Right to Protest v. Right to Mobility: The Shaheen Bagh Case

Recently, the Supreme Court answered a much-disputed question of drawing the balance between the right to protest and the protection of people’s public rights through its judgment in Amit Sahni v. Commissioner of Police and Ors. Although, the judgment came as a response to the Shaheen Bagh protests in Delhi against the Citizenship (Amendment) Act, 2019, yet its importance directly relates to the maintaining of an effective relationship between democracy and dissent. In this post, we will explore the events and responses of the Courts and the members of the concerned community that finally led to this judgment.

Background

The enactment of the Citizenship (Amendment) Act, 2019 (“CAA”) garnered huge protests and agitations from the people in many parts of the country. The intensity of such protests increased further after the ensuing police intervention against students who were opposing the CAA at Jamia Millia Islamia University (“JMI”). This resulted in the commencement of one of the strongest anti-CAA protests at Shaheen Bagh in New Delhi. The protests at Shaheen Bagh attracted large crowds, including people who were there to provide all kinds of help to the protestors such as medicines, food, donations, etc. The increasing intensity of protest was visible in the fact that the sit-in protests that began on 14th December 2019 resulted in a blockade of a wide six-lane highway for nearly 1 kilometer, in less than 10 days. Naturally, it caused a lot of inconvenience to the commuters and the locals, so much so that some of the locals, wanting the roads to reopen, started counter-protests against the Shaheen Bagh blockade. Consequently, a plea was filed in Delhi High Court that sought shifting of CAA protesters from the Shaheen Bagh area to a different ‘authorized protesting place’ and would result in the removal of barricades and blockages to ease traffic and pedestrian movements. However, later, the Bench comprising of Chief Justice D.N. Patel and Justice C. Harishankar dismissed this plea.

Nonetheless, another writ petition titled Amit Sahni v. Commissioner of Police and Others was filed seeking directions to withdraw the closure of Shaheen Bagh‘s stretch. Inter alia, this petition raised the issues faced by office-goers and school-children; who were being forced to leave their houses multiple hours in advance in order to commute on a daily basis. It also stated that the Delhi Police had failed to address this issue effectively. Accordingly, the petitioner requested the Court to issue a writ of Mandamus to both, the Delhi and the Union Government to provide requisite assistance to the Delhi Police in addressing the issue at hand.

However, in its judgment towards this petition dated 14 January 2020, the Delhi High Court directed the respondent authorities to look into the grievances ventilated by the petitioner in the petition, and address them in accordance with the law, rules, regulations, and relevant government policies in place. Although the Court refrained from issuing any specific order or writ as to how to handle the agitation or protest or the place of protest and the traffic, it emphasized that the respondents had all the power, jurisdiction, and authority to control the traffic, wherever protests or agitations are going on, in the course of larger public interest.

The Supreme Court And The Shaheen Bagh Protests

Even after the Delhi High Court judgment in place, the  continuance of the Shaheen Bagh closure for over a month and the consequent ambiguity in the directions provided by the Delhi High Court, led Mr. Amit Sahni to file a Special Leave Petition (“SLP”) in the Supreme Court. The petition pointed out that the Delhi High Court judgment had only asked the authorities to look into the matter, without any formal order provided in that direction. Aggrieved by the same, the petitioner went on to raise the issue if the protesters had an unrestricted right under Article 19 of the Constitution to protest on a busy road in violation of other persons’ right to have thoroughfare. The petition also asserted that protests could not be permitted to continue for an indefinite period, while it disturbed public tranquility and affected the lives of thousands of people. The petition finally argued that that it was the duty of the Court to strike a balance between competing claims of different interests.

In the meantime, another writ petition was filed in Supreme Court seeking a comprehensive list of guidelines for regulating protests in Shaheen Bagh that led to obstruction of public places. The petition enumerated many questions for the Supreme Court which included whether the State had the duty to protect the fundamental rights of thousands of the citizens since even the rights under Article 19(1)(a) are not absolute and unchecked but are subject to reasonable restrictions. Citing the case of State of West Bengal v. Subodh Gopal Bose, the petition claimed that had there been no restraints in place, the rights and freedoms of citizens might become synonymous with anarchy and disorder.

