Shaheen Bagh: Are Protests Allowed on Public Road? Past Judgments When SC Didn’t Abdicate Responsibility to

Kusum Tewari

New Delhi: Earlier this month, when it was hearing a matter relating to road blockades due to the Shaheen Bagh protests, the Supreme Court expressed apprehensions on what if another section, for some other cause, takes the same path. The bench of Justices Sanjay K Kaul and KM Joseph had remarked that the indefinite protests on roads cannot be permitted.

But when the highest court of the land passed its first effective order in the matter after a week, it seemed to have abdicated its responsibility to the ‘interlocutors’, nominated by the bench, ostensibly on the spur of the moment.

“We only want laws to be followed…We don’t worry about the outcomes of our orders which must uphold the majesty of law…It is for the State to maintain law and order”. These are some of the comments often made by the judges in the Supreme Court, and are also incorporated by them in innumerable judgments.

However, these issues of law and order, role of a constitutional court and the scope of the petitions in question were apparently given a go by when the bench dealt with the Shaheen Bagh matter and chose the route of negotiation and mediation.

The judges, promptly and rightly so, spoke about the people’s fundamental right to protest even when the legal validity of the controversial legislation in question, namely Citizenship Amendments Act (CAA), remained disputed before the Supreme Court in separate proceedings.

But the judges did not mention about the ‘reasonable restrictions’ attached as a latent condition to the exercise of this right. The judges also did not discuss about whether others’ right to feely move on a public road can be curtailed by another section and what happens when the two sections with diametrically opposite views clash while asserting the same right – exactly what the Delhi is witnessing right now.

The national capital, in the last two days, has seen confrontations between pro-CAA and anti-CAA groups and warnings of more sit-in protests at public spaces while the apex court is yet to decide its future course of action on Shaheen Bagh’s protests.

Are protests allowed on public roads? If yes, how and when they can be allowed? How are the courts to act when these issues come up?

A series of judgments starting from the Privy Council’s decisions may come handy to clarify all this.

Way back in 1950, the Privy Council held in Manzur Hasan Vs Muhammed Zaman: “In India, there is a right to conduct a religious procession with its appropriate observances through a public street so that it does not interfere with the ordinary use of the street by the public, and subject to lawful directions by the magistrates.”

Later in Saghir Ahmmad Vs State of U.P., 1955, the Supreme Court defined the characteristics of a public roads when it stated as: “The true position then is, that all public streets and roads vest in the State, but that the State holds them as trustees on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as trustees on behalf of the public is entitled to impose all such limitations on the character and extent of the user, as may be requisite for protecting the rights of the public generally.”

In Railway Board Vs Narinjan Singh (1969), the Supreme Court held that there is no fundamental right for anyone to hold meetings in government premises. It was observed: “The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please.”

The specific issue of protests on public streets had also come up before the Supreme Court, perhaps for the first time, in 1972 when a Constitution Bench, in Himat Lal K Shah Vs Commissioner of Police, Ahmedabad, ruled that the right that flows from Article 19 (1) is not a right to hold a meeting at any place, at any time.

In this verdict, the five-judge bench had held as: “We may make it clear that there is nothing wrong in requiring previous permission to be obtained before holding a public meeting on a public street, for the right which flows from Article 19 (1) (b) is not a right to hold a meeting at any place and time. It is a right which can be regulated in the interest of all so that all can enjoy the right.”

The top court concluded in this ruling that “in India a citizen had, before the Constitution, a right to hold meetings on public streets subject to the control of the appropriate authority regarding the time and place of the meeting and subject to considerations of public order.”

If we consider the recent judgments on the rights to protest, in Anita Thakur Vs State of J&K, 2016, the Supreme Court held that right to protest is a fundamental right but these rights are subject to reasonable restrictions in the interest of the sovereignty and integrity of India, as well as public order. “It is for this reason, the State authorities many a times designate particular areas and routes, dedicating them for the purpose of holding public meetings,” said the top court.

Again, in Bimal Gurun Vs Union of India, 2018, the Supreme Court had held that demonstrations whether political, religious or social or other demonstrations “which create public disturbances or operate as nuisances”, or create or manifestly threaten some tangible public or private mischief, are not covered by protection under Article 19(1).

In 2018, in yet another judgment, the top court had the opportunity to decide a clutch of cases relating to demonstrations at certain specific spots in the national capital.

Speaking about the protests at Jantar Mantar, the two-judge bench had then maintained: “During the course of heavy protest day, the police completely blocks the road of Jantar Mantar by barricading, which coerces the residents of the area to park their vehicles elsewhere and make way to their residences on foot. This becomes extremely difficult for senior citizens and small children. In fact, there had been instances of medical emergencies where police had to plough the ambulance through the vehicles of the protestors, the police and the crowd. The presence of large number of people as well as vehicles in the area causes traffic jams.”

This judgment underscored that although “holding protests and demonstrations is an accepted right, at the same time, nobody can claim that I have a right to hold demonstration at one particular area only”.

This judgment in Mazdoor Kisan Shakti Sangthan’s case also dealt with situations when exercise of the fundamental right by one group may come in conflict with the right of a different group. “In all such situations, the Court has to examine as to where lies the larger public interest while balancing the two conflicting rights. It is the paramount collective interest which would ultimately prevail. To put it differently, the greater community interest or interest of the collective or social order would be the principle to recognize and accept the right of one which has to be protected,” held the court.

This judgment, most importantly, also talked about the “legitimacy” to claim or assert a right as a primary consideration. “Therefore, if the collective interest or the public interest that serves the public cause and further has the legitimacy to claim or assert a fundamental right, then only it can put forth that their right should be protected,” it said.

Given the body of judgments the apex court has delivered in the last six decades, the Supreme Court bench hearing the Shaheen Bagh protests case might have taken a cue and decided the questions of legality and legitimacy itself, for all the judges involved in the cases cited hereinabove decided what was before them on the basis of sound constitutional principles.

All these judgments laid down comprehensive doctrines on people’s right to protest by relying upon the chapter on fundamental rights, judicial precedents and interpretations of laws while not waiting for a report from the ‘interlocutors’ or mediators. The judges simply acted to uphold the rule of law.

But in the Shaheen Bagh protests case, the questions still loom large as to whether blocking public roads qualifies as causing public disturbances or creating a nuisance; whether the protesters could secure any permission to hold demonstrations on public roads indefinitely; whether authorities have taken any measures to maintain social and public order; whether the rights of the commuters have been infringed; whether there is a legitimacy to such protests and the most significant question, and probably the most significant one, whether Supreme Court will appoint ‘interlocutors’ in every such case for a mediation.

The national capital is burning today as different groups have indulged in violence. Four people, including a policeman, lost their life on the day when the Supreme Court adjourned the hearing of the matter to Wednesday after receiving a report from the interlocutors in a sealed cover envelope. Three more died the next day.

On February 7, when this case was taken up for the first time, the judges had cited impending Delhi assembly elections as the chief cause why they were deferring the proceedings. They had also observed what could be so urgent about the whole thing when the situation was like this for over a month now.

After the violence and the deaths, the Supreme Court must now comprehend the urgency, the anxiety of the people in Delhi and pass some effective orders immediately that should only go further in upholding the rule of law rather than being perceived as deferment of justice or abdication of responsibilities.

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