Critical Analysis of the Shaheen Bagh Judgment

shaheen bagh

By Gaurika Singh

Introduction

In December 2019, the legislature enacted The Citizenship (Amendment) Act, 2019 [1]. Opponents of this legislation, who considered it discriminatory, filed petitions against it in the Supreme Court under Article 32 of the Constitution of India [2]. The constitutionality and legality of the amendment were in question. There were protests all over the country against this legislation, especially in Delhi.

In an order dated 17.02.2020, the Supreme Court noted that the right of the people, who are aggrieved by the legislation, to protest against it, would not be taken away by the mere fact that the legislation was facing a constitutional challenge in the Supreme Court. It also noted that the question, however, was where and how the protests could be conducted such that they did not affect public ways.

This order was in the context of a writ petition. The grievance of the people was that the protestors opposing the National Register of Citizens (NRC) and Citizenship Amendment Act (CAA) were protesting in a manner that led to the blockage of the Kalindi Kunj- Shaheen Bagh route. It was submitted that a direction to clear the roads should be issued. Therefore, the High Court had ordered for the authorities to investigate the grievances and take care of the larger public interest as well as maintaining law and order.

It also stressed that the respondents had the authority, jurisdiction, and power to manage traffic on protest and agitation sites, in the interest of the larger public. Therefore, in a situation like this, a specific writ, order, or direction about handling the agitation or protest, or the place of protest and traffic, could not be issued. The situation of traffic and other related things would have to be determined on the basis of the ground reality and the wisdom of the police, especially in a place where the situations may keep changing every 10 minutes or so.

However, the situation on the protest site did not change. Therefore, the petitioner filed a Special Leave Petition in the Supreme Court against the order of the Delhi High Court.

The Supreme Court then appointed two interlocutors – Mr. Sanjay R. Hegde and Ms. Sadhana Ramachandran, to meet the agitators at Shaheen Bagh. Both the interlocutors made significant efforts to resolve the matter but their attempts did not succeed.

Moreover, the protestors were unwilling to move to another site. They did not fully realize the consequences of the coronavirus either. However, as the pandemic worsened, the protestors cleared Shaheen Bagh. Nonetheless, the Supreme Court decided to lay down some lines for more clarity on the subject due to its wide ramifications.

What Were The Issues Before The Court?

The issues before the court were-

(i) Whether the protestors had the right to protest under Article 19(1) (a) and Article 19(1) (b) of the Indian Constitution in such a way that it restricted public movement;

(ii) Whether the right to protest is absolute as opposed to the right to mobility of a citizen;

(iii) Where and how could the protests be held without affecting public ways.

Contentions From Both Sides

Mr. Mehmood Pracha, who was the learned counsel for the applicants, argued that the protestors had an absolute right to peaceful protest, both concerning the numbers, and the space. It was submitted that the rights under Articles 19(1) (a) and 19(1) (b) of the Indian Constitution are only restricted by the provisions under Clauses (2) & (3). The only applicable aspect in this case would be public order, but a restriction of this kind ought to be reasonable in nature.

On the other hand, the appellant (Amit Sahni) in this case argued that a situation like this should be avoided in the future and some rules should be laid down
regarding this.

The learned Solicitor General, Mr. Tushar Mehta, used judicial precedents to rebut the arguments of the applicants- In the case of Himat Lal K. Shah v Commissioner of Police [3], the rules created by the Commissioner of Police of Ahmedabad, through the powers conferred to him under Section 33(1) (o) of the Bombay Police Act, 1951, were challenged. One of these rules stated that people would need to take prior permission before holding any public meetings or gatherings.

The Supreme Court was of the opinion that the State can only impose reasonable restrictions on the right of assembly of people, in the interests of public order. It was held that the right to hold public meetings on streets is subject to the ruled or guidelines laid down by the appropriate authority and subject to requirements of public order, especially with regard to the time and place of the meeting.

