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[Shaheen Bagh] Demonstrations Expressing Dissent Have To Be In Designated Places Alone: SC [Read Judgment]

Ashok Kini
7 Oct 2020 12:52 PM GMT
[Shaheen Bagh] Demonstrations Expressing Dissent Have To Be In Designated Places Alone: SC [Read Judgment]
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"Democracy and dissent go hand in hand."

The Supreme Court has observed that the right to peaceful protest against a legislation exists, but the demonstrations expressing dissent have to be in designated places alone.The bench comprising Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari observed that the mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy. The court...

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The Supreme Court has observed that the right to peaceful protest against a legislation exists, but the demonstrations expressing dissent have to be in designated places alone.

The bench comprising Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari observed that the mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy. The court said that the fundamental right of every citizen to assemble peacefully and protest against the actions or inactions of the State must be respected and encouraged by the State. 

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, Justice Kaul observed in the judgment adding that Shaheen Bagh protests caused blockage of a public way which caused grave inconvenience to commuters.

While closing the appeal, the bench expressed 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.'

The court was considering an appeal filed by Advocate Amit Sahni  seeking to remove the protests against CAA-NRC at Shaheen Bagh, alleging that the protests were blocking the roads, affecting the right of free movement of the public. Though the protesters vacated the site in March with the onset of COVID-19 pandemic, the court proceeded to hear the matter on the larger issue of balancing the right to protest with the right to free movement of people.

Following are some important observations made in the judgment:

Manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy

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 selfruled democracy. Our Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties.

Right to protest must be respected and encouraged by the State, for the strength of a democracy such as ours lies in the same

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 ours 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. 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.

Cannot accept the plea that an indeterminable number of people can assemble whenever they choose to protest.

while appreciating the existence of the right to peaceful protest against a legislation (keeping in mind the words of Pulitzer Prize winner, Walter Lippmann, 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.

Social media channels are often fraught with danger and can lead to the creation of highly polarised environments,

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 polarised environments, which often see parallel conversations running with no constructive outcome evident. Both these scenarios were witnessed 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.

 In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support therefrom

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.
 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.
Case name: AMIT SAHNI vs. COMMISSIONER OF POLICE 
Case no.: CIVIL APPEAL NO. 3282 OF 2020 
Coram: Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari

 Click here to Read/Download Judgment

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