We Can't Protest a Law if We Challenge it in Court? Since When, Your Lordships?

Even Article 19(2)'s contempt of court provision cannot justify restricting protests if a matter is sub-judice.

In my defence, I had a pretty busy weekend and went to sleep early on Sunday, which is why I had no clue that the Constitution of India was amended sometime that night.

It is testament to the incredible work ethic of the judges of the Supreme Court, however, that by the next morning, they were fully up to speed on the amendments, and began applying them to their decisions – while lesser minds like me still had no clue any amendments had even been made.

Thankfully, our ignorance of these spanking new changes to our fundamental rights and the very foundations of our democracy was soon lifted, when Justices AM Khanwilkar and CT Ravikumar asked on Monday, 4 October, how people could continue to protest laws passed by the government if they had also approached the constitutional courts to challenge the validity of these laws.

Following arguments by the Solicitor General of India, Tushar Mehta, and Attorney General for India. KK Venugopal, the judges realised, to their utter surprise, that people seemed to still think that there was no connection between the two things, that they did not realise that when a matter was sub-judice, you couldn't now go around asking the government to take separate action also.

Luckily, this silliness could be nipped in the bud now that it had come to light. All thanks to the farmer organisation Kisan Mahapanchayat, which had the temerity to ask the court for permission to protest against the Modi government's farm laws at Jantar Mantar, even though they had also filed a petition challenging these laws in the Rajasthan High Court, the mischievous scallywags.

To make things clear to everyone, the judges deemed it appropriate "to examine the central issue as to whether the right to protest is an absolute right" at the next hearing on 21 October.

And in a wake-up call for lazy hacks like me who hadn't bothered to keep track of the amendments, the judges clarified that they would also examine whether,

"the writ petitioner having already invoked the legal remedy before the Constitutional Court by filing writ petition, can be permitted to urge much less assert that they can still resort to protest in respect of the same subject matter which is already sub-judice before the Court."

I have to admit, I was a bit mortified. How had I missed that a new ground for reasonable restrictions on your right to freedom of speech and freedom of assembly had been added to Articles 19(2) and 19(3): when you have raised a similar issue in the high courts or Supreme Court.

I mean, a constitutional amendment like this doesn't really happen overnight. The amendment has to be introduced in Parliament, get the votes there, then get approved by a majority of state legislatures, then get presidential assent. Evidently I had been asleep at the wheel for months here – there went any hopes of a good appraisal from my bosses.

Shamefacedly, I checked the official gazette website for the notification of the amendment. Strangely, nothing. I checked PRS's website for details of when the amendment bill had been introduced. Nothing again. The Press Information Bureau's list of press releases. Still nothing.

By now I was a bit worried, so I consulted the great all-knowing oracle – but even Google turned up nada.

But how was this possible? If there had been no amendment to the Constitution, then how had 'sub-judice' become grounds to restrict the right to protest?

THE SUPREME COURT'S PREVIOUS RUN-INS WITH THE RIGHT TO PROTEST

After all, the Supreme Court itself, when hearing a request to stop the protests against the farm laws, had said in its order on 17 December 2020 that:

"We clarify that this Court will not interfere with the protest in question. Indeed the right to protest is part of a fundamental right and can as a matter of fact, be exercised subject to public order. There can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens and is in accordance with law."

On 12 January 2021, the same three-judge bench of the court, headed by former Chief Justice of India SA Bobde, had stayed the implementation of the farm laws. But even while noting that they hoped this would encourage the farmers to call off the protests, the judges had back in clearly said that the court "may not stifle a peaceful protest".

I was thoroughly confused now, because during the hearing on Monday, Justices Khanwilkar and Ravikumar had expressed their confusion that the protests had continued even though the Supreme Court had stayed the implementation of the farm laws. The three judges who had actually passed the stay had not believed that it took away the right to protest, so why would these two judges think this was up for debate?

Evidently, I was missing something. Of course! Back on 7 October 2020, the Supreme Court had delivered a judgment about the Shaheen Bagh protests – there must have been something there about how the right to protest couldn't be exercised by someone who'd filed a petition in the courts about the same issue.

Para 16: "Our Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties." Hmmm, nothing about sub-judice matters there.

Maybe a bit further in the paragraph? Article 19 confers on citizens the right to freedom of speech and expression and the right to assemble peacefully, blah blah blah enable enable every citizen to assemble peacefully and protest against the actions or inactions of the State. Aha!

"These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the concerned police authorities in this regard."

Wait, still nothing about the right to protest being affected by an ongoing case. Oh no, here we go, Para 17:

"However, while appreciating the existence of the right to peaceful protest against a legislation ... 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."

(Hang on a minute, wasn't that exactly what the Kisan Mahapanchayat was trying to do here? Wasn't this matter being heard by the apex court because they were asking for permission to protest in a designated spot?)

Ok, so the Shaheen Bagh judgment, even when seeking to restrict the right to protest in public spaces to designated areas, had said nothing about sub-judice matters. Instead, it had reiterated that reasonable restrictions on the right to protest had to relate to the sovereignty and integrity of India, or public order.