The Supreme Court, on 10th February 2020, ordered a notice to the Central Government on the petitions seeking the clearance of the roads at Shaheen Bagh and refused to issue interim directions, for the time being. Subsequently, however, an intervention against the petitions was filed through an application by Chandrashekhar Azad, stating that the inconvenience caused by the Shaheen Bagh protest was actually due to the unnecessary road blockades imposed by authorities themselves and that the petitions filed against the protests were to enable the administration to use the orders of the Court to justify police force and excesses on women who were peacefully protesting.

In its order dated 17 February 2020, the Supreme Court pointed out that the mere fact that the Supreme Court was considering the constitutional challenge against CAA would not take away the right to protest of the persons who feel aggrieved by the legislation. However, it stated that the actual question that was required to be dealt with by the Court was whether where and how such a protest can carry on without public passages being blocked. The Court also appointed a team of interlocutors headed by Senior Advocate Sanjay Hegde to hold talks with the Shaheen Bagh protesters on a plea seeking clearance of road blockade due to the sit-in protests.

Subsequently, former Chief Information Commissioner, Wajahat Habibullah filed an affidavit in the Supreme Court after visiting Shaheen Bagh and interacting with the protestors at the site. The affidavit emphasized that there was only a peaceful protest in Shaheen Bagh. It was also stated in the affidavit that most of the inconvenience is caused by the unnecessary barricading of parallel roads by the police. Following this, the interlocutors’ team also submitted its report in a sealed cover since the Court deemed it fit to keep it confidential.

Later, however, as India came into the grasp of the COVID-19 outbreak, a petition and an application were filed in the Apex Court seeking an immediate dispersal of Shaheen Bagh protestors or any other such sites in view of the imminent dangers of the pandemic. Meanwhile, the Court’s appointed interlocutors also urged the protestors, media, and governmental authorities to give priority to the threat of the grave pandemic. However, in late March, the protestors submitted a statement before the Supreme Court through the court-appointed interlocutors taking a strong objection against the actions of the Delhi Police of forcibly removing the structures at the protest site at Shaheen Bagh.

Therefore, in its order dated 21 September 2020, the Supreme Court dismissed every petition and application other than Mr. Amit Sahni’s petition and reserved its judgment on the aspect of the need to balance the right to protest with the right to mobility of other people.

The Judgment and Its Rationale

On October 7, 2020, the Court finally provided its judgment on this issue. Placing its reliance on the case of Mazdoor Kisan Shakti Sangathan v. Union of India & Anr., the Court observed that each Fundamental Right, be it of an individual or a class, does not exist in isolation and has to be balanced with every other contrasting right. Thus, while appreciating the existence of the right to peaceful protest against legislation, the Court made it unequivocally clear that “public ways and public spaces cannot be occupied in an irresponsible manner”, that too for an indefinite period of time.

It was also observed that democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. Consequently, relying on Justice K.K. Mathew’s observations in Himmat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr., the Court observed that,

“…streets and public parks exist primarily for other purposes and the social interest promoted by the untrammeled exercise of freedom of utterance and assembly in the public street must yield to the social interest which prohibition and regulation of speech is designed to protect…”

Finally, the Court concluded that such kinds of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.

Conclusion

In light of the current judgment at hand, it is true that it shall have significant ramifications towards the future on people’s right to protest in India. It is simply because the questions posed to the Court, in this case, were deeper than it seemed. They were not only limited to creating a balance between people’s right to protest and their right to mobility, but also to create a balance between the voice of dissent and an effective functioning of a democracy. Hence, the judgement has also come under criticism from various scholars and activists. However, it is only time that can tell what ramifications will be of this judgment.

Further Readings: –

  1. Venkatesan, Supreme Court’s Shaheen Bagh Judgment Will Lead to Fresh Curbs on Right of Peaceful Protest, The Wire, October 8, 2020
  2. Vakasha Sachdev, What Does SC’s Shaheen Bagh Verdict Mean for Our Right to Protest?, The Quint, October 8, 2020
  3. Apoorvanand, The Purpose of Protests, The Hindu, October 12, 2020
  4. Badri Raina, Sanitising the Polity: Making the Protester Invisible, The Wire, October 12, 2020
  5. Editorial, Dissent, to Order, The Indian Express, October 9, 2020
  6. Deepak Gupta, The Right to Dissent is the Most Important Right Granted by the Constitution: Justice Gupta, The Wire, February 24, 2020
Sahil Aggarwal

Sahil is second-year student at NALSAR. He is an enthusiast exploring the different dimensions of public law, to find the best field for himself. He is also interested in sports and books.

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