Author : Ujjwal Uberoi, Student at IMS Unison University.
Article 19(1)(a) & 19(b) of the Constitution of India gives the people residing in India, freedom of speech and expression and to assemble peacefully and without arms. But as it is said that no freedom is absolute, these freedoms also have restrictions. Clauses 2 and 3 allows the state to make laws in order to restrict these freedoms for maintaining foreign relations, sovereignty and integrity and public order of India.
The Government faced protests against the Citizenship Amendment Act in February, 2020. the most famous protest was the Shaheen Bagh protests. The present case was presented before the Supreme court of India by filing a special leave petition.
The petition was filed to remove the protestors from Shaheen Bagh and to know whether public places can be occupied by protestors.
FACTS OF THE CASE
After passing Citizenship Amendment Act by parliament, the act was met with both support and protests. The protests happened in Delhi and other parts of India. The bill was even challenged before the Supreme Court and is pending.
The plea was originally filed before Delhi High Court as Writ Petition (Civil) No. 429/2020, Which was disposed on very first day 14.01.2020. The high court directed the respondent to look into the grievance filed by the petitioner keeping the larger public in interest. According to high court the respondents do have power to control protests and agitations and clear the blocked roads therefore writ cannot be issued on how to control protests.
However the situation had remained unchanged therefore the petitioner filed special leave petition before the Supreme Court.
The Supreme Court had appointed two interlocutors Mr. Sanjay R. Hegde and Ms. Sadhana Ramachandran. Who went to the protest site to mediate between protestors and the Government.
They submitted a report before the court on 24.02.2020. According to them, the demands were very wide and it was difficult to find a middle path. Due to eruption of riots in parts of Delhi the court had to adjourn the proceedings. The number of protestors diminished overtime but still there were many people in Shaheen Bagh. Even after arrival of pandemic the protest still continued.
But due to spread of coronavirus the lockdown was enforced and greater sense prevailed in mind of protestors and the site was cleared with police help.
- Whether public places can be indefinitely occupied by protestors ?
Counsel Mr. Mehmood Pracha had said that “Right to protest was absolute as the constitution imposes restriction only in the case of maintaining public order and such restriction should be reasonable”.
Mr. Tushar Mehta learned Solicitor general referred to the case of Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr. Where the Supreme Court held that only state has power to make rules for controlling Right to dissent. It was also held that state cannot impose unreasonable restrictions like asking permission to hold public meetings.
In the case of Mazdoor Kisan Shakti Sangathan v. Union of India & Anr– The Supreme court ordered the police to devise a proper mechanism for use of Jantar Mantar as a protest area. Orders under CrPC 144 were being passed every time to prohibit using Jantar Mantar as protest site. Therefore the court directed the police to make Guidelines for using Jantar Mantar as protest site. The court also made observation that the manner in which right to dissent was used under colonial rule cannot be used in self ruled democracy. The constitution guarantees right to assemble peacefully without arms. This right is a very important right for a democracy and should be encouraged by the state. But this right comes with reasonable restrictions.
Walter Lippmann said “In a democracy, the opposition is not only tolerated as constitutional, but must be maintained because it is indispensable”.
The court also has said that public places cannot be occupied indefinitely. The democracy and dissent go hand in hand but demonstrations should be in designated places and the present protest was not even in a designated area it was blockage of roads and it caused problems to commuters. The court cannot accept the argument of applicants that people can assemble wherever they want for protest.
Justice K.K Matthew made observation in Himmat lal case that “Streets and public parks exist primarily for other purposes and the social interest promoted by the untrammeled exercise of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion”.
We live in the age of technology where information can be easily passed from one person to another. Technology contributes both to empower movements and to weaken them. Both of which were witnessed at Shaheen Bagh. The court held 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”. The Delhi High court also should have monitored the protests instead of disposing the petition and creating the fluid situation. The responsibility of administration should not hide behind the court orders.
The court hoped that such situation does not arise again in protests. The court also expressed appreciation to interlocutors and difficult role played by them.
The court perfectly highlighted the reasonable restriction that are imposed on right to dissent. But it is not clear that how long the public spaces can be occupied. Can the protest be cancelled because it will cause problems to commuters in future. Indefinitely occupying public places is not obviously acceptable but what will be the time period in which people will find it acceptable.
The Judgment was criticised by many people.
The Judgment has assumed that difficulties were caused to commuters. According to protestors it was police who blocked the road not them. This judgment can cause further restrictions for protestors. And the court has not cleared which sites will be used for protests. People also wondered that why this particular petition was given preference when many other are pending before the court.
The onus was on the court to identify why protestors were occupying Shaheen Bagh not any other place.
The protests even on one road does not harm public or causes threat to public order so there is no basis under which it should be restricted. But the supreme court judgment precisely does that. In future this judgment can be used to stop protests that are occupying public areas.
According to senior advocate Dushyant Dave “Every day political parties carry on their activities on public paces . Will the Govt act against them 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.”
Indefinitely blocking public spaces such as roads should not be acceptable but such reasons should not used to prohibit the protests in the first place.
The present case may play a big role in future protests.
 INDIAN CONST art 19
 (1973) 1 SCC 277
 (2018) 17 SCC 324
 V.Vekateshan, ‘Supreme Court’s Shaheen Bagh Judgment Will Lead to Fresh Curbs on Right of Peaceful Protest’ (the wire, 8 October 2020) <https://thewire.in/law/supreme-court-shaheen-bagh-judgment-fresh-cubs-right-of-peaceful-protest> accessed 23 October 2020
 Vakasha Sachdev, ‘What Does SC’s Shaheen Bagh Verdict Mean for Our Right to Protest?’(thequint, 8 October 2020),<https://www.thequint.com/news/law/supreme-court-shaheen-bagh-judgment-impact-right-to-protest-violation-of-sc-judgment-international-law-experts> accessed 23 October 2020