The Supreme Court on February 10, through Justices Sanjay Kishan Kaul and K.M. Joseph passed a remark while hearing a petition challenging the Shaheen Bagh protests. The Court is reported to have remarked that protesters cannot block the public roads and cause “inconvenience” to the general public. Further the Bench is also reported to have added orally that “You cannot block the public roads. There cannot be indefinite period of protest in such an area. If you want to protest, it has to be in an area identified for protest.”
The court said that people were entitled to protest, but the protest cannot be an indefinite one if it is in a public area. It went on to say that an indefinite protest must be in “an area identified for protest”. However, it refused to pass any interim order to evict the protesters and has fixed the next hearing for February 17.
The court was dealing with petitions filed by Advocate Amit Sahni and another petition filed by Nand Kishore Garg. Both the petitions sought the immediate clearing of the Shaheen Bagh protest on the ground that it caused inconvenience to general public since traffic was blocked by the women protesting on the road. The plea sought an answer from the court asking if people had unrestricted right to protest under Article 19 of the Constitution while violating other persons’ right to have a thoroughfare. “There is no quarrel with the proposition that everyone has a right to protest but the same is subject to reasonable restrictions, which can be imposed looking at the larger public interest,” the petition read. While the petition stated that the protest is causing inconvenience to residents, children, patients, the protest gathering is also reported to have made way for school buses and ambulances.
The petition, coming as it did just before Delhi state went to the polls could also be viewed as an effort to use the court in what has essentially become a people’s resistance against an obdurate government. High level functionaries of the ruling party at the Centre have used the identity of the Shaheen Bagh protesters to whip up sentiments against the Muslim minority quite blatantly.
At the hearing of the same petition, the court also took cognizance of a letter by a 12-yr-old National bravery award winner following the death of a 4-month-old infant allegedly due to exposure to cold as he was taken to the venue of the anti-CAA protests at Shaheen Bagh. A counsel appearing on behalf of some mothers from Shaheen Bagh said as per UN convention ratified by India, children have a right to protest. To this, CJI SA Bobde asked “a four-month-old went for protest? How can mothers support this!”
The Chief Justice was surprised on how a mother can take a 4-month-old for a protest. The Court however has chosen not to act against the Karnataka police galling up school children for sedition (!!!) when they were protesting a play against the controversial CAA 2019.
The Court’s observations obviously do not match the spirit of the protesting women at Shaheen Bagh, who have been on a peaceful and indefinite sit-in protest for close to 2 months, since the violent attack on Jamia students by Delhi Police, on suspicion of arsonists being among the crowd of protesting students. The protesters at Shaheen Bagh first took to this form of resistance after the brute attack by the Delhi police on Jamia Milia Islamia on December 15. Since then, the protesters have been articulate in that the CAA 2019, the pan-India NRC and it’s precursor, the NPR to be rolled back by the Government.
With the case slated for hearing next Monday, we take a look at the history of the Supreme Court jurisprudence in dealing with public protests, adjudicating between the rights of protesters and the interest of the State/general public for preservation of ‘law and order’.
In Mazdoor Kisan Shakti Sanghatan vs Union of India on July 23, 2018, the Supreme Court has spoken through Justice Bhushan and Justice Sikri holding peaceful demonstrations by the citizenry in order to air its grievances and to ensure that these grievances are heard in the relevant quarters, is a fundamental right. This right is specifically enshrined under Article 19 (1) (a) and 19 (1) (b) of the Constitution of India. Article 19 (1) (a) confers a very valuable right on the citizens, namely, right of free speech. Likewise, Article 19 (1) (b) gives right to assemble peacefully and without arms.
Together, both these rights ensure that the people of this country have right to assemble peacefully and protest against any of the actions or the decisions taken by the Government or other governmental authorities which are not to the liking. Legitimate dissent is a distinguishable feature of any democracy. The question is not as to whether the issue raised by the protestors is ‘right or wrong’ or “justified or unjustified’. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances. Dissenters may be in minority. They have a right to express their views. A particular cause which, in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. That is the reason that this Court has always protected the valuable right of peaceful and orderly demonstrations and protests.
The Supreme Court has also gone beyond upholding the right to protest as a fundamental right and has held that the State must aid the right to assembly of the citizens. In the Constitution Bench Judgment, Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, while dealing with the challenge to the Rules framed under the Bombay Police Act regulating public meetings on streets, held that the Government has power to regulate which includes prohibition of public meetings on streets 9 (1962) Supp 3 SCR 369 10 (1973) 1 SCC 227 or highways to avoid nuisance or disruption to traffic and thus, it can provide a public meeting on roads, but it does not mean that the government can close all the streets or open areas for public meetings, thus denying the fundamental right which flows from Article 19(1)(a) and (b). The Court held:
“33. This is true but nevertheless the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order.”
