Shaheen Bagh: Testing the legal limits to peaceful protest

It is not always that the Supreme Court of India, the highest court of the land, appoints interlocutors to negotiate and moderate a protest. This is what the Court actually did in the context of Shaheen Bagh protests on 17th February 2020 setting out mildly the legal and factual matrix for dealing with a protest.

This unprecedented approach of the Court while dealing with the petition filed against the continuation of ongoing Shaheen Bagh protests is unique in two ways. Firstly, the Court delineated the structural issues of the protest from its substantive content such as opposition to Citizenship Amendment Act (CAA) and National Register of Citizens (NRC).

Secondly, it confirmed that everyone within our constitutional structure has the right to assemble and register his/her protest, though within the limits set by the law.

The court not only took the petition on board with a view to deal with the concerns of the petitioners, it also appointed two Senior Counsels of the SC, Sanjaya Hegde and Sadhana Ramachadran as its interlocutors to open up a dialogue with the Shaheen Bagh protesters.

Even the petitioners who wanted the protesters to be shifted from their current location on the ground that it inconvenienced the larger public as site of the protest blocked key connecting roads from Delhi to Noida (New Okhla Industrial Development Area) could not have expected this kind of a response from the Court.

In the usual course, the Court should have dismissed the petition against Shaheen Bagh protests as it fell squarely within the executive domain for necessary preventive action or even could have asked the petitioners to take recourse to other alternative administrative methods to deal with the protest. The Court followed neither of these usual courses. The Court gave a week’s time for the interlocutors to arrive at an amicable solution to resolve the issues concerning the road blockage by the protesters and posted for its hearing on 24th February 2020.

For the last three days, as we have seen, both the interlocutors made several visits to the protest site and met with the agitators to assess their views about the moderation of the geography of the protest. It is clear, even to the Court that the Shaheen Bagh protests seemed to have evolved out of a spontaneous exhibition of distress and disapproval towards CAA and NRC. The lack of structured and coherent leadership to the protests, although contested by many political parties, appeared to be its greatest strength. The unassuming and simplicity of the protesting women along with their grounded vocabulary of protest propelled it to a national fame.

Related news: In SC affidavit, Shaheen Bagh interlocutor says police blocked roads

The Shaheen Bagh protest sustained itself despite being caught in the venomous communal slug-fest during recently concluded Delhi State elections. Even this, as admitted by some political leaders, must have had its impact not only on the Delhi voters, but also on the sympathetic view taken by the Court. The emergence of Shaheen Bagh as a brand of protest, replicating itself in different parts of the country, required different kind of legal handling.

The indications that the Supreme Court interlocutors have almost succeeded in persuading the Shaheen Bagh protesters to moderate their protest site by agreeing to open up one side of the connecting road linking Delhi-Noida are already doing the rounds. Little structural changes to the positioning of the protest site would likely to lead to the amelioration of the woes of Delhi-Noida commuters.

However, not addressing the substantive concerns of the protesters by the executive branch of the Government would certainly take these protests through an unending and eternal tunnel. The Central Government has already stated that there is absolutely no going back on CAA. However, the same Central Government’s views on NRC appeared to be ambivalent regarding implementation. In this scenario, it is finally for the Supreme Court, as and when it happens, to finally determine CAA-NRC constitutional legitimacy and impact of its link on the excluded minority communities.

Protests, as maintained by the Shaheen Bagh model, should continue until Central Government talks to them formally and reassures them of its unwarranted fall out on excluded minority communities in the CAA. The offer of talks and debates on the CAA issue by the Central Government at any point of time (subject to appropriate appointment), seem to have gone nowhere. In other words, as pointed out by some protesters, the intent of Central Government to talk to all protesters to reassure them of the consequent fall out of CAA does not squarely match their action on the ground. Pro-CAA rallies have been held to bolster the stand of the Government.