However, in this case, the Supreme Court also noticed that the provision which contained the requirement of a prior permission of the police authority was very vague and did not mention any specific conditions as to when the permission to hold a public meeting could be withheld. It gave the authorities unbridled and arbitrary power and an unrestrained discretion to refuse permission and not allow any public meeting to be held. Therefore, these rules were held to be in contravention of Article 19(1)(b) of the Constitution.

The case of Mazdoor Kisan Shakti Sangathan v. Union of India [4] was regarding the regulation of protests in Jantar Mantar. The judgment by the Supreme Court stressed on the principle of balancing the interests of the residents of the area and the demonstrators. The court ordered the concerned authority to lay down parameters for using Jantar Mantar for peaceful protests in a restricted manner. The Court also stated the authorities should look into every request carefully and take a decision based on the probable effects it would have on traffic, human safety and public peace and tranquillity.

However, in this case, as these orders were being passes repeatedly, they were tantamount to a complete blanket ban on public meetings, protests, and demonstrations. The police were thus ordered to devise an appropriate mechanism and guidelines for the regulation of protests in the area.

What Does Article 19 State?

  1. Article 19(1) (a) of the Indian Constitution states that all citizens have the right to freedom and expression. [5]
  2. Article 19(1) (b) states that all citizens have the right to assemble peacefully, without
    arms. [6]
  3. Article 19 (2) states that the right given in Article 19(1)(a) is subject to the any law that imposes reasonable restrictions on the exercise of this right. Such law has to be in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
  4. Article 19(2) states that right given under Article 19(1)(b) is subject to any law that imposes reasonable restrictions on the exercise of this right in the interests of the sovereignty and integrity of India or public order.

The Judgment

In the present case, the court made a distinction between pre-independence and post-independence India. It sought to clarify that the mode and manner of dissent against the British rule in colonial India cannot not be equated with the kind of dissent that exists in a self-ruled democracy like India. The Constitution of India envisions within itself the right to protest and express dissent, but that right comes with an obligation that the citizens have towards certain duties.

Article 19, one of the keystones of the Indian Constitution, grants its citizens two crucial rights- the right to freedom of speech and expression under Article 19(1) (a) and the right to assemble peacefully without arms under Article 19(1) (b). These rights, in unison, enable all citizens to gather peacefully and protest against the actions or inactions of the State. The strength of our democracy lies in these rights. Thus, they need to be respected and even encouraged by the State.

However, the rights given under the aforementioned articles are not absolute in nature and are limited by certain reasonable restrictions. These restrictions refer to the interests of the sovereignty and integrity of India, public order, and regulation by the concerned police authorities. [7] Moreover, fundamental rights, whether of an individual or of a class, have to be balanced with all other contrasting rights, because they do not exist in isolation. In the case of Mazdoor Kisan Shakti Sangathan v. Union of India [8], the need to balance the rights of the protestors with those of the commuters was recognized.

In the present case, while the court appreciated that the people had a right to peacefully protest against a legislation [9], it also made it categorically clear that public roads, pathways and other spaces could not be occupied the way Shaheen Bagh had been occupied, and that too indefinitely.

While Democracy and dissent are inseparable, demonstrations and protests showing dissent have to be in designated places alone. The court observed that in the present case, the people were not only protesting in an undesignated site, but they were also blocking public roads and causing grave inconvenience to the commuters.

Moreover, the court rejected the applicant’s plea that an unlimited number of people could assemble to protests wherever they wanted to. In the case of Himat Lal K. Shah v. Commissioner of Police [10], Justice K.K. Mathew had articulated that the existence of public parks, streets, and roads is for other purposes. The social interest that is protected by the regulation of speech is greater than the social interest promoted by unbridled exercise of freedom of speech and assembly in public places.

The court also noted the constitutional difference that exists between reasonable restriction and arbitrary exclusion. In the age of the internet and swiftly advancing technology, social movements the world over have largely been propelled by digital connectivity. Technology is being used for organising protests, and effectuating publicity communication. However, technology works paradoxically by both fuelling and empowering movements digitally and becoming their apparent weakness. While technology can scale up movements in a very short time, and fulfil their leaderless aspirations, social media also runs the risk of creating extremely polarised environments, which have parallel conversations with no conclusive outcome in sight.