Public meeting in open spaces and public streets forms part of the tradition of politics and citizens action in our national life. In pre- Independence days such meetings have been held in open spaces and public streets. Social issues and political opposition have been voiced at these meetings. By curtailing access to these spaces for protest, the state and local authorities have begun to exercise a virtual monopoly of control on every open space at which an outdoor meeting can be held. If, therefore, the state government or municipality can constitutionally close both its streets and its parks entirely to public meetings, the practical result would be that it would be impossible to hold any open-air meetings in any large city. The real problem is that of reconciling the city’s function of providing for the exigencies of traffic in its streets and for the recreation of the public in its parks, with its other obligations, of providing adequate places for public discussion in order to safeguard the guaranteed right of public assembly. The assumption is that a city owns its parks and highways in the same sense and with the same rights as a private owner owns his property with the right to exclude or admit anyone he pleases. That may not accord with the concept of dedication of public streets and parks.
Streets and public parks exist primarily for other purposes and social interest promoted by untrammelled exercise of freedom of utterance and assembly in a public street must yield to social interest which prohibition and regulation of speech are designed to protect. However there is a constitutional difference between reasonable regulation and arbitrary exclusion.
In the case of the famed Ramlila Maidan Incident (Ramlila Maidan Incident Dt.4/5.06.2011 v. Home Secretary, Union Of India & Ors.), the Court observed that the right to assembly and peaceful agitations were basic features of a democratic system and the Government should encourage exercise of these rights:
“245. Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance. The Government has to respect and, in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of the right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions.”
In the present case at hand, that of Shaheen Bagh, the protest being an indefinite, 24 X 7 protest and one that is causing inconvenience to the general public, the rights of the protesters will or should be balanced against the rights of those facing the inconvenience. The Shaheen Bagh protest already meets certain pre-requisites: i.e., being peaceful, unarmed, and non-violent.
This `balancing of interests’ approach is basically derived from Roscoe Pound’s theories of social engineering. Pound had espoused this theory of the structure of public, social and individual interests which are all, in fact, individual interests looked at from different points of view or perspectives. Therefore, in order to make the system work properly, it is essential that when interests are balanced, all claims must be translated and brought to the same level and carefully labelled. Thus, a social interest may not be balanced against individual interest, but only against another social interest. The author points out that throughout the heyday of the clear-and-present-danger and preferred position doctrines, the language of balancing, weighing or accommodating interests was employed as an integral part of the libertarian position. [Freedom of Speech: The Supreme Court and Judicial Review, by Martin Shapiro, 1966]. Significantly, it has been held in the above case of Mazdoor Kisan Shakti Sanghatan that the government or the police cannot perpetually declare an area as a prohibited site for peaceful protests or gatherings.
The idea that the citizens must have requisite permission for a peaceful protest is itself derogatory to the extent of freedoms promised to the citizen by the constitution. Protests are not performances or shows, they need to be an eminent display of dissent and an assertion of rights of citizens. Thus, it is imperative that the permission sought from the authorities by any group of citizens must be given as a rule, unless there exist some exigent circumstances. The purpose of the permission is mere regulation, and for the information of the police as to the number of people gathering, their route and timings etc, in order to effectively manage movement for general public as well as the protesters.
In the case of Ramleela Maidan incident, the apex court said that no person can be divested of his fundamental rights. They are incapable of being taken away or abridged. All that the State can do, by exercise of its legislative power, is to regulate these rights by imposition of reasonable restrictions on them. Upon an analysis of the law, the following tests emerge:
a) The restriction can be imposed only by or under the authority of law. It cannot be imposed by exercise of executive power without any law to back it up.
b) Each restriction must be reasonable.
c) A restriction must be related to the purpose mentioned in Article 19(2).
If that was the principle then, what will the standards that will be applied when the Court looks at –in the present case –the general public being inconvenienced by the Shaheen Bagh? While the State must ensure that the protesters’ fundamental rights are not unreasonably restricted, (and the subject of law and order is normally under the state’s jurisdiction, though in Delhi, the police is controlled by the Ministry of Home Affairs), this should include also making suitable arrangements for the general public. Public and protesting citizens, the interests of both groups need to be effectively managed and protected. The State cannot only coerce the protesters to go away or end their protest, albeit it may make calculated administrative provisions for the general public so that the inconvenience caused is as minimal as possible.
Hence the final pronouncement of the Supreme Court is awaited with concern. The preliminary observations on the Shaheen Bagh protests, to the effect that, “There cannot be any indefinite protests in common public areas. If people start protesting everywhere, what will happen?” has raised alarm and concern given the history of the institution’s track record which has been fairly precise and liberal in the balancing act between interests of the protesters and the State.
The Supreme Court Orders may be read here: