The recently introduced Citizenship Amendment Act (CAA) and National Register of Citizens (NRC) have garnered widespread public debate on whether these measures are in consonance with the secular ideals of the Indian state. These two measures created serious apprehensions that they would become an instrument for stripping Muslims of their Citizenship rights, and led to nationwide protests. The peaceful sit-in demonstration at Shaheen Bagh in Delhi became the centre of national and international attention because it was a peaceful protest conducted by ordinary women living around Shaheen Bagh. However, the protest was dealt with a heavy blow by the Indian Supreme Court’s judgement in Amit Sahni vs Commissioner of Police, It was held that public places cannot be occupied for an indefinite period of time for peaceful demonstrations which can only be done at “designated places”. Critics believe that confining peaceful demonstrations to designated places is anti-democratic, the judgement is also particularly significant considering the pivotal role of peaceful protests in birth of independent India. In this article, I argue that the judgement is not only at variance with contemporary ideas about undesirability of confining protests to “designated places”, but also disregards one of the ideas that was instrumental in formation of the Indian Republic.
In order to understand the impact of the judgement, we need to understand the rationale behind public demonstrations and its relevance to democracy. Right to peaceful demonstration is not merely a civil-political right which is subject to reasonable restrictions. This is because public demonstration is ‘appearance’ of the ‘precarious’ (subaltern). Professor Partha Chatterjee opines that the ‘urban subaltern’, excluded from the legal framework, participates in public demonstrations as a means to ‘collective bargaining’. It is a mechanism through which the ‘urban subaltern’ forces the State to participate in informal negotiations to realize their demands and aspirations. (Page 18). Butler further argues that the public character of public spaces is contested by the State’s desire to keep such spaces free from encumbrances. Thus, since these demonstrations are done against the State itself, State’s attempt at regulating citizens’ freedom to assemble and demonstrate suffers from conflict of interest. Hence, any State imposed restrictions on freedom of assembly can deter articulation of popular will and endanger democracy (Page 72).
The issue is of particular relevance to India because of the role of civil disobedience in Indian independence. Mahatma Gandhi effectively used peaceful resistance against unjust laws enacted by the colonial government. The Champaran Movement against Indigo Cultivation garnered widespread public support and eventually forced the Government to abolish it. The Salt March of 1930 was an even bigger movement against the Salt Act of 1882. The number of people participating in the march increased continuously during the 240-mile walk that culminated in production of salt on the shores of the Arabian Sea. Both are illustrations of ordinary citizens, having no legal remedy, participating in public demonstrations to force the Government to acknowledge their demands. This form of protest was enacted on a much larger scale during Quit India Movement and eventually forced the mighty British Empire to accept India’s independence.
Thus, right to peaceful assembly occupies a special position in Indian Constitution due its relevance to Indian Republic The right to peaceful demonstration is enshrined as a fundamental right under Article 19(1)(b) the Indian Constitution. The right is subject to reasonable restrictions under Article 19(3) of the Constitution. ‘Public order’ appears to be the most commonly used reason for restricting this right. In Supt. Central Prison vs RM Lohia, the Supreme Court equated ‘public order’ to ‘public safety’ and ‘tranquillity’ and ruled that for restriction to be reasonable, it is necessary to have some nexus between the act and public order.
However, in Lohia vs State the Apex Court differentiated ‘public order’ from ‘maintenance of law and order’ and ‘security of the State’ and divided the three into concentric circles. While ‘maintenance of law and order’ is the largest circle, it is followed by ‘public order’ and ‘security of the State’. Thus, the restriction imposed under ‘public order’ needs to fulfil a higher threshold than ‘maintenance of law and order’. However, the Madras High Court had not allowed occupation of the Marina Beach for 3 months because it would create ‘public order’ disturbance. This is because the court held that right to protest cannot be extended to right to create inconvenience. Thus, one’s right stops where another’s right starts.