The court opined that the movement in Shaheen Bagh also met with the same fate. While it had started as a movement against the Citizenship Amendment Act, it gained momentum in different cities and became a movement for women’s solidarity and supported their cause. But it had a fair share of chinks, as noticed by the by the interlocutors, and caused inconvenience of commuters.

Thus, the Supreme Court concluded without hesitation that the occupation of public spaces in such a manner, whether at the particular protest site in question, or anywhere else for that matter, for the purpose of protests, is completely unacceptable. It is the duty of the administration to take swift action against this and keep the areas clear of obstructions and encroachments. The court was of the view that the High Court should have kept a check of the matter and monitored the situation rather than disposing of the Writ Petition.

Further, the court said that even though it was undoubtedly the responsibility of the appropriate authorities to take suitable action, the action should also have produced results. The administration should not seek support from court orders to carry out their functions. The manner in which they act is completely their responsibility. The only duty of the courts is to review the legality of the administrative actions. It is not upon the court to give the administration a shoulder from which they can fire their guns.

However, in the present case, there was no negotiation carried out or action taken by the administration even after a long period of time. Thus, the court had to intervene. The court hoped that such a situation should not arise in the future and protests are within the confines of the legal position that has been laid out in the present case. There should be sympathy and dialogue, but protests should not get out of hand.

Critical Analysis

In the present case, the Supreme Court looked at the two articles of the constitution- Article 19(1) (a) and Article 19(1) (b)- which give the citizens the right to freedom of speech and expression and right to assemble peacefully. However, these rights are subject to reasonable restrictions on several grounds, one of them being public order. Since the Shaheen Bagh protests led to blockage of public roads, the court considered it as a breach of public order.

Therefore, it was held that rights of protestors have to be balanced with the rights of commuters, and people should only protest in designated places. As reasonable and logical as this judgment sounds, there are a number of loopholes in the court’s understanding of this case, which I have tried to highlight below:

1. Wrong Premise

The court had framed the following question or issue for itself which had to be resolved in this case- “where and how can protests be carried on without blocking public ways.” This question is based on a wrong premise- that protests indeed can be carried out without affecting public ways. In fact, no effective protest can be carried out without inconveniencing the public in some way or the other. For the purpose of a protest, it is a prerequisite for the protestors to lay claim to a certain amount of public space, whether it be a public road or a square. Only then does the fundamental right to protests hold any meaning. A public protest wouldn’t be called so if it were not in a public space. All major protests in history have occupied public spaces, like the Tahrir Square Protests, Tiananmen Square Protests or Occupy Wall Street. [11]

Therefore, in times of such protests, other people, who are equally entitled to use the public space, will have their liberty impeded. The solution to this should be for the protestors and commuters to negotiate a compromise collectively, which should be brokered by the government and must ensure law and order. The Court should not intervene or establish a set of legal rules applicable in all conditions, no matter where and how the protests can take place.

Another wrong premise in the judgement is that the only purpose of protest is to express dissent against a policy or a decision of the government. However, protests are not only an expression of dissent. They are a means of representation for the oppressed classes of the society who do not have a voice otherwise. Protests are the only way that they can get themselves heard. The Shaheen Bhagh protests were being led by Muslim women, who are a minority. Another example is the recent protests by farmers who have been suffering in our country for a very long time.

These people protest because the executive often fails to take adequate action and meaningfully engage with the them to reach a solution. Considering this, it is clear that the judiciary has failed to secure the right of the citizens to protest peacefully.

2. Non-binding Judgment

The only part of a judgement that is binding is the ratio decidendi. It is that principle of the judgement on which the case has been decided. However, in the present case, there seems to be no ratio decidendi whatsoever. This is because there was no case in the first place that had to be decided. The protests site had already been cleared due to the COVID-19 pandemic. Even the court admitted that “thus really speaking, the reliefs in the present proceedings have worked themselves out” [12].

