Why Shaheen Bagh Verdict Threatens Rights & Favours Restrictions

What’s missing from SC’s logic is discussion on purpose of Right To Protest & how restrictions must be reasonable.

Image of Shaheen Bagh protestors used for representational purposes.

(Photo: Aroop Mishra / The Quint)

(This was first published on 8 October 2020 and has been republished from The Quint's archives after SC dismissed the review petition against Shaheen Bagh judgment.)

On Wednesday, 7 October, months after the protestors at Shaheen Bagh had vacated the site, the Supreme Court decided a petition seeking their removal. The main ground of the petition was the idea that protestors blocking a public road is not permissible in our constitutional regime. The Court’s decision raises important questions over what the Constitution means and whose rights it upholds.

The Petitioner had initially filed a writ petition in the Delhi High Court seeking the clearance of Shaheen Bagh, where protestors were holding a sit-in against the Citizenship Amendment Act, 2019, passed by the Parliament in December 2019. When the High Court disposed of the petition by leaving it for the Delhi Police to decide, the Petitioner appealed the decision to the Supreme Court.

Two additional writ petitions were also filed but were eventually “dismissed as withdrawn” once the protest site was vacated in March 2020. In this case, the Court declared that it must “pen down a few more lines for clarity on the subject on account of its wider ramifications.”

Crucially, the Court went on to render a judgment whose crux is that “public ways and public spaces cannot be occupied in such a manner and that too indefinitely.”

With respect, the Court’s reasoning in this case is inconsistent with its jurisprudence on fundamental rights, and threatens to eclipse rights in favour of restrictions.

Framing Article 19 Of Indian Constitution

It is well established that the right to protest is covered under the right to freedom of speech under Article 19(1)(a) as well as the right to freedom of assembly under Article 19(1)(b). Restrictions on this right can be imposed on only on certain grounds such as public order, security of the State, and integrity of the country as provided in Articles 19(2) and 19(3). In fact, the earlier drafts of the Constitution provided for the rights under Article 19 without any restrictions. However, during a revision by the drafting committee, certain grounds were established on which restrictions could be imposed on these rights.

When the draft was brought back to the Constituent Assembly, numerous members registered their disappointment, arguing that rights being given by one hand were being taken away by another.

Dr Ambedkar allayed these concerns, explaining that rights were rarely absolute, and that by expressly recognising specific grounds for valid restriction, the State would be precluded from restricting rights whimsically. The framers also emphasised that the judiciary would safeguard these rights by ascertaining whether even restrictions in pursuance of valid grounds were “reasonable”, and whether they went beyond what was necessary in a particular situation.

Through their careful wording of Article 19, the framers reposed trust in the judiciary to check legislative and executive excess, which they feared may chip away at the fundamental rights.

The Court’s Misconception Of Rights & Democracy

In its judgment, the Court observed that in a constitutional democracy such as ours comes in “the right to protest and express dissent, but with an obligation towards certain duties.” Nowhere does the text or the structure of our Constitution make the exercise of rights subject to the fulfilment of duties. As Gautam Bhatia has argued, such a conflation of rights and duties risks further entrenching power structures by making rights of the marginalised not guaranteed but dependent on duties.

If at all, the duty the Constitution imposes is on the State to ensure that a fundamental right is not violated.

The Court went on to observe that the “erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self- ruled democracy.” Implicit in this statement is an assumption that a democratic system functions justly for all persons and communities at all times.

In the present case, the protestors at Shaheen Bagh sat outside for days and nights at end in the cold to protest against a law that, combined with the National Register of Citizens, puts their citizenship at risk by virtue of their religion. Aside from Shaheen Bagh, there were widespread reports of police authorities blanketly denying permissions for protests and marches against the Citizenship Amendment Act, and detaining persons who did gather or march in protest. Without following a pre-legislative consultative process, the Central Government pressed ahead, making no effort to engage with those dissenting against its legislative policy.

Perhaps most strikingly, even the Supreme Court showed no inclination to swiftly hear the challenge to the constitutionality of these laws, which threatened to gravely impact the lives of millions of persons.

A true constitutional democracy recognises that laws and regulations must account for the needs of all sections of society. This must include the less powerful, who may not have access to or a voice in the democratic process to be noticed by those in power. A blanket statement that no protests can take place in a public way without regard to the aforementioned particular facts and circumstances risks overlooking the skewed power structures that plague India’s social and political landscape. Indeed, one may argue that these facts were not brought to the notice of the Court. However, strikingly, the Court’s order does not even record which protestors were represented before it.

Interestingly, neither of the judgments relied on by the Court, such as Himat Lal Shah and Mazdoor Kisan Shakti Sanghatan actually support such a blanket proposition against protests on public ways.

Instead, both stress the need for executive authorities to ensure that permission to protest is not denied arbitrarily, especially based on the content of the protest. The Court in the present case, despite holding that protests should be carried out in designated places, did not take note of the observation of the Court in Mazdoor Kisan Shakti Sanghatan, where it had opined that designated spots such as Ramlila Maidan are situated in Old Delhi and far from corners of power. In not doing so, the Court missed an opportunity to further engage with the issue of absence of sufficient places to protest in the capital.

Expanding Restrictions, Shrinking Rights

Ultimately, the task before the Court was to evaluate whether the protests were being carried out in a manner so as to impinge grounds such as ‘public order’, which is a ground recognised under Article 19(2) and Article 19(3), or whether the protests are violating another competing right. In this regard, the Court’s analysis seems absent.

The Court asserts that an “attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters.”

The Court does not elaborate on what fundamental rights of commuters were being violated by the blockage of the road by the protestors.

In the absence of any particular finding on the specific harm caused to the public, the Court appears to have elevated the right of the general public to not be inconvenienced to the status of a fundamental right. This is particularly dangerous given the multiple reports that the aggravated inconvenience caused to the public was attributable to the fact that the police had blocked the roads surrounding the Shaheen Bagh area.

Equally, there is no finding by the Court that the inconvenience caused to the commuters amounts to a violation of public order.

Shaheen Bagh Verdict: What’s Missing From Supreme Court’s Reasoning?

The Supreme Court, in its jurisprudence under Article 19, has consistently distinguished between matters of ‘law and order’ and ‘public order’, with the latter being understood as requiring a higher threshold to activate. Mere inconvenience in the absence of findings about the nature and extent of inconvenience cannot be exalted to a threat to public order.

Strangely, the Court goes on to also note that the fundamental right to protest would be subject to “regulation by the concerned police authorities.”

By adding this new ground of restriction, the Court, rather than upholding rights, ends up frustrating the framers’ purpose of expressly laying down specific grounds.

What is entirely missing from the Court’s reasoning is any discussion as to the purpose of the right to protest and how any restriction on this right must be reasonable.

This exercise would entail an examination of whether the regulations were being applied in a fair and constitutional manner as per the Court’s jurisprudence on what amounts to a reasonable restriction.

Earlier this year, the Supreme Court tellingly cautioned “it would be useful to remind oneself that the rights which the citizens cherish deeply, are fundamental – it is not the restrictions that are fundamental.” This will perhaps make it difficult for this judgment to find a home in India’s fundamental rights jurisprudence.

(Vikram Aditya Narayan and Jahnavi Sindhu are Delhi-based advocates. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)