What Does SC’s Shaheen Bagh Verdict Mean for Our Right to Protest?

Karuna Nundy, Prashant Bhushan and Dushyant Dave weigh in on how the court contradicts itself and international law.

(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.)

In a short judgment regarding the petitions filed earlier in the year against the Shaheen Bagh protests, the Supreme Court has held that “public ways and public spaces cannot be occupied in such a manner and that too indefinitely.” While acknowledging the right to dissent, the court stated that “demonstrations expressing dissent have to be in designated places alone.”

Noting the inconvenience caused to commuters by the protesters at Shaheen Bagh, the judges go on to say that “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.” (emphasis added)

While the court didn’t pass any adverse orders against the protesters at the site, which became a symbol of the anti-CAA protests, it ended its judgment by saying that it hoped no such situation arose in the future, and that protests going forward should be subject to the legal position specified by them.

So, what does this mean for the right to protest of Indian citizens? Can there really never be any Shaheen Bagh-esque protests in the future, which occupy a public space or road to make a point? Will protests in Delhi, for instance, have to be restricted only to Jantar Mantar and Ram Lila Maidan?

Are Such Restrictions Even Allowed Under Indian Law?

The answer is not entirely clear. The court is essentially laying down a blanket ban on protests in public places (particularly public roads) unless those are designated areas for protests. But such a blanket restriction shouldn’t really be possible.

Says who, you might ask? Well, how about the Supreme Court itself?

In 1972, a Constitution Bench of the Supreme Court in the Himat Lal case held that while citizens cannot exercise their freedom to assemble peaceably in whatever place they please, but

“... nevertheless the State cannot by law abridge or take away the right of assembly by prohibiting assembly on every public street or public place. 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.”

(emphasis added)

Note that as a Constitution Bench of five judges, this judgment is binding and holds precedence over anything the three-judge bench in the Shaheen Bagh case (Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari) might say on a point of law.

What the court said in the Himat Lal case was that the right to assemble on a public street could be subject to a reasonable restriction in the interest of public order. But would a Shaheen Bagh-esque protest on the roads amount to a threat to public order?

“There is a long line of Supreme Court judgments that define public order – public order is not the disruption of traffic,” explains Supreme Court advocate Karuna Nundy. “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.”

So basically, a peaceful protest in a public space, even one on a public road, doesn’t necessarily amount to a threat to public order. And if it doesn’t amount to a threat to public order, then there is no basis in law for it to be restricted. Yet the Supreme Court’s judgment seeks to do precisely that, while, bizarrely, quoting the Himat Lal case to support itself.

“The problem here is that these blanket statements are a problem,” Nundy says. “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.”

The Position in International Law

This all-encompassing ban on protests in public spaces except designated areas doesn’t just go against the court’s own judgments from the past, it also runs contrary to international law.

A UN Special Rapporteurs’ report on the right to freedom of peaceful assembly notes that while restrictions to the right of peaceful assembly can be made in the interest of national security or public order, these must be lawful, necessary and proportionate to the aim pursued. It also notes that these restrictions are to be the exception, not the norm, and, very importantly, that they “must not impair the essence of the right.”

“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.”

UN Special Rapporteurs’ Report dated 4 February 2016 (at para 30)

The report also says that if the State invokes protection of public order as a reason to restrict a protest, then it has to prove the “precise nature of the threat and the specific risks posed.” This was also something laid down by the Supreme Court in January this year in the Anuradha Bhasin judgment (on the restrictions in Jammu and Kashmir), Nundy points out.

Fascinatingly, as Nundy points out, the UN Special Rapporteurs also state that assemblies are an equally legitimate use of public space as commercial activity or the movement of vehicles and pedestrian traffic, with their report saying:

“Any use of public space requires some measure of coordination to protect different interests, but there are many legitimate ways in which individuals may use public spaces. A certain level of disruption to ordinary life caused by assemblies, including disruption of traffic, annoyance and even harm to commercial activities, must be tolerated if the right is not to be deprived of substance.”

Indeed, under international law, there is even a duty on States to facilitate the right of peaceful assembly, including providing traffic management and protect the safety of those who participate in peaceful protests – a particularly pertinent point given the attempts to cause trouble at Shaheen Bagh by gunmen including the infamous Kapil Gujjar.

Again, this doesn’t mean that there can’t be any restrictions whatsoever, just that any restrictions have to be genuinely proportionate, and have to take into account the whole essence of the right to protest.

What Impact Will the Judgment Have on Future Protests?

Given the judgment goes far beyond what a Constitution Bench of the Supreme Court says it can, and violates international law, it is no doubt arguable that its observations on protests only being allowed in designated areas can’t actually be considered valid.

However, public interest advocate and activist Prashant Bhushan warns that it won’t be quite so easy. “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.”

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.

This was confirmed by the Supreme Court in the Mazdoor Kisan Sahakti Sangathan case from 2018. Again, strangely, the Justice Kaul-led bench in the Shaheen Bagh case has cited this judgment, even though it also goes against what they are trying to say.

Senior advocate Dushyant Dave also agrees that the court’s decision on Wednesday is likely to “please the majority and the Executive.” However, he also argues that this judgment will be impossible to implement.

“Every day political parties carry on their activities on public paces . Will the Govt act against them including the BJP as per the court’s directive . The protests against CAA were very important for over 150 million Indians who fear being outclassed from Citizenship. The court should have been mindful of that. In Hong Kong , Belarus and even USA, in recent past demonstrations have taken place all over the country including on public spaces.”

Dushyant Dave, Senior advocate

At the end of the day, legally speaking, future protests – as long as they are peaceful and do not create a threat to public order – should not be restricted only to designated areas, and should still be able to occupy public spaces.

Completely blocking a road for an extended period of time may eventually become an unacceptable impediment to freedom of movement, but this cannot be grounds to prevent any such protest right at the start. The court’s judgment in the Shaheen Bagh case cannot do this, not as long as Himat Lal remains good law.

It may also be arguable that the court’s observations in the Shaheen Bagh judgment only apply in situations where the protest is as large as at Shaheen Bagh, occupies a full road completely, and is going on for a long period time.

The problem, of course, is that pushing for all of this will depend on the protesters and their stomach for a fight, whether while peacefully resisting the police on the ground, who will try to use the judgment to justify themselves, or in a challenge in the Supreme Court itself.

It is unfortunate though, that the apex court, which is meant to protect fundamental rights, has created this confusion for those wishing to exercise their right to peacefully protest. As Dave says, “The court’s decision is self-contradictory. Where else will people protest? In their homes ? I feel the Supreme Court would have been well advised to steer clear of this issue.”