The court should have disposed of the petition without giving any judgement. Since there is no case, there is no ratio decidendi. Hence, the entire judgement seems to be obiter dicta and is not binding on future cases. [13]

3. Lack of Factual Foundation

The court said that there was a need to balance the rights of the protestors and the commuters. However, it did not elaborate or define what grave inconvenience was being caused to the commuters. It did not examine whether there were any alternate routes available and if they were, how much longer would the commuters take to reach their destination through those routes. It also failed to take into account the number of people who were being affected by the situation.

Moreover, it did not look into whether the roads close down by the Delhi police actually needed to be close. Therefore, the court failed to establish the connection between the protests and the inconvenience caused to the commuters. The connection has just been assumed without any factual foundation.

4. Restriction Not Reasonable

The final decision of the court was that protests should only be in designated places. Through this, the court has regulated the means and ways of demonstrating dissent. But the court did not elaborate upon the state’s role in defining those designated places. Through what mechanism would the state decide which places are conducive to protests and which are not? What would be the criteria based on which a site would be designated for protests? These questions have been left unanswered and create an atmosphere of confusion.

It is indeed ironical for the state to have such a large control over protests which express dissent against
itself. If the State is to have unbridled and absolute power over deciding the designated sites, then it could simply refuse for those protests to happen which are inimical to its interests. This would act as a blanket ban on protests, and the entire purpose of Article 19 would be defeated.

Moreover, it is the role of the legislature and executive to impose these reasonable restrictions on the rights. The role of the judiciary [14] is to only review the constitutionality of those restrictions. The judiciary can’t impose those restrictions by itself. Regretfully, that is exactly what has happened in the present case. The judiciary has imposed a restriction on the right to protest by deciding that protests can only take place in designated places.

Furthermore, the court unequivocally held that “public ways and public spaces cannot be occupied in such a manner and that too indefinitely” [15]. There is a lot of ambiguity in the phrase “in such a manner”. Even though it refers to the situation at Shaheen Bagh, the court did not specify exactly what kind of protests are disallowed- the ones that go on for a long time, or set up tents on roads, or block a particular kind of road. The word “indefinitely” is also vague. The court did not elaborate the exact or approximate period of time after which a protest would be called indefinite. Therefore, the court did not even try to justify that the restriction that it had imposed passed the test of reasonability.

There is also the question of whether the disruption of traffic would fall within the ambit of ‘public order’. A situation like a riot or a large-scale assault on the state which becomes a threat to the very rule of law, would qualify as a breach of public and not something like traffic disruption. There is no evidence either, that would conclusively prove that there was a breach of public order at the protest site. [16]

Position in International Law

The judgement by the court, which virtually banned protests in all but designated sites, is contrary to International Law. The UN Special Rapporteurs’ Report of 2016 states that the restrictions imposed on the right to protest must be lawful, necessary and proportionate to the cause. The restrictions must not exhaust the very essence of the right. It further says that blanket bans or bans in particular places or at specific times are disproportionate.

In the present case, the court held that protests can only be carried out in designated rights, which means that people can’t protest in sites that are not designated for protests. Therefore, there is a ban to protests in certain places, which is neither necessary nor proportionate. The report further states that if the State uses violation of public order as a reason for imposing restriction, it must clearly specify the nature of threat and risk to public order. This was also laid down in Anuradha Bhasin v Union of India [17].

However, the court failed to specify what threat was being posed to pubic order. The only reason mentioned was inconvenience to public due to traffic disruption. The court didn’t elaborate on how it classified as a breach of public order.

Under international standards of democracy, there is also a presumption that the use of public spaces for protests is as legitimate as other uses of those spaces. The European Court of Human Rights also established that there should be a “certain degree of tolerance” towards disruption that is caused to ordinary life due to demonstrations “if the freedom of assembly is not to be deprived of all substance” [18].

