Supreme Court’s Shaheen Bagh Judgment Will Lead to Fresh Curbs on Right of Peaceful Protest

With its questionable reasoning, the judgment may strengthen the authoritarian streak of the current dispensation. 

New Delhi: Shaheen Bagh-type protests are not acceptable and the administration ought to take action to keep such areas clear of any encroachments or obstructions by citizens protesting. So says the Supreme Court in Amit Sahni v Commissioner of Police & Others. 

The bench of Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari appreciated the right to peaceful protest against a legislation, but made it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely.  

“Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.  The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest,” the bench held. 

Also Read: Shaheen Bagh Protest: SC Says Public Places Cannot Be Occupied Indefinitely

What was blocked, and by whom?

However, the judgment is silent on the factual basis of the bench’s assertion that the protesters blocked the public way, causing grave inconvenience to commuters.  

We do not know whether the bench said this based on its assumptions, or based on the report of the two interlocutors whom it appointed. As the bench has not made the report public, we do not know whether the interlocutors – Sadhana Ramachandran and Sanjay R. Hegde – reached a similar conclusion. Asked for his response, Hegde told The Wire: “I refuse to comment since the court had appointed me an interlocutor. Sadhana and I were required to do a job and we did it to the best of our abilities, in the given situation.”

So a conclusion which, on the surface, is based on contested facts – as the protesters had accused the police of exacerbating the traffic situation by gratuitously closing off approach roads – has led the bench to deprive citizens of one of their most cherished fundamental rights, guaranteed by the constitution.  The rights under Articles 19(1)(a) and (b) – freedom of expression and the freedom to assemble peacefully – can be restricted, as the bench concedes, only reasonably, on the ground of public order.

Women during a demonstration against CAA, NRC and NPR at Shaheen Bagh in New Delhi. Photo: PTI/Files

Ignoring other forms of inconvenience to commuters 

Can the imagined inconvenience to commuters be a “reasonable” restriction on the rights guaranteed under the constitution? After all, in a city like Delhi, commuters are inconvenienced all the time due to one reason or the other – whether it is VVIP movements, or ongoing construction activity for the Delhi Metro, for instance. Can these be declared illegal as well because of the inconvenience they cause to commuters? 

International democratic standards recognise that there should be a presumption that using public spaces for protests purposes is as legitimate (if not more so) as other uses of the same spaces for a “reasonable period”.   

The European Court of Human Rights recognised a “certain degree of tolerance” towards disruption to ordinary life caused by demonstrations “if the freedom of assembly is not to be deprived of all substance”. Disproportionate restrictions to protest, in particular in cases of groups that have no other way to express themselves publicly, seriously jeopardise the right to freedom of expression.

The term “public order” used in Article 19(2) as a legitimate ground of restriction can be reasonable only when there is evidence that protesters will incite lawless or disorderly acts and that such acts are likely to occur. Ironically, the bench does not even make a pretence to show that its restrictions on protests at a public place, ostensibly to avoid inconvenience to commuters, satisfies the “public order” test under Article 19(2). 

Freedom of assembly is bound to collide with competing rights, such as the right to freedom of movement. Protests may cause a certain level of disruption to ordinary life and encounter hostility. Protesters can block roads, occupy public spaces, and cause disturbance, annoyance or even harm that states may find it necessary to prevent or repair. Nevertheless, the right to freedom of peaceful assembly, freedom of expression and freedom of association, are considered indispensable in a democratic society, and states are expected to accord due weight to their importance. The right to freedom of expression and assembly is not just another right, but one of the primary and most important foundations of any democratic structure. The undermining of freedom of expression directly affects the central nerve of the democratic system. The courts, being part of the state, cannot be oblivious of their duty to safeguard this right. 

Accordingly, human rights bodies have interpreted narrowly the circumstances in which restrictions are permissible, that is, “necessary in a democratic society”. The European Court of Human Rights has said that the term “necessary in a democratic society” implies “pluralism, tolerance and broadmindedness’.  [Castells v Spain, judgment, April 23, 1992]. 

The framers of India’s constitution envisaged that the enjoyment of these rights should be ‘practical and effective’, not theoretical or illusory. Political and social participation through public demonstration is critical to the consolidation of democratic life. Such participation, as an exercise of freedom of expression and freedom of assembly, contains a keen social interest, which leaves the state very narrow margins for justifying restrictions on this right.  

An unreasonable restriction, such as the one the Supreme Court has sought to impose on Wednesday, may have the effect of preventing people from exercising their right to assemble. Laws and judgments of the courts should not specify where public assemblies must occur, or compel organisers to meet only where the authorities want. The restrictions on the use of public spaces should not unreasonably impede people from exercising their right to assemble or prevent them from protesting within ‘sight and sound’ of their target audience. 

Also Read: Is It a Crime To Peacefully Protest Against the Government’s Policies?

