Demonstrations Expressing Dissent Have To Be In Designated Places Alone: SC

I have never in my life felt so happy as I feel now after reading this latest, learned, landmark and extremely laudable judgment titled Amit Sahni vs. Commissioner of Police & Ors. In Civil Appeal No. 3282 of 2020 in exercise of its civil appellate jurisdiction delivered on October 7, 2020 wherein it has cogently, commendably, courageously, credibly and convincingly observed that the right to peaceful protest against a legislation exists, but the demonstrations expressing dissent have to be in designated places alone. How can any person trample on the right of others and hold their life to ransom by blocking of road and blocking of rail tracks under the garb of fighting for one’s own rights? How can any government ever allow such thing to happen right under its very nose?

To be very frank, I developed strong sentiments against blocking of roads when I saw how my best friend Sageer Khan once way back in 1994 in my college days looked extremely disappointed and dejected after returning from a mosque. When I asked him the reason, he said that there was no space in mosque nor anywhere else except on road. I laughed and told him then that what is the harm in offering namaz on road like others? He suddenly became serious and said that he would never offer namaz on road as it would cause inconvenience to people and commuters which he was deadly against and not even for a short span of time would he ever block road under any circumstances! He also said: “No cause no matter how sacred it may be can ever justify blocking of road, rail and any other route meant for the people under any circumstances whatsoever. Full force must be used to remove those who ever dare to do so and they must be jailed for at least few years so that they never dare to do such a crime ever again under any circumstances.”

On the contrary, see how shamelessly, senselessly and stupidly Shaheen Bagh was blocked for more than 100 days! People especially sick faced huge inconveniences as even medical ambulances were blocked and many patients could not get the treatment in time! Centre is clearly guilty of inaction from which it cannot shrug of its responsibility by blaming Delhi government alone as Delhi is not even a State and Centre has full power to act in urgent cases like the one we saw here!

It is a national shame that the nation was held to ransom for such a long time and yet Centre did not take any strict nation to end the blockade of a road connecting Delhi and Noida and get them to vacate the road! No person of any religion should ever be allowed to ever block road or rail tracks as this is the surest recipe to anarchy and riots and this is what we witnesses in Delhi also as the protesters tried to replicate Shaheen Bagh experiment elsewhere also in other places which created huge resentment culminating in the worst riots seen in Delhi ever since 1984 anti-Sikh riots! How can Centre exonerate itself from its worst inaction on this?

Most intriguingly, at that point of time even Supreme Court did not order the prompt removal of these protesters. Had Supreme Court which is our last ray of hope acted promptly, Delhi would have been spared of the worst riots! The biggest lesson that Supreme Court must learn from this is that it should never appoint Committee to hold talks with those who break law themselves and should instead ask them to first stop the wrong doing themselves by vacating roads and only then should have listened to them!

Needless to say, appointing Committee was construed as a weakness and this alone explains why it yielded no result and even the overtures made by eminent and senior lawyers like Sanjay Hegde among others did not yield anything but frustration! It was the common man of all religions who bore the maximum brunt when the road was blocked. But now Apex Court has made it clear that public places cannot be occupied indefinitely. More accurately, I would say that no one should be allowed to block roads even for a short time as it encourages others to follow suit which under any circumstances cannot be ever justified!

Amit Sahni who is an advocate and who filed the appeal against blocking of roads in Shaheen Bagh deserves all the praise on earth for having taken the bull by the horns to ensure that a common man gets relief. Every good human being no matter to which religion he/she belongs who believes in “rule of law” must applaud him! The Apex Court was considering an appeal filed by him seeking to remove the protests against CAA-NRC at Shaheen Bagh, alleging that the protesters were blocking the roads, affecting the right of free movement of the public.

