The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has, in the Shaheen Bagh protests matter, held that while there exists the right to peaceful protest against legislation, 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 the 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.”
EVENTS LEADING TO THIS ORDER
The Citizenship (Amendment) Act, 2019 (CAA) was passed last year which seeks to grant citizenship to non-Muslim migrants belonging to Hindu, Sikh, Buddhist, Christian, Jain and Parsi communities who came to the country from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.
The passage of CAA led to nationwide protests calling the CAA and the National Register of Citizens discriminatory. A women-led protest 24/7 sit-in protest was also initiated in Shaheen Bagh, Delhi.
The Shaheen Bagh protest resulted in the closure of the Kalindi Kunj Shaheen Bagh stretch, including the Okhla underpass from 15.12.2019. It was submitted that the public roads could not be permitted to be encroached upon in this manner and, thus, a direction be issued to clear the same.
When the law enforcement authorities were control the protests and traffic, the Supreme Court opted for an ‘out of box’ solution and appointed Senior Advocate Sanjay R. Hegde and mediator trainer Sadhana Ramachandran as interlocutors.
The interlocutors made an appreciable effort and submitted a report on 24.02.2020 which highlighted that the nature of demands was very wide and that it did look difficult to find a middle path towards at least facilitating the opening of the blocked public way. The interlocutors did their best, but their efforts could not fructify into success, although the number of people at protest site had eventually diminished.
The second report suggested that
The views reflected in private conversations with the protestors were somewhat different from the public statements made to the media and to the protesting crowd in attendance.
While the women protestors had sat in protest inside the tent, there was a huge periphery comprising mainly of male protestors, volunteers and bystanders who all seemed to have a stake in the continuance of the blockade of the road.
It appeared that an absence of leadership guiding the protest and the presence of various groups of protesters had resulted in many influencers who were acting possibly at cross-purposes with each other.
Thus, the Shaheen Bagh protest perhaps no longer remained the sole and empowering voice of women, who also appeared to no longer have the ability to call off the protest themselves. There was also the possibility of the protestors not fully realising the ramifications of the pandemic, coupled with a general unwillingness to relocate to another site.
With the advent of COVID-19 Pandemic, greater wisdom prevailed over the protestors at the Shaheen Bagh site and the site was cleared. On this, the Court noticed
“Thus, really speaking, the reliefs in the present proceedings have worked themselves out.”
WHAT THE COURT SAID ON THE RIGHTS OF THE PROTESTERS
“India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy.”
The Court noticed that the Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. Article 19, one of the cornerstones of the Constitution of India, confers upon its citizens two treasured rights, i.e.,
the right to freedom of speech and expression under Article 19(1)(a)
the right to assemble peacefully without arms under Article 19(1)(b).
These rights, in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State. The same must be respected and encouraged by the State, for the strength of a democracy such as ours lies in the same.
These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the concerned police authorities in this regard.
“Each fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right. It was in this respect, that in this case, an attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters.”
Noticing that in this age of technology and the internet, social movements around the world have swiftly integrated digital connectivity into their toolkit; be it for organising, publicity or effective communication, the Court said that technology, however, in a near paradoxical manner, works to both empower digitally fuelled movements and at the same time, contributes to their apparent weaknesses.
“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; however, 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.”
The Court said that both these scenarios were witnessed in Shaheen Bagh, which started out as a protest against the Citizenship Amendment Act, 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 THE COURT SAID ON THE RESPONSIBILITIES OF THE LAW ENFORCEMENT AUTHORITIES
“The courts adjudicate the legality of the actions and are not meant to give a shoulder to the administration to fire their guns from.”
In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support therefrom for carrying out their administrative functions.
The Court noticed that in the present case, unfortunately, despite a lapse of a considerable period of time, there was neither any negotiations nor any action by the administration, thus warranting our intervention. It concluded with the following words:
“We only hope that such a situation does not arise in the future and protests are subject to the legal position as enunciated above, with some sympathy and dialogue, but are not permitted to get out of hand.”