Farmers’ Protest: Has SC ‘Lent a Shoulder’ To the Executive?

The SC has pointed out that it is the duty of the executive to handle protests and protesters.

Image used for representational purposes.

(Illustration: The Quint)

The dharna (sit-in protest) by farmers from Punjab, Haryana and other states against the farm laws at the Delhi-NCR border has entered its second month. The dharna has come close on the heels of a sit-in protest at Shaheen Bagh against the Citizenship (Amendment) Act and has proposed a move by the central government to implement the National Register of Citizens (NRC) for the entire nation.

Parallels are bound to be drawn. While the nature and magnitude of both the protests are quite different, the government’s response has been very much on the expected lines. The matter has now reached the Supreme Court, which again indicates that it is following the same trajectory.

The petitioners, through a clutch of petitions, have approached the SC, seeking removal of protesters from the Delhi-NCR borders on the ground that it violates the right of free movement of the petitioners and the general public.

Amit Sahni Vs the Commissioner of Police

While the national capital has been witness to many protests in the past, enough judicial pronouncements, guidelines and SOPs have been there to guide the administration to handle protests. Recently, the SC, in the case of Mazdoor Kisan Shakti Sangathan v Union of India & Anr- (2018) 17 SCC 324, while dealing with a similar situation and grievances, had discussed in some detail the issue of balancing the right to protest with the rights of residents of the area around Jantar Mantar – which was the site of the protest in that case.

The SC dealt with the same issue again in a case titled 'Amit Sahni Vs Commissioner of Police (Civil Appeal 3282 of 2020)‘. The petitioner, therein, approached the court for the removal of a blockage on a stretch of GD Birla Marg, which connects Delhi to Noida, by the sit-in protesters at Shaheen Bagh.

When the matter was finally taken up by the SC on 21 September 2020, the sit-in protest had already ended way back on 24 March and the matter was virtually rendered infructuous. But on the request of the petitioner, the SC agreed to keep the matter for consideration precisely on the point of need to balance the right to protest with the right of mobility of other people.

A three-judge bench of the Supreme Court finally gave its verdict on 7 October 2020. The court, though accepted the right to protest by citizens in a democracy, further held that the protest should be held in ‘designated places alone’.

The relevant portion of para No. 17 of the judgment reads as under:

Important Portions From the Judgment

“17. However, while appreciating the existence of the right to peaceful protest against a legislation (keeping in mind the words of Pulitzer Prize winner, Walter Lippmann, who said, 'In a democracy, the opposition is not only tolerated as constitutional, but must be maintained because it is indispensable'), 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. The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.”

The Supreme Court has very emphatically pointed out further in the judgment that it is the duty of the executive to handle protests and protesters and the executive should not try to find the shoulders of the court every time. The relevant paras of the judgment are:

“20. We are also of the view that the High Court should have monitored the matter rather than disposing of the Writ Petition and creating a fluid situation. No doubt, it is the responsibility of the respondent authorities to take suitable action, but then such suitable action should produce results. In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support from there for carrying out their administrative functions. The courts adjudicate the legality of the actions and are not meant to give shoulder to the administration to fire their guns from. Unfortunately, despite a lapse of a considerable period of time, there was neither any negotiation nor any action by the administration, thus warranting our intervention.”

“21. We only hope that such a situation does not arise in the future and protests are subject to the legal position as enunciated above, with some sympathy and dialogue, but are not permitted to get out of hand.”

Now, after the clear enunciation of legal position and law by the Supreme Court in Amit Sahni’s case, the instant clutch of petitions seems to be misdirected. The three-judges bench of the Supreme Court in its judgment, dated 7 October 2020, has dealt with this very issue of balancing the right to protest with the right of free movement of other citizens and in the view of the author, the issue stands authoritatively answered by the SC.

Approaching the Supreme Court again by raising the very same issue and seeking one more judgment will not salvage the situation. The court in Amit Sahni’s judgment has also clearly held that it is the job of the executive to deal with such situations but it seems that petitioners, who are statedly espousing public cause and are being represented by heavy-weight counsels, are doing the government’s bidding in order to obfuscate the situation.

The attempt, it seems, is to shift the limelight from the central government and its actions, which has brought lakhs of farmers at the borders of Delhi-NCR.

Government Called the Protesting Farmers ‘Anti National’

In Punjab, the farmers have been protesting against the farm laws since the last week of September but the central government, in its characteristic style, has chosen to look the other way, forcing the farmers to leave their homes and march towards Delhi.

Even then, the initial attempt of the government’s machinery was to malign the image of the protesters, by calling them anti-nationals, Khalistanis and misguided persons, than to reach out to them. It was only when the number of protesters at the Delhi borders swelled by leaps and bounds and people from different states also joined the protests that the government decided to engage with them.

Till now, the SC has not entered the melee, and for the time being, the court has kicked the can and ordered that the matter be listed after winter vacations. Nevertheless, by entertaining these petitions, the SC again seems to be unwittingly lending its shoulders to the executive to fire their gun from, though in its three-bench judgment in Amit Sahni’s case, the SC had effectively put the ball in the executive’s court.

(Amit Jaiswal is an advocate at the Punjab & Haryana High Court, with over 18 years of legal experience. This is an opinion piece. The views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)