In all this, by appointing interlocutors for resolving the structural issues of protests, the Supreme Court appear to provide a signpost for the resolution of all such Shaheen Bagh model of protests in different parts of the country. The Court could certainly rely on its own long held views and jurisprudence on the issue of protest and dissent.

Consider what the Court stated in 1961 in the case of Raj Narian v. State. It observed, “…picketing which is done by a few and which does not go beyond the limit of persuasion or inducement and which does not restrain others from doing what they please, can be accepted as protected under Article 19 (1) (a).” As is well-known, Article 19 (1) (a) and (b), inter alia, provide that “All citizens shall have the right – (a) to freedom of speech and expression; (b) to assemble peaceably and without arms…” Later, in 1962 the Court in Kameshwar Singh v. State of Bihar further confirmed that “…demonstrations being visible representations of ideas would be protected as a form of speech provided they are not violent and disorderly.”

The evolution of our Constitution has shown that these rights under Article 19 are not absolute. Initially, as it was drafted and approved in 1950, Article 19 was granted in absolute terms. However, considering the complexities faced by the State, by 1951 with its first amendment to the Constitution reasonable restrictions on the exercise of freedom of speech and expression were introduced for exercise of State power for any violation that could affect security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, incitement to an offence, sovereignty and integrity of India.

Related news: Anti-CAA protesters block Delhi road, Jaffrabad metro shut

The State, as the Constitution provides, cannot apply these reasonable restrictions at its whims and fancies. The Court in Express Newspapers (P) Ltd. v. Union of India (1986) confirmed that these reasonable restrictions can be imposed only by duly enacted law and not by an executive action.

In view of the above confirmed position of the Court, there is hardly any ambiguity in the action of the Court in allowing the carrying out of the peaceful protests. The Court has also gone on to clearly state in Romesh Thappar vs. State of Madras way back in 1950 that every public disorder should not be regarded as threatening the security of the State.

Such application of offences relating to sedition, public disorder and other related reasonable restrictions required high threshold of legality and evidence to actual incitement of violence to put somebody behind bars. The Court was explicit about this threshold almost sixty years ago when it stated in Superintendent, Central Prison v. Ram Manohar Lohia (1960) “The `public order’ restriction must not be far-fetched, hypothetical or problematical or too remote in the chain of its relations with the public order.” The Supreme Court has always insisted on the rational and reasonable nexus with the objective of the law to achieve the public order.

How should the Supreme Court deal with and negotiate all these protests? While pro-CAA rallies are short and specific, the anti-CAA rallies seem to continue like Shaheen Bagh, in several sustained, creative forms that include gatherings of huge mass of people to anti-CAA dramas/plays enacted in some schools, songs written by poets and painting of walls. All kinds of legislative measures, including section 144 of the Criminal Procedure Code on prohibition of assemblies and section 124-A of the Indian Penal Code on Sedition were employed on creative anti-CAA protesters holding placards and many of them have been placed under detention pending trial.

How far these detentions are justifiable, given the Supreme Court rulings, under the existing legal structures and within our Constitutional scheme? While Shaheen Bagh protest held in the southern part of Delhi had the visibility and proximity to the state and judicial apparatus in Delhi, the same may not be true in the case of many other protests in distant and remote parts.

Arbitrary initiation of legal process as a tool to suppress dissent by the State against its own population in distant protest sites raises several key legal problems. Foremost among them is the issue of `access to justice’ and to courts. How many of these people who are otherwise vulnerable could afford this legal process in courts, let alone take recourse to the highest court of the land, the Supreme Court? As the Court is currently seized of the issue awaiting the reports of the interlocutors, an appropriate guideline and clarification restricting the exercise of arbitrary State power would sure to provide certain solace to those protesters in different parts of the country.

(Professor (Dr.) Venkatachala G. Hegde teaches International Law at the Centre for International Studies, School of International Studies, Jawaharlal Nehru University (JNU), New Delhi)