Video Editor: Abhishek Sharma
The Supreme Court on Wednesday, 7 October, held that the Constitution gives a right to dissent and protest but that such protests cannot occupy public spaces, in a judgement relating to the pleas against the Shaheen Bagh protests against the CAA that ran from December 2019 to March 2020.
“We 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.”Justice Sanjay Kishan Kaul, reading from judgment
The bench of Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari had reserved their decision on 21 September after noting that there cannot be a “universal policy” on the right to protest “as the situation may vary on a case to case basis”, but that they would try to see how they could balance this with the blocking of roads.
While the judges noted that the Shaheen Bagh occupation began as a protest against the CAA which is allowed under the Constitution, it ended up causing a severe inconvenience to commuters and occupied the entire public road. The court held that the Delhi High Court should have monitored the situation and the administration should have acted sooner to prevent the encroachment – the manner of how they should have acted was their responsibility.
“We have no hesitation in concluding that such kind of occupation of public space whether the site in question or anywhere else for protest is not acceptable, and the administration ought to take action to keep areas clear of encroachments and obstructions,” the judgment reads.
It had been pointed out during the arguments in the matter that the occupation of roads had been a method of protest during the freedom struggle as well. However, the judges have held that this cannot be equated with the current situation:
“We must however keep in mind that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a democracy. Constitution gives right to dissent, but with obligation towards certain duties.”
Following submissions from the petitioners and intervenors, as well as the report of the interlocutors appointed by the court – senior advocate Sanjay Hegde and advocate Sadhana Ramachandran – the judges have also included certain remarks about the protests at Shaheen Bagh. They noted that “in the absence of leadership guiding the protests, this resulted in many influencers acting at cross purposes”. They also remarked that the protests may no longer have remained the empowering voice of the women of the area, also appeared to no longer have the means to call off the protest.
The judges also observed that while the development of the digital sphere offered help in protests, there was a danger of polarisation on social media, which leads to “parallel conversations with no constructive outcome.”
WHAT WAS THE CASE ABOUT
Several petitions had been filed earlier this year asking the court to shift the anti-Citizenship Amendment Act and NRC protesters at Shaheen Bagh to an alternative site because of the inconvenience caused by their blocking of the main road.
A bench of the court headed by Justice Kaul had at the time also observed that the right to protest should not be an impediment to other people’s rights, but tried to resolve the matter by appointing senior advocate Sanjay Hegde and advocate Sadhana Ramachandran as interlocutors. The interlocutors submitted their report to the court in a sealed cover on 24 February, but the matter could not be taken up again because of the Delhi riots and then the coronavirus pandemic.
The protest site at Shaheen Bagh was dismantled by the police on 24 March following the announcement of lockdown measures relating to the pandemic.
Despite this, most of the petitioners who had sought the dismantling of the site, including advocate Amit Sahni, had not withdrawn their petitions. During the last hearing, he had said that though the Shaheen Bagh protest issue had become infructuous, the court should set out some guidelines so that “in future, protests should not hinder public movement.”
Solicitor General Tushar Mehta had observed to the court that the right to protest was a fundamental right, but like all other fundamental rights, was not absolute. Justice Kaul had observed that the right to protest could happen in a parliamentary democracy in Parliament and on the roads, “but on roads, it has to peaceful.”
Advocate Mehmood Pracha, appearing for the intervenors in the case (former CIC Wajahat Habibullah and Bhim Army chief Chandrashekhar Azad, who had asked for protection for the protesters), had argued against the dismantling of the protest site, and warned of the dangers of “state machinery” being “abused to convert a peaceful protest of many months into something else.”
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