Interestingly enough, Amit Sahni had first approached the Delhi High Court highlighting the problems caused by the protests which led to the closure of the Kalindi Kunj-Shaheen Bagh stretch, including the Okhla underpass from December 15, 2019. Sahni very rightly contended that public roads could not be encroached upon in this manner and sought a court direction to clear the roads. The Delhi High Court, which heard the plea on January 14, 2020, disposed it the same day without any specific direction. It said Delhi Police had the powers, jurisdiction and authority to control traffic in the larger public interest wherever protests or agitations were on. It said it was up to authorities to take a call based on ground reality and the wisdom of the police. The Apex Court, however, said that is of the view that the High Court should have monitored the matter rather than disposing of the Writ Petition and creating a fluid situation.

To start with, Justice Sanjay Kishan Kaul authored this notable judgment for himself, Justice Aniruddha Bose and Justice Krishna Murari. It is first and foremost stated in the introductory para 1 that, “Our country made tryst with destiny on the midnight hour of 15th August 1947, shedding the colonial yoke. Despite the pain and turbulence of the partition, the best of the legal and political minds assembled together in the Constituent Assembly to give us one of the most elaborate and modern Constitutions.”

Needless to say, it is then stated in para 2 that, “One of the bedrocks of the Constitution of India is the separation of powers between the Legislature, the Executive and the Judiciary. It is the function of the Legislature to legislate, of the Executive to implement the legislation, and of the Judiciary to test the constitutional validity of the legislation, if a challenge is so laid.”

What next unfolds is then stated in para 3 on CAA that, “The Legislature, in its wisdom, enacted the Citizenship (Amendment) Act, 2019, which has its share of supporters and opponents. The Legislature performed its task. A section of the society, aggrieved by this legislative amendment, has filed petitions before this Court under Article 32 of the Constitution of India, assailing the constitutionality and legality of this amendment, which is pending consideration. There is no stay of the legislation for the purpose of record.”

Of course, it is then validly conceded in para 4 that, “There have been protests against this legislation in Delhi and in different parts of the country. We had noted in our order dated 17.02.2020 that despite the law facing a constitutional challenge before this Court, that by itself will not take away the right to protest of the persons who feel aggrieved by the legislation. We, however, simultaneously noted that the question was where and how the protest can be carried on, without public way being affected.”

To be sure, it is then put forth in para 5 that, “The aforesaid was in the context of a petition which was originally filed before the Delhi High Court, as Writ Petition (Civil) No. 429/2020, which was disposed of on the very first day, i.e., on 14.01.2020. The grievance made in the petition was that the persons opposing the Citizenship Amendment Act and the National Register of Citizens, the details of which were yet to be propounded, had adopted a method of protest which resulted in the closure of the Kalindi Kunj-Shakeen Bagh stretch, including the Okhla underpass from 15.12.2019. It was submitted that the public roads could not be permitted to be encroached upon in this manner and, thus, a direction be issued to clear the same.

To put things in perspective, what next ensues is then stated in para 6 that, “The High Court directed the respondent authorities to look into the grievances ventilated by the petitioner in the writ petition in accordance with the law, rules, regulations and Government policies, but simultaneously, it asked the respondent authorities to keep in mind the larger public interest as well as the maintenance of the law and order. It was also emphasized that the respondents had all the powers, jurisdiction and authority to control traffic wherever protests or agitations were going on, in the larger public interest. In such a situation, it was observed that no specific writ, order or direction can be issued as to how to handle the agitation or protest, or even the place of arrest and traffic, as the same would be determined based on the ground reality and the wisdom of the police, especially where situations may keep changing every 10 minutes.”

As it turned out, para 7 then unravels that, “However, since the situation remained the same, the petitioner therein filed the present appeal by way of a Special Leave Petition against this order of the High Court.”

It cannot be missed out that it is then observed in para 8 that, “We may note that intervention applications were also filed by parties claiming to have the best interests of the agitators in mind, or rather, having sympathy for them. In our order dated 17.02.2020, we had put to the learned counsel of one of these applicants our concern that there may be persons of different points of view who may tomorrow seek to emulate this protest and such a scenario would only lead to a chaotic situation. Such kind of protests were, thus, required to cease on public ways everywhere.”