Maybe those three judges were also missing something that Justices Khanwilkar and Ravikumar had evidently read somewhere. Perhaps if we went to the Supreme Court's landmark 1972 Himat Lal Shah judgment on public order, decided by a five-judge Constitution Bench, there must be something there, right?

The five judges there had said that the right to assemble (whereby we get the right to physically protest) was not absolute, and can be restricted under Article 19(3) of the Constitution. So basically, the first part of the question that the Supreme Court says it will consider had already been considered. Fifty years ago.

The court held then that the right to protest couldn't be exercised everywhere, but this did not mean the State could prohibit assembly at all public streets and places. "The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order," the judgment reads.

So again, nothing in this judgment either, about the right to protest being taken away if you file a case.

WHAT DOES THE CONSTITUTION HAVE TO SAY ABOUT ALL THIS?

It was clear by now that we had to return to the source itself: *insert dramatic music* The Constitution of India.

Surely, surely there was something in the text of the Constitution which created sufficient doubt about the right to protest when you also go and file a case, which would explain why Justices Khanwilkar and Ravikumar were convinced that they needed to examine this legal question.

This meant looking at the provisions on reasonable restrictions on our fundamental freedoms. Article 19(3) is the obvious one, as it deals with what kind of reasonable restrictions can be imposed on the right to assemble.

However, as the Supreme Court had observed in both Himat Lal Shah and the Shaheen Bagh case, this only allows restrictions in the interests of (1) the sovereignty and integrity of India; or (2) public order.

It is not possible to shoehorn 'Oh you filed a writ petition asking the constitutional courts to strike down this law, so now you can't go and assemble on the street to tell the government to get rid of it anyway' into either of those two grounds.

But there is Article 19(2) to consider as well, which includes reasonable restrictions on the right to freedom of speech. According to that, the government can pass a law restricting speech and expression in the interests of:

1. the sovereignty and integrity of India – nothing about sub-judice cases here

2. the security of the State – nothing about sub-judice cases here

3. friendly relations with other States – nothing about sub-judice cases here

4. public order – still nothing

5. decency or morality – nope

6. defamation – still nope

7. incitement to an offence – still nope sirji

8. contempt of court – oh wait, hang on, could this be it?

Well well well, what do we have here? Could it be that continuing to protest on the streets would amount to contempt of court, if you have also filed a challenge against the the same thing in the courts? Maybe the judges and those senior lawyers had a valid concern after all?

Ok, but this wouldn't be civil contempt – ie wilful disobedience of a court order, not unless the court had itself specifically ordered the petitioners before it not to protest. Which we know isn't the case with the farmers' protests, since the Supreme Court has actively refrained from passing any such order.

Criminal contempt, on the other hand. Hmmm, maybe this is what's at play here. After all, the definition of criminal contempt under the Contempt of Courts Act 1971 includes any act which "prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding".

It also includes any interference or obstruction with the administration of justice.

But would all protests continued by someone who's filed a case in the high courts or Supreme Court prejudice those judicial proceedings or obstruct the administration of justice?

Unless and until the protests are at the court premises, or at judges' houses, or specifically call for action against the court and judges, this wouldn't really compute.

After all, we have a little thing called separation of powers in this country, which means that the Executive, Legislature and Judiciary are not the same. If a bunch of farmers are protesting the actions of the political Executive, that cannot be equated with protesting against the Judiciary and thereby trying to influence a judicial proceeding.

The nature of a protest against the political Executive or the Legislature is very different from a constitutional challenge as well. When the constitutional courts consider a writ petition against legislation, like the farm laws, they only test whether the legislation is constitutionally valid or not.

A protest against the government for enacting a law goes far beyond mere legality, and so cannot be said to prejudice a judicial proceeding. Thus, even if the Supreme Court held that the farm laws were constitutional, the farmers could still express their disagreement with them (non-violently, of course) and try to urge the central government to repeal them.

There's also the rather big problem of judicial delays.

The constitutional validity of Aadhaar wasn't decided for six years after it was first challenged in the Supreme Court. The electoral bonds case remains in cold storage nearly four years after the first challenge was made. The legislations that abrogated Article 370 and reorganised Jammu and Kashmir were challenged in the Supreme Court two years ago and nobody knows when they will be dealt with. It's been 18 months and counting on the CAA.

When the courts are in no hurry to hear constitutional challenges before them, why should citizens' right to protest be curtailed while they take their sweet time?

Even stays and interim measures are no guarantee that governments will not try to force their laws down our throats, as we saw with the central government's brazen disregard for interim orders on Aadhaar. Protests against the government’s plans would have nothing to do with the courts.

Basically, even contempt of court can't be a ground to restrict the right to protest except in the very obvious way of saying don't go and threaten the court hearing your case. Beyond that, there's no legal provision or logical connection that connects the right to protest and sub-judice cases.

So what legal question do Justices Khanwilkar and Ravikumar want to examine on 21 October, exactly?

Maybe better legal minds will find some legitimate way to justify this exercise. Maybe Jeff Bezos will decide to pay his employees properly and end world hunger. Maybe India will win the 2022 FIFA World Cup.

Or maybe the Constitution was just amended on Sunday night. It's certainly as likely as any of those other options.