The order of the Supreme Court in the Shaheen Bagh protests case is part of a trend where the space for dissent is shrinking rapidly, at great cost to democracy.
Background and context
The occupation of Shaheen Bagh by women began in December 2019 when violence against Jamia Millia students was unleashed. It continued as a protest against the Citizenship Amendment Act, 2019, a law that discriminates against Muslims. It came to an end in March 2020 due to the COVID- 19 pandemic and the lockdown, alluded to as the "Hand of God," by the judges. The protest was unprecedented for many reasons - it was led by women without the support of an organized union or political party, it was organic and spontaneous, it was a round the clock sit-in and reminiscent of occupy movements of the world, it had no leaders, it sparked off similar protests in the rest of the country, it acquired an iconic status and was keenly observed by the rest of the world, the protestors remained non-violent throughout and people from all over the country travelled to the site to express support and solidarity, the tenacity and determination of women inspired hope, empowered the participants and observers and the oldest participant, Bilkis Dadi was featured as one of the world's 100 most influential people in the Times magazine.
A petition was initially filed before the Delhi High Court seeking regulation of this protest on the ground that it disrupted the free movement of traffic and affected the rights of commuters. The Delhi High Court disposed of the case on the date of admission, 14/01/2020, leaving it to the wisdom of the police to manage and control traffic, bearing in mind the ground realities. The petitioner then approached the Supreme Court.
The relief sought had become infructuous when the Supreme Court passed a final order on 07/10/2020. The judges acknowledge this fact but decide to set certain parameters for future protests.
While appearing to affirm a citizen's right to protest, the Supreme Court imposes restrictive measures that are severely prohibitory.
The order bans :
1) use of public areas for protests unless such areas are designated for that purpose
2) indefinite occupation of public space and
3) assembly of indeterminable number of persons whenever they choose to protest.
No doubt a fundamental right guaranteed by the Constitution is never absolute and must yield when there are competing rights deserving a better claim. It is a tricky and arduous task to assess which of the competing rights will prevail and it is usually a subjective one. No rigid formula can be applied, in a case such as this, as situations and context may influence and change the decision as well as the process.
Situs and timing of protest determines its efficacy
The right to protest involves the exercise of several interdependent and interconnected fundamental rights and is essential for securing all human rights. It is an indispensable tool for building pressure to bring about political, economic or social change. It strengthens the fundamental social and constitutional fabric of a democracy
A protest in a public space is an expression of disagreement with a state action, in full public gaze, to draw the attention of the authority in the hope of remedial response. It is an appeal to the conscience of the community and an invitation for discussion, support, participation and solidarity. A protest can be spontaneous, like a flash mob, in response to an immediate grievance. It can also be intended to disrupt a routine – like a group of women blocking a road as they have been denied drinking water for weeks. A protest can be inconvenient to other members of the public and may encroach upon their rights.
The location, mode and timing of a protest are chosen to ensure maximum visibility and proximity to the authority that can redress the grievance. The efficacy of a protest is dependent on these factors.
Recognising this, the European Court of Human Rights in the case of Saska v Hungary (ECHR 27 Nov 2012) held that the right to freedom of assembly includes the right to choose time, place and modalities of assembly, subject to lawful limits.
When the state is allowed to choose sites, areas with low or no visibility are designated to subvert the protest and defeat its purpose.
Sanitization of protests and gentrification of dissent
Blanket site and duration restrictions pose a real danger to the efficacy of a public demonstration. Imposing a cap on the number of participants makes a mockery of the right to protest, as one of the objectives of a demonstration is to show the extent of support. An observer is entitled to become a participant. Any participant in a protest would vouchsafe that numbers may swell if the cause resonates with the onlookers. Despite the large numbers and the groundswell of support for the Shaheen Bagh protestors, the government refused to engage with the citizenry. The Supreme Court has made it easier for such a government to ignore voices of dissent. Protest as much as you want, but limit the crowd and time, do not be seen or heard and while you are going about it do not inconvenience any other person, is the message. The aversion of the privileged to the troublesome din of democracy and the cacophony of contests will now acquire legitimacy. Sanitizing a protest and stripping it of tools necessary for building pressure to bring about change has serious ramifications for a democracy that can exist only with effective public participation.
Cartoon by the author of the article
Abuse of power and pigeonholing of protests
Almost all parts of the country have regulations that impose a blanket ban on protests without prior permission. As any permanent law imposing such prohibitions will fail the test of constitutional scrutiny, they are introduced as temporary measures through notifications and renewed repeatedly keeping alive the ban. This clearly is an abuse of executive power intended to frustrate the right to protest, in breach of the reasonable restrictions test.
Applications for permissions are rejected routinely or onerous conditions imposed. Information about names of speakers, content of speech and banners/placards, duration, personal details about participants is invariably demanded. Protests, however, do not follow a script and cannot be pigeonholed into slots. Such information also compromises the rights of the participants and divests the protest of its fluid nature and spontaneity. Prior intimation can be seen as a legitimate inroad into the right to protest but prior permission cannot be the norm.
