The Supreme Court has recently ruled against the protests at Shaheen Bagh by stating that the right to protest in a public place is not absolute and public places cannot be indefinitely occupied by such protests. While the protest ended in March, the verdict was given in October. This verdict is criticised for the apex court’s indifference towards the government’s ignorance of the voices of the people, which is the reason behind such lasting protest.
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- The Shaheen Bagh protest was a sit-in peaceful protest that came in response to the passage of the Citizenship (Amendment) Act on December 11, 2019, and the ensuing police intervention against students at Jamia Millia Islamia, who were opposing the amendment.
- The set-in started from 15th December 2019 and was cleared over 100 days later on 23rd March in view of the COVID-19 pandemic.
- These long protests have created road blockade.
- A petition was filed in this regard, seeking the removal of the protesters to end the blockade.
What are the key highlights of the SC verdict on right to protests?
- Dissent and democracy go hand in hand. However, it comes with an obligation towards certain duties.
- Right to peaceful protest is a constitutional right and has to be respected.
- This does not legitimise demonstrators adopting all means and modes to protest as was done during the colonial rule while struggling for independence.
- Social media platforms are used to create highly polarised situations like the Shaheen Bagh Protests.
- Protests must be carried out in the designated areas.
- Occupation of public spaces or roads by demonstrators, which causes inconvenience to a large number of people and violate their rights, is not permissible under law. Authorities must remove blockades.
- The way in which occupants should be cleared from public places is to be decided by the administration and they should not wait for the court’s orders to carry out their functions.
- This does not mean that the SC suggested a blanket ban on the occupation of public areas. Rather, it reflected exclusively on the nature of Shaheen Bagh Protests alone.
What are the past judgements related to the right to protest?
Himat Lal Case:
- In 1972, a 5-judge constitution bench of the SC held that citizens cannot exercise their freedom to assemble peacefully wherever they please.
- However, the government cannot by law abridge or take away the right to assemble by prohibiting assembly on every public street or public places.
- The government can only make regulations that assist in the right to assembly of each citizen and can only impose reasonable restrictions in the interest of public order.
- This means that the right to assemble on the public spaces could be subject to a reasonable restriction in the interest of public order.
Mazdoor Kisan Sanghatan vs. Union of India:
- In this case, the top court dealt with the challenge to the Rules framed under the Bombay Police Act regulating public meetings on streets.
- It held that the government has the power to regulate, which includes the prohibition of public meetings on streets or highways to prevent disruptions.
- This does not mean that the government can close all streets or open areas for public meetings, which may violate Article 19.
- The government, however, is permitted to make regulations in aid of the right to assembly of each citizen and can only impose reasonable restrictions in the interest of public order.
- It this case, the Madras High Court held that:
- Protesters who claim to espouse the cause of the public often forget that their right to protest ends when other person’s right to free movement and ‘right to not listen to’
- A citizen has no fundamental right to insist that his speech should be heard by an unwilling citizen.
- A person must not be compelled to witness a procession against his wishes.
Amit Sahni vs. Commissioner of Police:
- The apex court held that the public ways and roads are not the places where protests should be carried out as they cause hardships to the general public.
- The fundamental right to protest should not be utilised in a manner that would render the rights of other people subservient to the rights of the protesters.
Anita Thakur & Others vs. the State of J&K
- A significant feature of a democracy is the space offered for legitimate dissent.
- However, the right to peaceful protest, like any other fundamental right, is not absolute in nature and can be restricted on the ground of violation of sovereignty and integrity of the nation and public safety.
As per these aforementioned rulings and principles, the right to protests, even if non-violent and peaceful, must be legitimately restricted to protect the interests of people who are not involved in the protests. While the right to protest and dissent is given, the right to obstruct is not granted by the Indian constitution.
What does the Indian Constitution say about the right to protest?
