Shaheen Bagh Protests & the Supreme Court: An Institutional Failure?
Updated: Mar 1
Damodar Swarup Seth argued in the Constituent Assembly that public order and morality places the freedoms at the mercy or the high-handedness of the legislature and the Supreme Court would have no alternative but to uphold restrictive legislations. Senior Advocate Menaka Guruswamy noted that an analysis of the jurisprudence of the Supreme Court reveals that these fears are well-founded. Unfortunately, it appears true not only for legislations but for protests as well.
The much-awaited decision of the Supreme Court of India (SC) in Amit Sahni v Commissioner of Police was delivered by a bench consisting of Justice S. K. Kaul, Justice Aniruddha Bose and Justice Krishna Murari on 7th October 2020. The enactment of Citizenship Amendment Act, 2019 had sparked a women-led protest in Delhi’s Shaheen Bagh-Kalindi Kunj stretch. The court in essence held that “public ways and public spaces cannot be occupied in such a manner and that too indefinitely”.
Firstly, the SC held (¶ 17) that public ways and public spaces cannot be occupied, and dissent must be expressed at designated places. It is interesting to note here that the Hon'ble court failed to appreciate the judgment in Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, which it chose to rely on. In Himat Lal it was held ‘that public streets are the natural places for expression of opinions and dissemination of ideas’. Furthermore, the European Court of Human Rights in the Case of Ashughyan V. Armenia observed that any demonstration or protest in a public place may cause a certain level of disruption to ordinary life, including disruption of traffic. Unless the protestors engage in acts of violence, the public authorities must tolerate peaceful gatherings (¶ 90). The ECHR found the accused not guilty of obstruction of street traffic as there was no evidence to suggest that the disruption was more than permissible (¶100).
Protests are bound to cause disruption and obstruct the ordinary course of life to draw attention and pressurize the government. If protests are staged in isolated designated places and do not obstruct ordinary life, the whole purpose of protests will be defeated. Protesters in a free and democratic society guided by the rule of law can block a road and occupy public spaces to express dissent. The direction of the court, mandating protests in designated areas casts a black shadow on the freedom of speech and expression and right to assemble peaceably. In fact, the court itself in the last hearing stated – protest can happen on roads in a peaceful manner; how and why the court shifted to designated places only is unclear. [
Pic Credits: Gulf News
The SC further relied on Mazdoor Kisan Shakti Sangathan v Union of India in the judgment and passed an order which potentially stifles the protests. However, in Madoor Kisan, it was held that repeated orders denying permission for demonstrations are tantamount to banning of public meetings and demonstrations. This is precisely the case here as well, the SC judgment gives the authorities a free hand to disperse protestors from everywhere except for designated places, in essence, banning protest. The court has overlooked the degree of disruption caused by the protest. It is evident that the SC failed to appreciate the precedent it chose to rely on.
Secondly, there are numerous apparent contradictions in the judgment. It was contended (¶13) that the right to protest flows from Article 19(1)(a) and Article 19(1)(b) of the Constitution of India and in this specific case, the only restriction applicable is of ‘public order’ under article 19(2) and 19(3). The court mentioned the word ‘public order’ several times in the judgment, but has nowhere engaged with the factual matrix which points that there was in fact threat to ‘public order’. The court relied on the report of the interlocutors to describe the blockade of the Shaheen Bagh-Kalindi Kunj stretch. It has been held repeatedly that there must be proximate nexus between speech or demonstration and public disorde; this nexus must be “spark in a powder keg”. Mere blockade cannot be termed as a threat to public order!
In the very first paragraph of the judgment, the court talks about the principle of separation of power and further observes that the administration should act and not hide behind court orders or seek support (¶20). Interestingly, in the same paragraph, the court also held that the Delhi High Court should have monitored the matter rather than disposing it. This is prima facie contradictory and confused stance. Moreover, the court observes that courts are not meant to give a shoulder to the administration to fire their guns on i.e. the executive must exercise their wisdom. The question which arises here is why the court went into the merits of the case to comment on the success of the protest as well as how and where to protest? With due respect, this is utterly absurd.
Lastly, there are slippery slopes as a consequence of the judgment. The court held that the executive must exercise its wisdom and take action, and that the court will intervene only if the legality of these actions is questioned (¶20), and it also mandated that the protestors must be subject to restriction enunciated in the judgment (¶21). A major concern here is what are designated places to protest, and who decides them?
Justice Kaul noted (¶10) that absence of leadership guiding the protest and the presence of various groups of protestors resulted in many influences acting at cross-purposes, and it no longer remained the sole and empowering voice of women. What is the observation here? Is a protest not guided by a leader illegitimate and can be subjected to unreasonable restrictions? If a protest started by women is supported by other groups, is it maligned and can be legitimately crushed by the executive?
Apart from the open-ended wording, the court has raised questions about the legitimacy of the purpose of the protest when it observes (¶18), technology can scale up an issue quickly, however, it is fraught with danger as it creates a highly polarised environment with no constructive outcome which was the case with Shaheen Bagh. Here again, the court referred to the reports submitted by the interlocutors (which are not public). This statement was unnecessary and no doubt stamped a peaceful democratic dissent as an ill-intentioned polarised movement.
I would conclude the piece by quoting from a lecture delivered by Hon’ble Justice D.Y. Chandrachud- “Democracy…is judged not just by the institutions that formally exist but by the extent to which different voices from diverse sections of the people can actually be heard, respected and accounted for. The great threat to pluralism is the suppression of difference and the silencing of popular and unpopular voices offering alternate or opposing views. Suppression of intellect is the suppression of the conscience of the nation.”
By Prakhar Raghuvanshi (Guest Writer)
III Year student, B.A. LL.B. (Hons.) National Law University Jodhpur
Prakhar Raghuvanshi is a student of law at National Law University Jodhpur and shares a keen interest in Constitutional Law, Economics, and philosophy.
Constituent Assembly Debates, December 1, 1948 speech by Damodar Swaroop Seth, available at http://parliamentofindia.nic.in/ls/debates/vol1p5.htm (last visited on December 02, 2014).
Menaka Guruswamy, Assembly & Association in Fiscal Challenges In The Twentieth Century 121, 123 (2nd ed., 2008).
Amit Sahni v Commissioner of Police, Civil Appeal No. 3282 OF 2020.
Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, 1973 AIR 87.
Case of Ashughyan V. Armenia, (Application no. 33268/03)
V. Venkatesan, Supreme Court’s Shaheen Bagh Judgment Will Lead to Fresh Curbs on Right of Peaceful Protest (08 October 2020), available at https://thewire.in/law/supreme-court-shaheen-bagh-judgment-fresh-cubs-right-of-peaceful-protest.
FirstPost, Supreme Court, in anti-CAA blockade case, says there can't be a universal policy on right to protest 21 September 2020, available at https://www.firstpost.com/india/supreme-court-in-anti-caa-blockade-case-says-there-cant-be-universal-policy-on-right-to-protest-8837421.html
Mazdoor Kisan Shakti Sangathan v Union of India, Writ Petition (Civil) No. 1153 OF 2017
Kameshwar Prasad And Others vs The State Of Bihar, 1962 AIR 1166.
S. Rangarajan Etc vs P. Jagjivan Ram, 1989 SCC (2) 574.
Jamalmohemad v SP, Trichy District, W.P.(MD)No.5344 of 2020 (Lecture cited by Madras High Court).