It is beyond a straw of doubt that the concerns expressed then by the Court are now proving to be true. We are seeing for ourselves how farmers in some states like Punjab led by political workers have occupied rail tracks while opposing the farm laws recently enacted. How can this be ever justified in the grab of “dissent” and “protests”? How can burning of vehicles be similarly justified?

How can we forget that when protesters tried to replicate Shaheen Bagh type protests in different parts of Delhi, it culminated in Delhi riots which claimed so many precious, innocent lives as written in detail in Hindustan Times editorial dated October 8, 2020 and titled “On public protests, the SC is right” in which the key point that is underscored is that, “And what some saw as an effort to replicate Shaheen Bagh became the immediate trigger for the Delhi riots? All of this suggests that Indian democracy is best served when citizens freely express their views, mobilize and protest, but do so without undermining the rights of fellow-citizens” How can this be ever allowed to happen under any circumstances? Why was it allowed to happen? Why all the concerned authorities took things so lying down that they allowed protesters to block roads on Shaheen Bagh? India will slip into chaos if mob are allowed to block rail tracks and roads and Centre and States just keep thinking of their own political dividends if they take strict action!

While dwelling on the overtures made to the Shaheen Bagh protesters, it is then pointed in para 9 that, “In our endeavour of pursuing an out of the box solution, we had considered it appropriate to appoint two interlocutors – Mr. Sanjay R Hegde, learned senior counsel who was present in Court and Ms. Sadhana Ramachandran, who is a mediator trainer, to meet the protesters at the site. The interlocutors made appreciable effort and submitted a report before this court, which was taken note of by us on 24.02.2020. We had perused the report and found that the nature of demands was very wide and that it did look difficult to find a middle path towards at least facilitating the opening of the blocked public way. However, unfortunate development in other parts of Delhi required us to adjourn the proceedings.”

While exposing the dark underbelly of the Shaheen Bagh protests, the Bench then graciously concedes in para 10 that, “We had the benefit of a second report received on 22.03.2020 and perused the same. We believe that the interlocutors had done their best, but their efforts could not fructify into success, although the number of people at protest site had eventually diminished. The report suggested that the views reflected in private conversations with the protestors were somewhat different from the public statements made to the media and to the protesting crowd in attendance. While the women protestors had sat in protest inside the tent, there was a huge periphery comprising mainly of male protestors, volunteers and bystanders who all seemed to have a stake in the continuance of the blockade of the road. Even after the arrival of the pandemic, when a visit was made to the site on 20.03.2020, it was found that there were about 35-40 takhts inside the tent and each takht had 2-3 women occupying the space, resulting in a rough estimate of about 75-100 women inside the tent, as well as 200 or more outside the tent having a connection with the protest. While the tent was occupying half of the carriageway, the remaining half of the carriageway had been blocked by creating facilities such as library, a large model of India Gate and a big metallic three-dimensional map of India located upon a very strong metal scaffolding and was anchored by heavy stones making its removal very difficult. It appeared that an absence of leadership guiding the protest and the presence of various groups of protesters had resulted in many influencers who were acting possibly at cross-purposes with each other. Thus, the Shaheen Bagh protest perhaps no longer remained the sole and empowering voice of women, who also appeared to no longer have the ability to call off the protest themselves. There was also the possibility of the protestors not fully realising the ramifications of the pandemic, coupled with a general unwillingness to relocate to another site.”

Honestly speaking, the Bench then concedes in para 11 that, “We are conscious that we chartered a different path and thought of an out of the box solution towards an effort which can loosely be called a mediation. However, this does not produce a solution. But then, we have no regrets as we are of the view that it is better to try and fail, than not to try at all!”

