For 24 years now, Jantar Mantar has been synonymous with protest. While this obviously means protests located in Delhi, the connection has been a national one, with causes from across the country finding a home there. A notable example of this was the protest by Tamil Nadu farmers, which gained significant public attention, and finally that of the government as well.
And that is indeed why Jantar Mantar has proved such a valuable location, because of its proximity to power. That was why the protests against the Emergency at the Boat Club had such resonance, and why every major display of dissent and dissatisfaction has looked to Jantar Mantar since the former venue became off-limits.
Too long? Listen to the story here:
The decision of the National Green Tribunal (NGT) on 5 October is a significant blow to this tradition of protest. On Thursday, the specialist tribunal directed the Government of Delhi, New Delhi Municipal Corporation (NDMC) and the Delhi Police to:
immediately stop all activities of dharna, protest, agitations, assembling of people, public speeches, using of loud speakers, etc at Jantar Mantar road.
These respondents to the case were given 4 weeks to comply with the NGT’s order, which also included a direction to shift any protestors, agitators and people holding dharnas to Ram Leela Maidan, a venue already used for larger protests, that is, however, much further away from the centres of government.
Blow to Democracy or Safeguarding Residents’ Rights?
Reactions to the judgment of the NGT have been less than positive, with the decision viewed as detrimental to democracy. The move has been questioned as a political move, criticised by activists, and the Aam Aadmi Party (AAP), the party in power in Delhi, wants the decision reviewed.
Senior advocate Prashant Bhushan tweeted:
“NGT firman to ban protests from Jantar Mantar is an assault on fundamental right of protest, critical in a democracy”
There is, of course, another side to this story as well, that of the people who petitioned the NGT for this in the first place. The applicants, led by Varun Seth, are seven residents of Jantar Mantar Road, who claim that the protests have led to noise pollution and hygiene problems, causing the residents adverse health effects, and wreaking havoc with their daily lives.
The NGT judgment has come down on the side of the latter, and in some ways, that is understandable. Unfortunately, the ways in which the NGT has arrived at its decision and in which it thinks it needed to protect the applicants, are deeply flawed, for the following reasons.
1. Lack of Evidentiary Basis for Arriving at Decision
The judgment of the NGT runs into 67 pages, and yet there is scant mention of any evidentiary basis for its conclusions. The applicants submitted numerous photographs, which are mentioned as being the basis for some of the tribunal’s findings, but no other evidence as part of the material on record is mentioned throughout the judgment. That is strange given that the main environmental norms alleged and found to have been violated are noise pollution norms.
Even the applicants’ supposed noise level recordings are not mentioned by Justice Rathore and Dr Garbyal in the context of findings – they mention in paragraph 28 that the applicants conducted a test, but never mention the findings of these recordings and what they revealed.
According to Shibani Ghosh, an environmental lawyer with significant experience in the NGT and Supreme Court, in cases such as these, the NGT normally directs an independent factual inquiry into the alleged infraction of environmental standards such as through a local commissioner or an expert committee. In her opinion, the main legal flaw, based on a reading of the judgment “seems to be the absence of measurement of the noise levels by any independent or expert agency.”
What makes this even more surprising is that in May this year, the tribunal passed an order in which they asked the NCT, Delhi and Central Pollution Board to submit a Status Report on 9 June 2017 regarding noise levels in the area during a demonstration and when a demonstration is not going on. There is no mention of this Status Report in the final judgment, not even to say that the report was not filed. Nor is there any order of the NGT dated 9 June, which one would expect to mention that the report was not filed, or describe its contents.
The finding of the Tribunal in paragraph 65 that the Air (Prevention and Control of Pollution) Act 1981, is therefore unsupported by any evidence on record, at least as far as the NGT has specified in the judgment. It is possible that discussions on this took place during the hearings, and that some evidence was placed before the tribunal, but without this being mentioned in the judgment, the evidentiary basis for the findings of the tribunal are open to question.
2. Which Legislative Provisions Were Violated by the Evidence on Record?
Apart from noise pollution norms, the judgment also says that other environmental laws were flouted, referring to the photographs provided by the applicants as proof of this. The photographs allegedly show the unhygienic conditions created by the protests and the makeshift structures built by protesters.
As with the question of noise pollution discussed above, there should have been some independent inquiry into the veracity of these claims, especially since the NDMC pointed out that it does clean the area, whether as part of its regular duties, and also especially after bigger protests. These submissions of the NDMC were brushed aside without any refutation, which once again casts doubt on the evidentiary basis of the tribunal’s decision.
But the issue of hygiene also raises a further impropriety – which legislative provisions were violated apart from noise pollution norms? The tribunal’s judgment is entirely silent on this, which is a significant issue, as one can only take corrective action against a violation of the law if one knows which provision has been violated.
3. Remedies Ordered by the Tribunal Were Disproportionate
Which leads to the next flaw in the judgment – the remedies arrived at in furtherance of the NGT’s findings.