Restrictive measures fail to meet obligations under ICCPR
United Nations Human Rights Committee's General Comment 37, adopted on 23/07/2020, on Article 21 of the International Covenant on Civil and Political Rights (right to peaceful assembly), calls upon the state to discharge positive obligations and negative duties to enable effective exercise of the right to protest by facilitating peaceful assemblies within sight and sound of the target audience and by not prohibiting, restricting, blocking, disrupting such assemblies without compelling justification, the onus being on the authority to justify prohibition. UNHRC recognizes that assemblies with a political message should enjoy a heightened level of accommodation and protection and redirecting traffic, blocking roads and providing security are measures that should be taken by the state. Even disruptive assemblies are entitled to a significant degree of toleration. An important departure from the "reasonable restriction" jurisprudence is found in the UNHRC document-restrictions must be necessary and not just reasonable and expedient. India though being a signatory to ICCPR has failed to discharge these obligations and continues to adopt repressive measures to stultify the right to protest. The additional restrictions imposed by the Supreme Court do not meet the standards set out in ICCPR, as clarified in UNHRC General Comment.
Rights of commuters
After considering the competing claims - freedom of assembly and expression of protestors vis-à-vis freedom of movement of commuters, the Supreme Court decides in favour of commuters.
UNHRC General Comment sheds light on the balance test:
"… peaceful assemblies can sometimes be used to pursue contentious ideas or goals. Their scale of nature can cause disruption, for example of vehicular or pedestrian movement or economic activity. These consequences, whether intended or unintended, do not call into question the protection such assemblies enjoy. To an extent that an event may create such disruptions or risks, these must be managed within the framework of the Covenant."
"… assemblies are a legitimate use of public and other spaces, and since they may entail by their very nature a certain level of disruption to ordinary life, such disruption must be accommodated, unless they impose a disproportionate burden, in which case the authorities must be able to provide detailed justification for restrictions."
The main reason for the inconvenience caused to commuters, in this case, was blocking by the police of two alternate routes, Kalindi Kunj Mithapur road (that runs parallel to G D Birla Marg, the protest site ) and Khadad Kalindi Kunj road. This blockade was a deliberate act of subversion, intended to deprive the commuters' freedom of movement. The order does not mention the complicity of law enforcement officials in creating a situation where one right was intentionally pitted against another, to impair the essence of the right to protest.
The right of a commuter to unrestricted movement is constantly compromised by events like political parties' rallies, VIP cavalcades, religious processions and security measures for visiting dignitaries. This right, in practice, is never an absolute one and is normally considered unimportant by the state. To hold that the right to protest is subservient to such a right will stultify and weaken a democracy. Courts in other parts of the world have balanced these claims differently.
Justice A.E.N Mpagi Bahigeine of Uganda's constitutional court in the landmark case of Muwanga Kivumbi v Attorney General [(2008) UGCC 4 (27 May 2008)] says :
"… if the police entertain a "reasonable belief" that some disturbances may occur during the assembly, all that can be done is to provide security and supervision in anticipation of disturbances. It is the paramount duty of the police to maintain law and order but not to curtail people's enshrined freedom and liberties on mere anticipatory grounds."
Justice Byamugisha J.A, in that order opines:
"A society especially a democratic one should be able to tolerate a good deal of annoyance or disorder so as to encourage the greatest possible freedom of expression, particularly political expression."
The attempt to reverse this order through a legislative measure was stymied in a recent order in the case of Human Rights Network & 4 others v Attorney General [(2020) UGCC 6 (26 March 2020)] where the Uganda constitutional court held :
"Provided a protest or public gathering is peaceful, it does not matter that it may be disruptive or even inconveniencing due to the large numbers of individuals that may participate in the same."
Counter demonstrations cannot negate a right to protest
The Supreme Court's observation that persons with a different point of view may emulate the Shaheen Bagh protest leading to a chaotic situation is counter-intuitive. It is the obligation of the state to ensure that such counter-protests are peaceful and do not cause any disruption. UNHRC General Comment, envisaging such a situation, states that it is the responsibility of the state to enable both kinds of protests, even within sight and sound of each other. A recent example is the Black Lives Matter movement in U.S.A, where white supremacists resorted to violence to disrupt the protests. To cite the possibility of violence by counter-demonstrators as a reason for negating the right to protest is nothing short of an absurdity.
The UK Supreme Court in Redmont – Bate v Director of Public Prosecution (1999 EWHC Admin 733) (23 July 1999) declares that it is the responsibility of law enforcers to stop others from behaving unlawfully in reaction to a protest and the solution does not lie in stopping the protestor from proceeding with the protest.
Presumption of state benevolence
The order seeks to make a distinction between protests during colonial times and post-independence era. There is a presumption that the relationship between the citizenry and an elected government in power is egalitarian, that the latter would not abuse its powers lightly and antagonism towards and suspicion of a colonial power cannot or does not exist against elected governments. This assumption, as we know, is not correct. A majoritarian government easily tramples upon basic rights and uses intimidation, incarceration under draconian laws (including those that served the purpose of brutal colonialism) and institutions that enforce and protect rights to silence dissent. What we are witnessing today is the rise of authoritarianism that is much more alarming than a colonial rule. Dissenters are quickly labelled anti-nationals and terrorists. Charges of sedition and terrorism are indiscriminately slapped on any person who musters the courage to question those at the helm of power. Forms of protest resorted to during the colonial rule have not lost its relevance even today, as the state continues to employ the same methods as that of colonial regimes to suppress mass movements. Therefore, the observations of the highest court of the land that the "erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self – ruled democracy, " do not reflect ground realities.
To conclude, the Supreme Court's order leaves us with very little space for dissent and meaningful participation in a democracy. It sets the stage for Dyerism under the veneer of legality. It will lead to legitimization of oppressive measures against dissenters.
We can only draw strength from judge Learned Hand's prophetic words, "I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it."
(The author is an advocate practising at the Madras High Court. She may be reached at [email protected])