SC Dismisses Review Petition Against Shaheen Bagh Judgment

‘The right to protest cannot be anytime and everywhere’, rules SC bench which had delivered original verdict.

The Supreme Court on 9 February dismissed the review petition filed against its controversial Shaheen Bagh judgment, saying that there was no error with the original judgment, which had held that the right to protest cannot be used to occupy public spaces for long periods.

“The right to protest cannot be anytime and everywhere. There may be some spontaneous protests but in case of prolonged dissent or protest, there cannot be continued occupation of public place affecting rights of others.” 

SC’s order dismissing the review petition

The order was passed by a bench of Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari, the same judges who had heard the case and delivered the initial verdict on 7 October 2020.

The review petition had been filed in November 2020 by several women of Shaheen Bagh as petitioners, including one Kaniz Fatima.

Calling the Supreme Court’s October verdict ‘ambiguous’, they had argued that the apex court’s order could lead to abuse of power by the police and the government.

Grounds for Review

The petitioners had argued that by empowering the administration to take action and clear encroachments in cases where public spaces are blocked, the Supreme Court’s verdict offered “unrestricted sanction” to the police.

This was particularly concerning given police action against protesters in recent times, they argued, which meant the court was effectively giving the police “arbitrary discretion to attack any peaceful protester.”

The petition further argued that by providing the administration with the option of either engaging in negotiations or taking appropriate action, the state machinery would be tempted to act against those protesting its policies.

It added that in a liberal democracy, questions that deal with the threat to one’s personal citizenship cannot be left to the ‘mercy of political representatives’ in a manner which excludes protesters from choosing a location where their voices can be heard.

“It is submitted that propositions like holding protests at ‘designated places alone’ coming from judicial pronouncements shall upset the very concept of dissent and protests.”

Finally, the petition contended that by focusing excessively on regulation of protests by the administration, the right to criticise the government through peaceful assembly – guaranteed under Article 19 of the Constitution – is being ignored.

The Court’s Verdict in October 2020

On 7 October, the Supreme Court had held that the Constitution gives a right to dissent and protest, but that such protests cannot occupy public spaces, 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.”

The bench of Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari had been told during the arguments in the matter that the occupation of roads had been a method of protest during the freedom struggle as well. However, the judges had held that this cannot be equated with the current situation where India is a democracy.

The judgment had come in for criticism, given that it appeared to go against a binding decision by a Constitution Bench of the apex court itself in the Himat Lal case, which said that the right to protest on every public street or public place cannot be taken away.

“The problem here is these blanket statements,” Supreme Court advocate Karuna Nundy had told The Quint at the time. “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.”

Public interest advocate and activist Prashant Bhushan agreed, and warned of the way in which the authorities would misuse the court’s judgment: “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.”