to participate in matters affecting them has become increasingly recognized, but it needs to be acknowledged that children have as much to contribute to protest movements as adults. It will not be possible to facilitate the right of children to peaceful protest unless their special vulnerabilities are adequately acknowledged. The conceptualization of obligations in the international law lends itself to an interpretation of the implementation of children’s protest rights as requiring recognition of both children’s abilities and vulnerabilities. Until, such time that these vulnerabilities are not addressed, a child’s safety remains at threat, and prohibiting them from expressing their dissent will not solve that.


(The author is an undergraduate law student at NUJS, Kolkata. All views are personal)


[1] Dissent is the safety valve of democracy, says SC, LiveMint, (August 28, 2018) https://www.livemint.com/Politics/SiXRDqBThdK92lfR0CRyEP/Dissent-is-the-safety-valve-of-democracy-says-SC.html

[2] Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324 ; Jawaharlal Nehru University v. Geeta Kumari, President JNUSU & Ors, (2018) 252 DLT 328 ; The Government Of Tamil Nadu v. P. Ayyakannu, (2017) 4 Mad LJ 544; The right to protest in a free society, The Hindu(January 22, 2020) https://www.thehindu.com/opinion/op-ed/the-right-to-protest-in-a-free-society/article30618223.ece

[3] Protecting a child’s right to protest, The Hindu (February 2, 2020) https://www.thehindu.com/opinion/op-ed/protecting-childrens-right-to-protest/article30846374.ece

[4] Indian Supreme Court Arbitrarily Limits Children’s Right to Protest, Oxford Human Rights Hub , (May 28, 2020), available at https://ohrh.law.ox.ac.uk/indian-supreme-court-arbitrarily-limits-childrens-right-to-protest

[5] Id. UP Cops Beat Detained Children for Sleeping: Report, The Quint (February 10, 2020) https://www.thequint.com/news/india/cops-beat-minor-caa-protesters-for-sleeping; UP Police accused of stripping cleric, The Telegraph, (December 29, 2019) https://www.telegraphindia.com/india/uttar-pradesh-police-accused-of-stripping-cleric/cid/1731127

[6] The Indian Majority Act, No. 9 of 1875, §3(2).

[7] David Mead, The Right to Peaceful Protest under the European Convention on Human Rights, 4 Eur. J. Hum. R. L. 345 (2007).

[8] Vincent Walsh, Supreme Court on Children 419 (2001).

[9] India’s children would be better protected if UN treaty is properly implemented, Scroll.in, (February 23, 2016), https://scroll.in/article/804010/indias-children-would-be-better-protected-if-un-treaty-is-properly-implemented-report

[10] United Nations Commission on Human Rights, Convention on the Rights of the Child, E/CN.4/RES/1990/74 (November  20, 1989).

[11] Protecting a Child’s Right to protest, The Hindu(February 18, 2020), https://www.thehindu.com/opinion/op-ed/protecting-childrens-right-to-protest/article30846374.ece (Last visited on June 22, 2020).

[12] See UNCRC, Art. 12.

[13] Russell Dalton et al, The Individual-Institutional Nexus of Protest Behaviour, 40 Brit. Jour. of Pol. Sc. 51 (2010).

[14] Aoife Daly, A Commentary on the United Nations Convention on the Rights of the Child, Article 15 144 (2016).

[15]Id.,25

[16] Guidelines on Freedom of Peaceful Assembly (2007), Cl. 57.

[17] Id., Cl. 162.

[18] Guidelines, supra note 16, Cl. 2.5.

[19] United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), ¶ 1.2, A/RES/40/33 (1985).

[20] Don Cipriani, Children’s Rights and the Minimum Age of Criminal Responsibility: A Global Perspective 154 (2016).

[21] India Const. art 21.

[22] India Const. art 14.

[23] India Const. art 19(a)

[24] India Const. art 19 (b)

[25] India Const. art 19 (d)

[26] See note 2.

[27] India Const. art 21A.

[28] The Right of Children to Free and Compulsory Education Act, No. 35 of 2009, §3.

[29] Dalton supra note 13, 79.

[30] State of Madras v. V.G. Row, (1952) S.C.R 597

[31] Protecting children’s right to protest, The Hindu, (February 18, 2020) https://www.thehindu.com/opinion/op-ed/protecting-childrens-right-to-protest/article30846374.ece

[32] Commission for Protection of Child Rights Act, No.4 of 2006 §3.

[33] Protection of Children’s Rights in Areas of Civil Unrest (2013), Cl. 5.2.

[34] The Juvenile Justice (Care and Protection of Children) Act, No. 2 of 2016, §10 ; What does the law say about detention of minors?, The Hindu, December 29, 2019, https://www.thehindu.com/news/national/caa-protests-protecting-minors/article30421354.ece

[35] Id.

[36] Kedar Nath Singh v. State of Bihar, 1962 AIR 955 ; The Supreme Court Also Needs to Protect the Rights of Children Who Protest, The Wire, (February 11, 2020), https://thewire.in/rights/the-supreme-court-also-needs-to-protect-the-rights-of-children-who-protest

[37] John Eekelaar, The Interests of the Child and the Child’s Wishes: The Role of Dynamic Self Determinism, 8 Int. J. L. Pol’y & Fam. 42 (1994).

[38] George Floyd death: Why do some protests turn violent?, BBC, (May 31, 2020), https://www.bbc.com/news/world-us-canada-52869563  ) ; Violence rocks south Delhi during anti-citizenship law protest, The Economic Times, (December 15, 2019), https://economictimes.indiatimes.com/news/politics-and-nation/citizenship-act-protest-violence-arson-in-south-delhi-buses-torched/articleshow/72681998.cms?from=mdr ; Jallikattu protests turn violent across Tamil Nadu, The Hindu, (January 23, 2017), https://www.thehindu.com/news/national/tamil-nadu/Jallikattu-protests-turn-violent-across-Tamil-Nadu/article17083157.ece

[39] Philip Veerman & Hephzibah Levine, Peaceful Demonstrations, Child Soldiers or Child Martyrs? , 9 Int J. Child. Rts. 71 (2001).

[40] See United Nations Human Rights Council [UNHRC], Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, ¶33, U.N. Doc. A/HRC/S-17/2/Add.1 (2011).

[41] Geraldine Van Bueren, The International Law on the Rights of the Child 154 (1998).

[42] Jamia students’ protest was peaceful, violence started ‘after local residents entered university’, The Print, (December 15, 2019) https://theprint.in/india/jamia-students-protest-was-peaceful-violence-started-after-local-residents-entered-university/335768/

[43] Aoife Daly, Demonstrating Positive Obligations: Children’s Rights and Peaceful Protest in International Law, 45 George Washington Int. L. R. 20 (2013).

[44] Id, 13.

[45] Irene Bloemraad & Christine Trost, It’s a Family Affair: Intergenerational Mobilization in the Spring 2006 Protests, 52 Am. Behav. Sci. 507 (2008).

[46] Elizabeth Such et. al., Anti-War Children: Representation of Youth Protests against the Second Iraq War in the British National Press, 12 Childhood 302 (2005).

[47] Abortion Marchers Gather in Capital, The New York Times (April 9, 1989) https://www.nytimes.com/1989/04/09/us/abortion-marchers-gather-in-capital.html 

[48] Daly supra note 43, 7.

[49] Shelley Boulianne, Does Internet use Affect Engagement? , 26 Pol. Cm. 194 (2009).

[50] Roberta Bosisio, Children’s Right to be Heard: What Children Think, 20 Int. J. Child. R. 144 (2012).