This reasoning is controversial because in all these cases, the judiciary is supposed to balance between the right to protest vis-à-vis right to mobility. Further, since every demonstration is a mean for collective bargaining, thus its purpose is to create inconvenience to the public so the State meets the demands. Hence, denying occupation of public place for peaceful protest for an indefinite time because of causing inconvenience to the commuters has been criticized as being ‘elitist’.
In the present case, the anti-CAA protest was going on at Shaheen Bagh for several days. The CAA aimed to provide citizenship to refugees based upon their religious beliefs and was enacted in the backdrop of NRC conducted in Assam resulting in declaring lakhs of Muslims as illegal migrants. Thus, there was an apprehension that the law would eventually lead to disenfranchisement of Muslims and excluding them from the legal framework. The petitioner filed the Writ Petition asking the State to clear the site as commuter’s freedom of movement was getting affected. The Court held that the demonstration can be staged at “designated places” only.
This emphasis on “designated place” defeats the very purpose of public demonstration for a number of reasons. First, the Court has not asked the State to ensure availability of “designated place” in every city. In this connection we should keep in mind that the National Green Tribunal (NGT) had banned protests at Jantar Mantar, the “designated place” in Delhi, due to noise pollution, which was later lifted by the Apex Court. Thus, having “designated place” does not necessarily serve the interest of the residents living in those areas.
Second, since this protest was against an Act passed by the Parliament and backed by executive power, garnering wider support by attracting public attention was critical for its success. In fact, the rationale behind any protest demonstration is to attract attention of concerned authorities. So, confining demonstrations at “designated places” can render such protests as ineffective as such “designated place” may not be the appropriate place to draw attention of authorities against whom such protests are directed. In such case, restricting public protests to “designated places” becomes a tool for stifling democracy by placing barriers to informal bargaining. This is reflected in the General Comment 37 of ICCPR which states that imposing restrictions on ‘time place and manner’ of assembly should be done in a manner so that it is within ‘sight and sound’ of the targeted audience. Hence, as mentioned by Judith Butler, the idea of “designated place” takes away the fight for the public place which is a contested area.
In fact, the judgement is not in consonance with earlier judicial interpretations on this matter. Although Indian Judiciary has upheld citizen’s right to hold meetings in public spaces, it has also reiterated that such right is not unfettered. In Himmat Lal K. Shah vs Commissioner of Police, the Supreme Court ruled that the State cannot impose arbitrary or excessive restrictions to regulate it due to its intricate relationship with other fundamental rights. As per Justice Matthew’s opinion, citizens’ right to use public spaces for public demonstrations and state’s right to keep such spaces free for all are both subject to reasonable restrictions. Hence, blanket restriction on public demonstration at parks and public streets is unjustified. Supreme Court’s judgement in the Mazdoor Kisan Shakti Sangathan vs Union of India is in contrast to the one at hand. It stated that it may be necessary to impose reasonable restrictions on the right of one class to protect right of another class of people. It ruled that while Section 144 of CrPC gives wide discretion to the Authorities for controlling public demonstrations, indiscriminate use can lead to ‘banning’ of public demonstrations. Hence, it asked the State shall make proper guidelines on ‘prior permission’ to allow its restricted use for demonstration. The guideline shall also aim to reduce the inconvenience of the non-participants.
In the present case, anti-CAA protests were being led by ordinary women living in and around Shaheen Bagh. Since they were taking care of their domestic work while participating in the demonstration so, insistence of holding the protest at a site away from that location would have created a barrier for those who are not accustomed to prolonged absence from home.
The above discussion shows that invocation of “designated place” for demonstrations at Shaheen Bagh is at variance with case laws as well and international standards on this issue. The interpretation also ignores the role of public demonstrations in birth of Indian Republic. Moreover, such narrow interpretation of right to use public places disregards demonstration’s relevance to democracy. Since demonstrations serve as the means through which weaker sections of society attempt to draw attention of and negotiate with the State for realizing their demands so, visibility and enlisting wider public support is critical for its success. Confining demonstrations to “designated places” is undemocratic as it acts as an insurmountable barrier to Citizen – State dialogue and prevents collective bargaining.