Non-sequiturs inviting further restrictions

According to the bench, the Shaheen Bagh protests against the Citizenship (Amendment) Act (CAA) gained momentum across cities to become a movement of solidarity for the women and their cause, but came with its fair share of chinks, as has been opined by the interlocutors, and caused inconvenience of commuters. 

What are the chinks which the bench is alluding to here? “The ability to scale up quickly, for example, using digital infrastructure has empowered movements to embrace their often-leaderless aspirations and evade usual restrictions of censorship,” the bench acknowledges. However, the bench points out that the flip side to this is that social media channels are often fraught with danger and can lead to the creation of highly polarised environments, which often see parallel conversations running with no constructive outcome evident.   

Both these scenarios were witnessed in Shaheen Bagh, the bench says, though it is not clear what the relevance of this observation is to the question of the right of assembly. Does the bench suggest that because social media channels are fraught with such danger, the right to assemble peaceably and the right to freedom of expression can be reasonably restricted? By leaving its observation on social media hanging in the air, the bench has effectively invited overzealous police officers to step up their already evident attempts to criminalise free speech on social and digital media.

Ziya Us Salam, who recently co-authored with Uzma Ausaf, the book, Shaheen Bagh: From a Protest to a Movement  had this to say about the judgment:

“The court has not considered whether there are any authorised sites available for protest. After all, if women from Gaya or Tonk need to protest, what are the options available to them? Similarly, the court is silent on the number of protesters. What the court calls a leaderless protest is an example of grassroots democracy. The court seems to think Delhi is India. There were scores of Shaheen Baghs across the country. The court should know that if something like the CAA impacts the fundamental nature of the Constitution, it will invite more protesters. In Shaheen Bagh, there was no blockade of all routes. Just one arterial road was blocked. Two remained open. By this logic, we can say goodbye to Gandhian satyagraha. The interlocutors talked of arterial roads. One would expect the court to take a panoramic view.”

Women protest at Shaheen Bagh. Photo: PTI

When will Supreme Court hear CAA, Kashmir petitions?

Surprisingly, the court, while blaming the authorities for hiding behind court orders without carrying out their administrative functions, has no answer for why it has not found time to hear the scores of petitions filed to challenge the CAA. The protesters had to plan prolonged endless protests in public only because the Supreme Court did not hear the case quickly and dispose of it one way or the other.   

The omission is all the more glaring given the manner in which the judgment declares grandiosely in its opening paragraphs:

“One of the bedrocks of the Constitution of India is the separation of powers between the Legislature, the Executive and the Judiciary. It is the function of the Legislature to legislate, of the Executive to implement the legislation, and of the Judiciary to test the constitutional validity of the legislation, if a challenge is so laid.” (emphasis added)

A challenge was laid to the CAA more than eight months ago, but the judiciary in India is in not hurry to “test the constitutional validity of the legislation”.

The court laments the fact that a considerable period of time has lapsed, and yet the administration has not found merits in negotiating with the protesters or taking suitable action. If the failure of mediation has, in the words of the court, led to its adjudication of the dispute, should it not apply to the larger question of the validity of the CAA itself?   

Perhaps the court’s judgment in this case might make it introspect on the likely consequences of its inordinate delay in hearing the challenges to the Centre’s abrogation of Jammu and Kashmir’s special status too. At least, the protesters at Shaheen Bagh could exercise their right till the court said they could not, or in its own words, till the “hand of God” subsequently intervened with India and the world grappling with the coronavirus pandemic. The people of Jammu and Kashmir can’t even dream of exercising their right to protest, let alone protest at an authorised public place, in conformity with the court’s judgment on Wednesday.

A Srinagar street wears a deserted look at Lal Chowk as seen on Eid al-Adha. Photo: PTI

An executive court

If any proof is required to show that India’s Supreme Court judges have become more executive-minded than the executive itself, the judgment in Amit Sahni will suffice. When the government or the police didn’t even ask for such a restriction on the fundamental right of citizens, the Supreme Court felt no compunctions in imposing it.

One can understand if the Supreme Court had to balance the fundamental rights to express and freely assemble with another valuable fundamental right, such as the right to life and liberty. But the court does not even claim that the right to commute without inconvenience is such a right to which the fundamental right to expression and peaceable assembly should yield.

Also Read: How Rightwing Media Outlets’ Obsession with Shaheen Bagh Led to False Reporting

The bench’s observation that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy makes one wonder whether the bench was suffering from some sort of amnesia about India’s outstanding 70-year journey as a democracy. The distinction between dissent against colonial rule and dissent in a self-ruled democracy would have made some sense – even though debatable – if that remark was made some 70 years ago.

But then people of India have expressed their dissent in innumerable ways since then – learning from their experience during the colonial era and after – and made Indian democracy resilient when countries in its neighbourhood have abandoned their democratic experiments several times precisely because they could not guarantee sufficient space for expression of dissent.

It is not clear how the court thinks peaceful protests could be any different – whether during the colonial era or after independence. The bench, while reminding the protesters of their duties, does not refer to any specific duties which they had neglected.