Can’t occupy indefinitely, says Supreme Court on Shaheen Bagh

The Supreme Court ruled on Wednesday that the right to protest and express dissent against governments is a fundamental right, but not absolute and also that public places cannot be occupied indefinitely to stage protests and demonstrations. The court also slammed the authorities for failing to disperse protesters who occupied a public space in the city for longer than three months.

The ruling came in the context of the long-running protest against the Citizenship (Amendment) Act, or CAA, in south Delhi’s Shaheen Bagh that started on December 15, 2019, and ended on March 23, not because of police action but the lockdown imposed to fight the coronavirus disease (Covid-19). The stage and other facilities put in place by the protestors were subsequently dismantled by the police.

“We have to make it unequivocally clear that 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,” a three-judge bench headed by justice Sanjay Kishan Kaul said.

The protest in Shaheen Bagh blocked public way and caused grave inconvenience to commuters and that’s not acceptable,the bench, also comprising justices Aniruddha Bose and Krishna Murari, held. Such protests should be allowed only in areas specifically designated for the purpose, it said.

The ruling came in response to a plea filed by advocate Amit Sahni in February, who wanted the road blockade in the Shaheen Bagh–Kalindi Kunj stretch lifted.

The protest in Shaheen Bagh blocked one of the key thoroughfares to Noida.

The court was also critical of the authorities for their failure to act against the protesters,saying they should have taken timely action to keep public areas free of encroachments. The administration neither started negotiations with the protesters nor acted against them that warranted the court’s intervention, the bench said. Law and order in Delhi comes under the purview of the Union government, and Delhi Police reports to it.

“The courts adjudicate the legality of the actions and are not meant to give a shoulder to the administration to fire their guns from,” it said in the verdict.

The apex court also observed that although the creation of an independent India can be traced to the seeds of protest sown during the freedom struggle, the mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy.

India’s constitutional scheme envisages the right to protest and express dissent, but with certain obligations, the court said.

“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) and the right to assemble peacefully without arms under Article 19(1)(b). These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order,” the judgment stated.

The CAA, which was passed on December 12, 2019, replaced the Citizenship Act, 1955, to fast-track the grant of Indian citizenship to members of the Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities from the Muslim-majority nations of Afghanistan, Bangladesh and Pakistan. The exclusion of Muslims triggered widespread protests across the country as did the linking of citizenship with religion.

Petitioner Sahni had stated that while people have the right to protest, it was subject to reasonable restrictions and protesters cannot be allowed to occupy public roads indefinitely. Solicitor general Tushar Mehta, representing the central government, concurred with the petitioner.

“Every right is qualified,” Mehta argued.

During the hearing of the case, the court had on February 17 attempted to resolve the issue by sending two lawyers, senior advocate Sanjay Hegde and advocate Sadhana Ramachandran, to mediate with the protesters. The effort did not yield any results.

Hegde declined to comment on the matter because the court had appointed him as an interlocutor. “Sadhana [Ramachandran] and I were required to do a job and we did it to the best of our abilities in the given situation,” Hegde added.

In its judgment, the Supreme Court made some interesting observations on the nature of the protest itself. The protest had won the limelight because most participants in the sit-in were women.

The court, after going through the report submitted by Hegde and Ramachandran, stated that “while the women protesters had sat in protest inside the tent, there was a huge periphery comprising mainly of male protesters, volunteers and bystanders who all seemed to have a stake in the continuance of the blockade of the road.”

There was no common leadership helming the protests, the court said.

“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,” the judgment noted.

The protestors also did not fully realise the ramifications of the pandemic, but divine intervention finally led to the protestors deserting the site, it added.

Welcoming the ruling that the right to protest is a fundamental right, organisers of the sit-in at Shaheen Bagh expressed reservations on the part of the judgment that public spaces cannot be occupied indefinitely.

“This is against all oppressed people who try to protest against injustice,” said Abid Sheikh, one of the organisers of the protest.

Recently, 82-year-old protester Bilkis — popularly known as dadi (grandmother) of Shaheen Bagh — was included in Time magazine’s list of the 100 most influential people of 2020. Bilkis told HT about the verdict: “We respect the judgment. We will not be protesting now due to the Covid-19 crisis and our first priority is to fight against the pandemic. However, we still want the government to talk to us and repeal CAA.”