- Subclauses (a) to (c) of Article 19(1) provides for:
- Freedom of speech and expression
- Freedom to assemble peacefully without arms
- Freedom to form association or unions
- These allow people to express dissent and have different points of views
- The right to disagree, the right to dissent and the right to make another point of view is inherently granted to all citizens of the country by these provisions.
- Clause 2 of Article 19 imposes a reasonable restriction on the right to assemble peacefully and without arms and to freedom of speech and expression as none of these rights is absolute.
- The reasonable restrictions are imposed to safeguard the sovereignty integrity and security of India, friendly relations with other countries, public order, decency or morality or in relation to contempt of court or defamation.
- As per Article 51A, it is the fundamental duty for every person to safeguard public property and to avoid violence during the protests.
- Resorting to violence during public protests results in infringement of key fundamental duty of citizens.
What do international laws say about protests?
- The right to freedom of assembly is provided under Article 20 of the Universal Declaration of Human Rights (UDHR) and Articles 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR).
- The Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association, which works independently to inform and advice the UNHRC, noted in 2016 that the aforementioned rights include the right to use public spaces for protests.
- However, like in the cases of SC verdicts, it also does not allow the right to protest to be absolute in a bid to safeguard the rights of movement of vehicles and pedestrian traffic.
- Any restrictions on the rights in the ICCPR must be “proportionate to the pursuance of the legitimate aims”.
- Legitimate aim that the SC identified in the Shaheen Bagh protest case is the protection of freedom of commuters.
- In this context, it is also relevant to note the Security Council Resolution that emphasised the importance of a State ensuring the reliability of its critical infrastructure.
- The EU defined critical infrastructure as an asset or a system that is essential for the maintenance of vital social functions, health, safety, security, economic or social well-being of people.
- Roads and transportations form an essential part of a state’s critical infrastructure.
- Thus, under international law, the states have to ensure that there is no disproportionate blockade of its transportation systems.
What are the arguments for this judgement?
- The SC verdict against road blockades by the protesters is necessary as they are against humanity.
- Such blockades may act as a hindrance to the public at large, like for ambulances, those appearing for courts or interviews etc.
- It also creates difficulties for shopkeepers, elderly, women and children.
- Thus, any protest should not be at the cost of inconvenience and discomfort to the civil society.
- This verdict comes at a time when instances of misuse of public places are increasing across the country.
- The court has reiterated the right to protest is a fundamental right, but it must be exercised by not disrupting the peace of the general public.
- Thus, the verdict ensures that the rights of protesters as well as that of commuters are protected.
What are the issues with this judgement?
Expanding the power of the executive:
- The SC judgement on Shaheen Bagh protest case upholds the right to protest as a fundamental right of speech and assembly.
- At the same time, it shakes the foundation of this fundamental right by laying a highly contentious proposition that once the right to protest is denied, the protester must willingly accept the denial or run the risk of contributory negligence to fundamental duty.
- The recent SC verdict provides scope for the government authorities to decide and specify where public assemblies must take place.
- Such restrictions on the use of public spaces may unreasonably impede people from exercising their right to assemble or prevent them from protesting within ‘sight and sound’ of their target audience.
- This may make future protests less effective.
- The court held that the fundamental right to protest should be subject to “regulation by the concerned authorities”.
- This requires examination of whether the regulations were being applied fairly and constitutionally as per the Court’s jurisprudence on what amounts to a reasonable restriction.
Criticising social media:
- The SC, while hearing the Shaheen Bagh protest case, pointed out the social media platforms’ contribution to the highly polarised environment.
- There is no clear evidence for the relevance of this observation against the right to protest.
- By providing observation on social media, the apex court has invited overzealous government authorities to step up their already evident attempts to criminalise free speech on social media and digital media.
Comparison with colonial-era dissent:
- The SC observed that the erstwhile mode and manner of dissent against the colonial rule should not be equated with dissent in the self-ruled democracy.
- This verdict is based on the assumption that a democratic system functions justly to all persons and communities at all times.
- While it may be true in the theoretical sense, not many are provided justice in the real world unless their voices are heard by the overall public.
