On August 9, 2024, on the eve of India’s Independence Day, the nation woke up to the news of a horrific rape and murder of a junior doctor, who was resting after a 36-hour shift in the seminar hall of R.G. Kar Medical College and Hospital in the Indian state of West Bengal. What followed was an extensive cover-up of the crime by the management of the hospital as well as the authorities – beginning with the claims that the doctor had committed ‘suicide’ and culminating in the vandalism of the hospital by a mob of miscreants, in an alleged attempt to destroy evidence. Outraged by the crime and the high-handed approach of the authorities, doctors and healthcare workers went on a nationwide strike demanding action from the authorities.  While the Supreme Court of India has historically recognized the right to protest for citizens, it has attempted to carve out an exception by denying the health-care workers their right to protest, thereby creating a separate class of protestors which is in the teeth of its judicial precedents.

The Supreme Court of India stepped in by taking suo-moto cognizance of the crime and constituted a 10-member national task force to suggest reform for the safety of the health professionals. While the slew of directions issued by the Supreme Court seemed to instil confidence in the community, the Chief Justice of India went on to remark that the doctors who were protesting the gruesome crime were expected to stop protesting and return to the hospitals. Pertinently, the Chief Justice observed that ’Justice and Medicine cannot go on strike.’ He further went on to suggest that protection will be offered to the doctors only when the strike is called off. The remarks had their intended chilling effect as Associations of Doctors called off their 11-day strike. Even as doctors in the city of Kolkata, where the horrific crime had occurred, continued their protest, the Supreme Court issued an ultimatum to the doctors to either return to work by 5 PM of September 10, 2024 or face ‘adverse action’ for their protest. In a surprisingly strong observation, the court cautioned that it would not be able to ‘restrain the State from taking action’ against the doctors. The observations of the Supreme Court highlight the changing discourse around the right to protest, and raises questions as to whether the Apex Court views medical and legal professionals as constituting a separate sub-class of citizens on whom the Fundamental Right of Freedom of Speech and Expression will have a restricted application.

Over the years, the Courts have not only upheld the right to protest but have also gone on to hold that ‘the State must aid the right of assembly of the citizens’, as observed by the Supreme Court in Mazdoor Kisan Shakti Sanghatan v Union Of India [51]. However, the recent judgments of the Supreme Court highlight a judicial shift in its approach as it begins upholding reasonable restrictions imposed to curtail the right to protest. Recently, in the case of Amit Sahni v Commissioner of Police & Ors., the Supreme Court held that ‘public ways’ and ‘public spaces’ cannot be occupied indefinitely and directed that the administration should keep public spaces free of such ‘encroachments’ [17]. Even so, the discourse has mainly centred around the physical places of protest where areas designated as ‘public spaces’ are restricted from being occupied by the protestors. However, the observations made by the Chief Justice in the R.G. Kar Medical College and Hospital case creates a horizontal sub-class among citizens wherein professionals such as doctors have a restricted right to protest as they exercise a public duty.

An interesting precedent against classification of protestors can be traced back to the Supreme Court’s judgment in Kameshwar Prasad and Others v. the State of Bihar which had struck down a piece of legislation that prohibited government servants from participating in demonstrations and carrying out strikes, and had observed that the Fundamental Right to Freedom of Speech and Expression is available to all citizens.

The attempt to create a sub-class of professionals who have a curtailed right to protest is liable to fail the threshold laid down by the Supreme Court which prohibits discrimination against a class or a section of citizens. The observations made by the Hon’ble Chief Justice may have been well-intentioned to ensure that medical services are resumed for the public. However, it takes the discourse around the right to protest into uncharted territory.