While elaborating on the clearance of Shaheen Bagh site, the Bench then brings out in para 12 that, “The hand of God subsequently intervened and overtook the situation as not only our country, but also the world grappled with the Coronavirus pandemic. This pandemic, by its very definition, required coordination across the country and even beyond the borders of our country. This resulted in repeated appeals of the desirability of seclusion as a method to fight the disease. Greater wisdom prevailed over the protestors at the Shaheen Bagh site and the site was cleared, albeit with some police action to remove the aforementioned structures. The pandemic has, however, not seen its end and we are still battling with the same. Thus, really speaking, the reliefs in the present proceedings have worked themselves out.”

While adding further clarity to what is stated above, it is then made clear in para 13 that, “We, however, pen down a few more lines for clarity on the subject on account of its wider ramifications. Learned counsel for the applicants Mr. Mehmood Pracha has sought to canvass that there was an absolute right of peaceful protest, both in respect of space and numbers. He submitted that the right under Article 19(1)(a) and 19(1)(b) of the Constitution of India are only circumscribed by the provisions of Clauses (2) & (3), and the only applicable aspect would be ‘public order’, but such restriction must be reasonable in character. On the other hand, the appellant herein sought to contend that such a situation should be avoided in the future and some norms may be laid down.”

It would be pertinent to mention here that it is then stated in para 14 that, “Mr. Tushar Mehta, learned Solicitor General referred to judicial pronouncements to rebut the case sought to be made out by the applicants. In Himat Lal K Shah v. Commissioner of Police, Ahmedabad & Anr., [(1973) 1 SCC 227] a challenge was made to the rules framed by the Commissioner of Police, Ahmedabad, by the powers conferred under Section 33(1)(o) of the Bombay Police Act, 1951. One of these rules required prior permission to be taken for the holding of public meetings. The Supreme Court opined that the State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interests of public order. With regard to whether or not these rules violated Article 19(1)(b) of the Constitution of India, it was held that while the State cannot impose any unreasonable restrictions, a right to hold meetings on public streets was subject to the control of the appropriate authority regarding the time and place of the meeting and subject to considerations of public order. However, as the rule requiring prior permission of the concerned authority did not contain any guidance as to when such permission to hold a public meeting may be refused, it was found that the same conferred arbitrary powers and gave an unguided discretion to the concerned authority, and this was accordingly held to be ultra vires Article 19(1)(b) of the Constitution.”

While citing yet another relevant case law, it is then put forth in para 15 that, “In Mazdoor Kisan Shakti Sangathan v. Union of India & Anr., (2018) 17 SCC 324, this Court was concerned with regulating the aspect of demonstrations in the earmarked space by the concerned authorities at Jantar Mantar. The judgment endeavoured to emphasise on the principle of balancing the interests of the residents in the area vis-à-vis the interests of protestors to hold demonstrations at Jantar Mantar. The concerned police authority was directed to devise a proper mechanism for the limited use of the Jantar Mantar area for peaceful protests and demonstrations and to lay down parameters for the same. With regard to the orders being passed under Section 144 of the Code of Criminal Procedure, 1973 prohibiting activities like holding public meetings, processions, etc. in areas in and around the Parliament area, the Court noted that the tenor and language of such orders indicated that the concerned authority was to examine every request and take a decision as to whether it should or should not allow the proposed demonstration, public meeting etc., keeping in view its likely effect, namely, whether it would cause any obstruction to traffic, danger to human safety or disturbance to public tranquility, etc. However, as such orders were repeatedly being passed, the same were held to amount to create a situation of perpetuity, and also amounted to what would be equivalent to the “banning” of public meetings, demonstrations etc. The police and other concerned authorities were accordingly directed to formulate proper and requisite guidelines for regulating protests in and around the area.”

