The Supreme Court of India while pronouncing its judgment, reserved its judgment on the aspect of "the need to balance the right to protest with the right of mobility by other people" in the plea(s) which had sought an urgent direction for immediate dispersal of Shaheen Bagh Protesters or any other such sites amid the Pandemic situation.
The protesters at Shaheen Bagh were mostly women, opposing the Citizenship (Amendment) Act (CAA), National Register of Citizens (NRC) and National Population Register (NPR) since December 15, 2019.
A bench led by Justice SK Kaul orally remarked that the experiment which insinuated in Shaheen Bagh called for a short order to be passed in light of what ensued to be successful or not.
One of the petitioner’s stated that such kind of protests must not take place in the future. In return an advocate appearing for the intervenors submitted that, the most crucial aspect that persons from the ruling party went there and right to protest has to be balanced in a democracy. "Parties at some point in time went there to create a riot", it was further added.
At this juncture, Justice Bose stated that the Right to Protest has to be balanced with the right of the people to use a public road. For a long period of time a public road was blocked. "What about the right to use the road?" The intervening Advocated added to this by stating, for this purpose, a universal standard and policy had to apply.
Justice Kaul remarked, "There cannot be a universal policy. In a parliamentary democracy, there is a avenue of debate. The only issue is in what manner and where..and for how long and how to balance it."
Further SG Tushar Mehta argued that the Right to Protest was a fundamental right, albeit with reasonable restrictions. Another petitioner stated that the protesters can continue their protest after the threat of Corona Virus is over.
To spread more light on the scenario, a not very old remark of the Supreme Court can be remembered. In January, a bench of Justices SK Kaul and KM Joseph had issued notice on petitions seeking the clearance of the ongoing protests against CAA-NRC at Shaheen Bagh in Delhi. "There cannot be indefinite protests in common area. If everybody starts protesting everywhere, what will happen?"
IMPACT OF THE VERDICT ON OUR RIGHT TO PROTEST:
The Judges in their short judgment added 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 encroachment or obstructions."
While the Court did not pass an adverse order against the protesters at the site, which became a symbol of 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.
ARE SUCH RESTRICTIONS ALLOWED BY LAW?
• The Court is essentially laying down a ban on protests in public places, particularly public roads, unless there are any designated areas for protests.
• In 1972, a Constitution Bench of the Supreme Court in the Himat Lal Case had held that, while citizens cannot exercise their freedom to assemble peacefully in whatever place they please, the State cannot by law abridge or take away the right to assembly of each citizen and can only impose reasonable restrictions in the interest of the public order.
• A lot more Judgments of the SC can be added to the list.
• Karuna Nundy, a Supreme Court Advocate said, "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 violation of public order in Shaheen Bagh, indeed reading the judgement, it is not even recorded as being alleged. You cannot in a blanket manner spatially decide on prohibition of protests in advance, without considering the nature of the protest and who would be affected."
• The ban on protests in public spaces except designated areas is against the court’s own judgments from the past and contrary to International Law as well.
INTERNATIONAL LAW ON THE SAME:
• A UN Special Rapporteur ' s 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."
• 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) . The assemblies are an equally legitimate use of public space as commercial activity or the movement of vehicles and pedestrian traffic .
• 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 . Again this does not mean that there cannot be any restrictions.The restrictions have to be genuinely proportionate and the whole essence of right should be taken into account.
IMPACT OF THE JUDGMENT ON FUTURE PROTESTS: (Slide seven)
• P ublic 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 further 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.
• Senior Advocate Dushyant Dave says, "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. " The Court’s decision is self-contradictory, he added.
Can there really never be any Shaheen Bagh-esque protests in the future, which occupy public space? Where can Indians Protest now? Was Supreme Court’s decision right in restricting our right to protest? Let us know your views in the comment section below!