SC’s Protest Verdict Goes Against Judgment It Relied on: Experts

Prashant Bhushan, Karuna Nundy explain how the Shaheen Bagh judgment contradicts a prior verdict & international law

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The Supreme Court on Wednesday, 7 October, held that protests cannot occupy public spaces and must be restricted to designated areas, in a judgment 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.”
Supreme Court judgment in Amit Sahni vs Union of India

Noting the inconvenience caused to commuters by the protesters at Shaheen Bagh, the bench of Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari goes on to say, “We have, thus, no hesitation in concluding that such kind of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.”

The Quint spoke to renowned public interest litigation lawyer Prashant Bhushan and Supreme Court advocate Karuna Nundy to understand whether the court really has the power to put this kind of blanket restriction on protests in public spaces.

Does this judgment stand scrutiny under Indian law?

Prashant Bhushan explains that there are a number of oddities with the judgment. The key among these is the court’s reliance on the Himat Lal decision of the Supreme Court by a Constitution Bench in 1972.

“The court says that protests can only be in designated places and they quote Himat Lal Shah to justify this proposition. Himat Lal Shah in fact says exactly the opposite. Himat Lal Shah says you cannot restrict the right to protest to only a few places or have a requirement for prior permission etc.”
Prashant Bhushan

Reading from that earlier judgment – which was binding on the bench hearing the Shaheen Bagh matter – Karuna Nundy notes that you can only limit the right to protest with reasonable restrictions in the interest of public order. But what is public order?

“There is a long line of Supreme Court judgments that define public order – public order is not the disruption of traffic... Public order is a threat to the very rule of law, maybe a riot or a large scale assault on the State, something as big as that. There is no evidence whatsoever that there was that violation of public order here [in Shaheen Bagh] – indeed reading the judgment, it is not even recorded as being alleged.”
Karuna Nundy

Bhushan acknowledges that there is a need to balance the right to protest with the right of other citizens to move freely, but he says you can’t just say that in every case the right to freedom of movement will trump the right to freedom to protest.

This blanket nature of the restriction envisaged by the court is the problem, Nundy agrees. “You can’t in a blanket manner spatially decide on prohibition of protests in advance, without considering the nature of the protests and who would be affected.”

How does the judgment violate international law?

Nundy explains that the blanket nature of the court’s restriction on protests in public spaces violates the right to peaceful assembly under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. She quotes from a report of the UN Special Rapporteurs on this right in 2016, which says:

“To this end, blanket bans, including bans on the exercise of the right entirely or on any exercise of the right in specific places or at particular times, are intrinsically disproportionate, because they preclude consideration of the specific circumstances of each proposed assembly.”

Nundy notes that “assemblies are an equally legitimate use of public space as commercial activity or the movement of vehicles and pedestrian traffic” – a certain level of disruption to traffic or commercial activity has to be tolerated, therefore. The administration is also supposed to look at ways in which they can improve the situation, for instance, opening up other arterial roads, as could have been done with regard to Shaheen Bagh.

So does this mean the judgment cannot be used to restrict our right to protest in India?

Prashant Bhushan warns that while the Shaheen Bagh judgment may appear suspect in law, and may even be invalid because it is inconsistent with the previous Constitution Bench decision of the apex court, that doesn’t mean it won’t have a negative impact, practically speaking.

“Though this judgment is in the teeth of Himat Lal Shah which is a larger bench, and therefore it is per incuriam in that sense – unfortunately the authorities and the police will use this judgment to further restrict protests in public places.”
Prashant Bhushan

He notes that this is in keeping with the approach of the police to restrict protests in Delhi to Jantar Mantar and Ram Lila Maidan, even though protests are supposed to be allowed in other parts of even central Delhi, after taking prior permission and with due consideration.

Why should we be concerned about protests being restricted to certain designated areas?

Karuna Nundy refers back to the concept of how restrictions on protests can’t be against the spirit of the right to peaceful assembly, which is about people being heard, by their government and the public at large.

“Surely the State should be able to see those who are protesting against them. Surely the average citizen should be able to see and hear what protesters are saying. Surely you shouldn’t have a bunch of stalls, which is basically a little protest mela which is packed in and insulated not just against traffic but the general population, where the protesters are only talking amongst themselves. Not only does this take away the life blood of any protest, it means that neither the State nor citizens will know what problems the protesters are facing.”
Karuna Nundy

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