Therefore, the state should have displayed tolerance towards the disruption of traffic near Shaheen Bagh. Under international law, the States also have a duty to facilitate peaceful assemblies. The state has to provide traffic management and protect the safety of the protestors.

Present Status of the Case

In February 2021, the Supreme Court dismissed a review petition filed against this case. The petition was filed by a collective group of protestors, led by Kazi Fatima. They argued that protests are the only way for citizens to express dissent and the judgement would lead to the police removing protestors from protest sites arbitrarily.

However, the three-judge bench led by Justice Sanjay Kishan Kaul refused to review the previous judgement given on 7th October 2020, as they did not find any error in it. The reason given for the same was that “the right to protests cannot be anytime and anywhere.” [19]

Conclusion

The judgement given by the Supreme Court in the case of Amit Sahni v. Commissioner of Police is a disappointing one. The court has gone beyond its powers by imposing unreasonable restrictions on these fundamental rights. The court failed to understand that public protests need public spaces and they can never be carried out without causing certain inconvenience to the public.

By holding that protests can only be held in designated places, the court placed unrestrained power in the hands of the authority to allow or deny permission to protests, as per their whims and fancies. Therefore, the court failed in balancing the rights of protestors and commuters as it did not delineate the criteria on the basis of which the state would decide the legal acceptability of protest sites.

References:

  1. Citizenship (Amendment) Act, 2019, No. 47, Acts of Parliament, 2019 (India)
  2. INDIA CONST. art. 32
  3. Lal K. Shah v Commissioner of Police, (1973) 1 SCC 227
  4. Mazdoor Kisan Shakti Sangathan v Union of India, (2018) 17 SCC 324
  5. INDIA CONST. art. 21, § 1, cl. 1
  6. INDIA CONST. art. 21, § 1, cl. 2
  7. In re Ramlila Maidan Incident, (2012) 5 SCC 1
  8. Mazdoor Kisan Shakti Sangathan v Union of India, AIR 2018 SC 3476
  9. In keeping with the words of Walter Lippmann, a Pulitzer Prize winner, who said that “in a democracy, the opposition is not only tolerated as constitutional, but must be maintained because it is indispensable”.
  10. Himat Lal K. Shah v. Commissioner of Police, AIR 1973 SC 87
  11. Arghya Sengupta, Good Intentions, Wrong Choice: Forget Shaheen Bagh. Supreme Court Should Rule on CAA’s Legality, without Fear or Favour, TIMES OF INDIA BLOG (April 30, 2021, 9:00 am), https://timesofindia.indiatimes.com/blogs/toi-edit-page/good-intentions-wrong-choice-forget-shaheen-bagh-supreme-court-should-rule-on-caas-legality-without-fear-or-favour/
  12. Amit Sahni v Commissioner of Police, (2020) 10 SCC 439
  13. Narbada Prasad v Awadesh Narain, AIR 1973 MP 179
  14. Union Colliery Co. of British Columbia Ltd. v Bryden, 1899 A. C. 580; Brajnandan Sharma v State of Bihar, AIR 1950 Pat 322
  15. Amit Sahni v Commissioner of Police, (2020) 10 SCC 439
  16. FIRST POST, https://www.firstpost.com/india/sc-verdict-on-shaheen-bagh-leaves-much-to-interpretation-will-have-far-reaching-impact-on-protests-8893971.html (last visited April 30, 2021)
  17. Anuradha Bhasin v Union of India, (2020) SCC Online SC 25
  18. European Court of Human Rights, Ashughyan vs. Armenia, Application. No. 33268/03 (2008); ECJ, Eugen
  19. Schmidberger vs. Republic of Austria, Case C-112/00, (2003)

1 thought on “Critical Analysis of the Shaheen Bagh Judgment”

  1. The author of the article has utterly failed in writing a critical analysis. The basic principle is not understood by the author, which the author has given in the first point of the analysis and which should have been eloborated if it was believed by the author or in the similar way as it was demanded from the judgement. The other points seems like supportive points to just complete a critical analysis. The article has failed in its content.

    Reply

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