How Shaheen Bagh Protestors Got Tacit Support From the Judiciary

Wajahat Habibullah, a Shaheen Bagh interlocutor, writes how this protest is a display of the triumph of democracy.

5 min read

With the absolute majority that it had secured in the Lok Sabha in the general elections of that year and with support drummed up in the Rajya Sabha, government passed the Citizenship Amendment Act (CAA) on 11th December, 2019 which read together with a controversial clutch of laws, sought to redefine Indian citizenship in the context of religious denomination.

Under this law the definition of illegal immigrant in the principal Act of 1955 stands amended for Hindu, Sikh, Parsi, Buddhist and Christian immigrants from Pakistan, Afghanistan and Bangladesh, “who entered into India on or before the 31st day of December, 2014” and who have lived in India without documentation. They will be granted fast-track Indian citizenship in six years. 12 years of residence had thus far been the standard eligibility requirement for naturalisation.


What Led to the Shaheen Bagh Protest?

During Vajpayee’s BJP-led NDA-1 government, the Ministry of Home Affairs issued the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.

Its infirmities were not addressed by two successive Congress-led UPA governments (2004-2014), or by the succeeding NDA-2 government.

When a National Population Register (NPR) and the National Register of Citizens (NRC) were created, they drew attention to the 2003 Rules. The Parliamentary Standing Committee on Home Affairs is said to have warned that the entire Census process might be jeopardised by public dissatisfaction if the NPR were clubbed with Census to lead to the NRC. But was that in fact the very purpose of the 2003 Rules?

Public agitation as feared inevitably broke out across the country. India’s migrant labour, its small and marginal farmers tribal and forest dwellers and the poor amongst the Dalits were all affected. But the fountainhead inspiring the demonstrations was the sit-in by a group of old Muslim matriarchs, referred to in the public as ‘Dadis’ (grandmothers in Hindi) supported by a large number of younger women, most of them supposedly repressed because they were burqa clad, and the more assertive of their young menfolk.

Shaheen Bagh Women: Mostly Supported, A Little Demonised

To the embarrassment of its opponents, which sought to dismiss the demonstration as a regressive Muslim backlash, this movement was firmly grounded in the Constitution and its symbols were decidedly nationalist including India’s tricolour.

It received widespread support across communities and was replicated as far away as Madurai despite efforts at forcible suppression as in the neighbouring BJP ruled UP, which specifically targeted Muslims.

As I was to point out to the apex court on personal verification carried out under the orders of that court the protesting crowds in Shaheen Bagh comprised all religious denominations.

On the other hand, state governments of every political hue of which chief minister Pinarayi Vijayan led Left Democratic Front government of Kerala was first, began to declare that they would not cooperate in the NPR enterprise. Even the governments led by parties that had voted in support of the Citizenship Amendment Act in Parliament, notably the Aam Aadmi party elected to the Delhi government even as the Shaheen Bagh agitation played out in 2019-20 and the Bihar coalition—that includes the BJP—opposed the exercise.


Judiciary and Shaheen Bagh Protests

Politically committed advocate Nand Kishore Garg moved a Public Interest Litigation (PIL) before the Supreme Court against the Union of India seeking eviction of the demonstrators, who had blocked a road of Shaheen Bagh, in Okhla close to the UP border. The Delhi police and the UP police, both under the control of BJP governments, sought to stoke public resentment against the peaceful agitators by barricading numerous roads—I personally inspected at least five—on all sides with no connection to the protest. These arterial Greater Noida Expressway accessing Delhi and Faridabad from Gautam Budhh Nagar in UP thereby disrupting public movement.

In hearing the PIL the Supreme Court ruled that peaceful demonstration, even if critical of government was the right of every citizen.

Nevertheless the apex court qualified this by also holding that such demonstration could not be allowed to impede the exercise of their democratic rights by other citizens. To bring reconciliation in exercise of their rights amongst the citizenry the court took to mediation.

I had lent my name to a petition for intervention in the PIL pleading that the police be restrained from using excessive force against the public in compliance of any orders of the court. This was done keeping in view the use of brute force by the Delhi police, or encouraged by it, in intimidating other cases of peaceful agitation against the legislation in the capital as at Jamia Millia Islamia and Jawaharlal Nehru University.


How I Became a Mediator Between Shaheen Bagh Women and the State

Upon hearing the counsel on 17 February, and appointing advocates Sanjay R Hegde, who was “present in Court” and Sadhana Ramachandran, an expert at mediation, interlocutors “to make the persons at site see reason” the court decreed,

“ Application for intervention has been filed by Ms Tasneem Ahmadi, learned counsel seeking to intervene in the matter on behalf of certain people who have commonality of thought process with the persons who are protesting at the site. We have put to her that law has been enacted by the Parliament and the law is facing constitutional challenge before this Court but that by itself will not take away the right to protest of the persons who feel aggrieved (underlined by me) by the legislation. However, the question is where and how the protest can carry on without public ways being blocked……there may be persons of different points of view who may tomorrow, seek to emulate this protest, such scenario only leads to chaotic situation. This must cease on public ways everywhere.”

Then picking my name from amongst the intervenors the court advised, “Learned counsel submits that she will talk to the intervenor Wajahat Habibullah so that she can take up this issue with the persons at the site.”


Shaheen Bagh: A Triumph of Democracy

As directed by the court—and after consultation with the ‘mediators’—I visited Shaheen Bagh on 19 February. I then submitted an affidavit before the apex court in which I brought to the notice of the court the disruption of traffic by the police. I also conveyed the plea of the agitators declaring their objectives in taking recourse to a peaceful agitation with their reasons for opposing the CAA, NPR and NRC. I described the complete peace and harmony prevailing on site, bonding persons of all faiths in their united opposition to the legislation.

Making no intervention regarding its ruling on traffic, the court in its order of 24 February, permitted the agitation to continue until the next date of hearing, fixed for a month later. By then CONVID-19 had engulfed all else.

Although the police forcibly evicted those remaining at site, arresting nine and bulldozing the fragile nationalist symbols decorating the site, the objective of protestors had been asserted and noted across the world.

Shaheen Bagh represented a social revolution in its hijab-covered leadership with their 24-hour relay vigils, upholding the tricolour, the Preamble to the Constitution their anchor, seeking no insurrection but demanding justice. And the judiciary had tacitly lent its support by emphasising the Indians’ right to peaceful demonstration. Shaheen Bagh is a display of the triumph of India’s democracy.

(Wajahat Habibullah was the chairperson of the National Commission for Minorities. Prior to this, he held the position of the first Chief Information Commissioner of India. He was an IAS officer from 1968 until his retirement in August 2005. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.

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