While giving some historical background, it is then laid bare in para 16 that, “India, as we know it today, traces its foundation back to when the seeds of protest during our freedom struggle were sown deep, to eventually flower into a democracy. What must be kept in mind, however, is that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy. Our Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. Article 19, one of the cornerstones of the Constitution of India, confers upon its citizens two treasured rights, i.e., 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 cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State. The same must be respected and encouraged by the State, for the strength of a democracy such as our lies in the same. These rights are subject to reasonable restrictions, which, inter alia, pertain to the interests of the sovereignty and integrity of India and public order, and to the regulation by the concerned police authorities in this regard (See In re Ramlila Maidan Incident, (2012) 5 SCC 1). Additionally, as was discussed in the Mazdoor Kisan Shakti Sangathan case, each fundamental right, be it of an individual or of a class, does not  exist in isolation and has to be balanced with every other contrasting right. It was in this respect, that in this case, an attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters.”

Quite remarkably, the Bench then observes most elegantly, eloquently and effectively in para 17 that, “However, while appreciating the existence of the right to peaceful protest against a legislation (keeping in mind the words of Pulitzer Prize winner, Walter Lippman, who said “In a democracy, the opposition is not only tolerated as constitutional, but must be maintained because it is indispensable”), we have to 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 present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest. Justice K.K. Mathew in the Himmat Lal case (supra) had eloquently observed that “Streets and public parks exist primarily for other purposes and the social interest promoted by 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.”

In addition, it is then made amply clear in para 18 that, “Furthermore, we live in the age of technology and the internet where social movements around the world have swiftly integrated digital connectivity into their toolkit; be it for organising, publicity or effective communication. Technology, however, in a near paradoxical manner, works to both empower digitally fuelled movements and at the same time, contributes to their apparent weaknesses. The ability to scale up quickly, for example, using digital infrastructure has empowered movements to embrace their often-leaderless aspirations and evade usual restrictions of censorship; however, the flip side to this is that social media channels are often fraught with danger and can lead to the creation of highly polarized environments, which often see parallel conversations running with no constructive outcome evident. Both these scenarios were witnesses in Shaheen Bagh, which started out as a protest against the Citizenship Amendment Act, gained momentum across cities to become a movement of solidarity for the women and their cause, but came with its fair share of chinks – as has been opined by the interlocutors and caused inconvenience of commuters.”

Bluntly put, as a corollary, it is then held clearly, cogently and convincingly in para 19 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.”

What’s more, it is then also held in para 20 that, “We are also of the view that the High Court should have monitored the matter rather than disposing of the Writ Petition and creating a fluid situation. No doubt, it is the responsibility of the respondent authorities to take suitable action, but then such suitable action should produce results. In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support therefrom for carrying out their administrative functions. The courts adjudicate the legality of the actions and are not meant to give shoulder to the administration to fire their guns from. Unfortunately, despite a lapse of a considerable period of time, there was neither any negotiations nor any action by the administration, thus warranting our intervention.”

On an optimistic note, the Bench then opines in para 21 that, “We only hope that such a situation does not arise in the future and protests are subject to the legal position as enunciated above, with some sympathy and dialogue, but are not permitted to get out of hand.”

Going ahead, it is then envisaged in para 22 that, “We, accordingly, close these proceedings, once again expressing our appreciation of the difficult roles played by the interlocutors.”

Finally, it is then held in the concluding para 23 that, “The Civil Appeal stands disposed of, leaving the parties to bear their own costs.”

To conclude, the bottom-line of this noteworthy ruling is that public ways and public spaces cannot be occupied and that too indefinitely! It conceded that while dissent and democracy go hand in hand, protests in public places for an indefinite period of time are unacceptable! There has to be zero tolerance for anyone occupying public space or public ways like roads, rail tracks etc and anyone who dares to still do so must be immediately made to evacuate and must be prosecuted for causing inconvenience to others! Supreme Court has clarified the entire matter in detail as we have already discussed above! So now nothing more remains to be said on this!

Sanjeev Sirohi