The NDMC, the Delhi Police, the Ministry of Environment & Forest and the Central Pollution Control Board all submitted affidavits stating that there were already legal provisions in place that regulated noise levels and hygiene, applicable to Jantar Mantar Road. Their affidavits also included details of how these were enforced, and how they had not been violated per se with regards to Jantar Mantar Road.
While there is no harm in the tribunal finding that the authorities weren’t performing their duties up to the mark, the bench just dismissed these arguments as technical objections. The bench felt that these did not address the applicants’ arguments on merits, which they felt showed that their rights to live peacefully and comfortably had been infringed.
Even so, to completely ban protests in the area is completely disproportionate, and amounts to an unreasonable restriction of freedom of speech of protesters there. Nobody would say that protesters should be allowed to protest in the private property of the residents of Jantar Mantar Road or that they have an unregulated right to protest, but as long as they abide by the rules on noise pollution and they don’t violate any other laws, there can be no restrictions on the exercise of their rights.
This could have been simply ensured by issuing time-bound directions to the respondents to ensure compliance with the relevant environment law norms, banning loudspeakers at the venue, and so on. All these options, however, were dismissed by the court in paragraph 66 without any reasoning as to why this would not be sufficient, and the court decided that in the interests of equity and justice, the banning of protests at Jantar Mantar Road was the only way to proceed.
The decision of the NGT also ignores the fact that Ram Leela Maidan too is close to residential areas, and that it can’t be used on multiple occasions, such as during Dussehra festivities.
Can the Judgment be Challenged? And by Whom?
Decisions of the NGT can be appealed to the Supreme Court, under section 22 of the National Green Tribunal Act 2010. The obvious candidates to file such an appeal are the respondents in the case, ie, the Delhi Government, the NDMC, the Delhi Police, the Ministry of Environment & Forests, and the Central Pollution Control Board.
Of course, given the concerns raised regarding the political motivations behind this judgment, there is a strong suspicion that most of these respondents including the NDMC and the Delhi Police, which fall under the Central Government or the same party, will not appeal the decision. Indeed, till now there has been no statement by any of these respondents indicating a desire to challenge the judgment.
The Delhi Government, however, is controlled by a separate political party, and is separate from the other respondents (something the NGT repeatedly failed to understand in its judgment, which demonstrates a disturbing ignorance on its part). As mentioned above, the Aam Aadmi Party has indicated that they want the decision reviewed. Senior party leader Ashutosh tweeted on Friday that:
According to the Hindustan Times, AAP spokesperson Dilip Pandey stated that:
We request NGT to review the order. We also request Delhi government, Delhi Police and New Delhi Municipal Council — the implementing agencies — to ensure that the venue is not shifted even if it calls for knocking the court’s door.
But we do not need to wait for the Delhi Government to take action, thanks to the wording of the appeal provision in the National Green Tribunal Act. Under this provision,
This means that the right of appeal does not rest solely with the parties to a case before the NGT. Any regular citizen, including you or me, can appeal this judgment to the Supreme Court, though as Shibani Ghosh points out, such a case would need “to be accompanied by an application seeking permission from the Supreme Court to file the appeal and explaining how the person is aggrieved by the order.”
In the circumstances, the grievance we could all reasonably have with the NGT’s decision is that it unreasonably restricts our fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India, because there is insufficient evidence to justify its findings, and it ignores more proportionate responses. A more detailed legal opinion would obviously be required to establish the violation of fundamental rights, but there are a number of eminent lawyers who have championed free speech causes who should be more than happy to help with this.
An alternative option is to file writ petitions with the High Courts or the Supreme Court, though the courts will likely refuse the petitions if they are not preceded by an attempt to ask the NGT for review, all of which is likely to become more of a hassle than just following the appeal procedure.
What Happens to the Protesters Now?
It’s all very well to examine what should happen on appeal and how our rights are being affected for future protests, but the immediate effects of this judgment will be felt by the people currently protesting at Jantar Mantar. As mentioned, the NGT has given 4 weeks for these people to be removed from the area and shifted to Ram Leela Maidan.
This has been met with opposition by the protesters, including the OROP protesters, and many have argued that they don’t intend to leave.
Interestingly, they may not need to, regardless of whether the judgment is appealed or not. The operative part of the judgment, in paragraph 67, only makes reference to “Jantar Mantar road”, which is a specific road in Delhi.
The ban on protests, and the removal of temporary structures, loudspeakers and PA systems, are both specifically with reference to Jantar Mantar road, not Jantar Mantar itself.
As a result, if protestors were to just shift themselves into the grounds of Jantar Mantar, which was after all the area designated for protests in 1993 by the government, the NGT’s order should not apply to them.
One can only hope that the Delhi Police appreciate such an argument, which may admittedly require an appreciation of subtlety they may not quite share. In the meanwhile, the rest of us concerned about the implications of this decision should actively start looking into filing an appeal against it, and trying to motivate the Delhi Government to do so as well.
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