- The Shaheen Bagh protests happened in a questionable manner because there were instances of police fully denying permissions for protests and marches against the CAA and detaining persons who did not gather or march in protest.
- The government failed to follow a pre-legislative consultative process and did not take efforts to engage with those dissenting against its legislative policies.
- The verdict banning public protests against such instances overlooks particular facts and circumstances that plague India’s social and political landscape.
Deviation from precedents:
- The past judgements of Himat Lal and Mazdoor Kisan Shakti Sanghatan cases, on which the recent verdict relies on, do not support a blanket ban on protests in public spaces.
- Both of these cases emphasis on the need for the executive authorities to ensure that the permission to protest is not denied arbitrarily, especially based on the content of the protest.
- In the present case, the top court, while holding that protests must take place in a designated area, did not take into account the observations made in the Mazdoor Kisan Shakti Sanghatan.
- In the past case, the court opined that the designated spots are far from corners of power.
- In the current case, the apex court missed the opportunity to further engage with the issue of absence of sufficient spaces to protest in the capital.
- The Supreme Court, under Article 19, has consistently distinguished between the matters of ‘law and order‘ and ‘public order‘, with latter being understood requiring a higher threshold to activate.
- The court fails to identify the aspects that find the nature and extent of inconvenience caused by these protests.
- Thus, inconvenience cannot be exalted to a threat to public order.
- It failed to elaborate on what attributes to a “grave” inconvenience and did not examine whether the commuters had any alternate routes available or the number of the commuters being affected by the road closures.
- It also did not examine whether the roads blocked by the Delhi police were needed to be closed.
- The connection between the Shaheen Bagh protests and the inconvenience to the commuters has been assumed without any prior investigations or factual foundations.
- While the SC has laid down the norms regulating the expression of dissent and protest, it failed to deliberate on the government’s role in identifying such designated places.
- It does not answer whether the state has unlimited discretion in specifying the designated areas for protesting.
- The original petition only dealt with the issue of road blockades caused by the Shaheen Bagh protests.
- However, in its interim order, the Supreme Court generalised the issue and expressed concern about the form of protests taking place in the national capital.
- The right to peacefully assemble is subject to a reasonable restriction on grounds of sovereignty and integrity of India and public order.
- Reasonable restrictions are prescribed by the legislature or the executive.
- The judiciary role here is to examine the constitutional permissibility of such restrictions. Its power does not include prescribing the restrictions.
- However, in the recent verdict, the judiciary has precisely done that, especially after the core dispute ceased to exist.
What is the way forward?
- The right to peacefully assemble without arms is a fundamental right provided by the Indian Constitution.
- Peaceful protests ensure that democracy survives and thrives even during challenging times.
- Though vital, protests must be subjected to certain safeguards.
- The government, while safeguarding the general public from violent protests, must not subject protests to a blanket ban.
- Rights of the protesters should be balanced against the rights of those facing inconvenience.
- Thus, government policies and laws must accommodate all perspectives and interests so as to limit the inconvenience and dissent.
- Protests, as long as they are peaceful and not threatening public order, must not be restricted only to designated areas.
- Though roadblocks by protesters over an indefinite period of time is an unacceptable impediment to freedom of movement, it should not be grounds to prevent any such protests from taking place right from the start.
- While the state should ensure that the fundamental rights of the protesters are not unreasonably restricted, this should also include making suitable arrangements for the general public so that they are not facing inconvenience.
- The interests of the public and protesting citizens must be effectively managed and protected.
Protesting against injustice is not only a fundamental right but also a moral duty. This right is one of the core principles based on which the Indian democracy function. Though it is not absolute and is subjected to reasonable restrictions, it should not be arbitrarily banned by the government authorities. Rather, the government must ensure that all these protests are regulated and the voices of the protesters are heard without anyone getting hurt.
Practice question for mains:
Discuss the constitutional provisions related to the right to protest. How do they balance the right of protesters with that of those not involved? (250 words)