The apex court has disapproved of the way in which the Shaheen Bagh protests took place and ruled that such agitations must be in designated areas alone and public spaces cannot be occupied indefinitely.
By Rajbir Deswal
The Supreme Court on October 7 ruled that public protests must be “in designated areas alone” and “public ways and public spaces cannot be occupied, and that too indefinitely”. A bench of Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari disapproved of the manner in which a sit in protest against the Citizenship (Amendment) Act (CAA) was organised in Shaheen Bagh, Delhi, from December 2019 to March 2020.
This was the outcome of an appeal filed by Advocate Amit Sahni, who had initially approached the Delhi High Court with issues and constraints arising out of the protests. These had led to the closure of the Kalindi Kunj Shaheen Bagh stretch, including the Okhla underpass, from December 15, 2019 till March 2020. Sahni’s contentions were that public roads could not be encroached upon in this manner and he sought a court direction to clear them. The Court said that “democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone”.
This reminded me of a private trip I had undertaken in 1992 to London. Standing at the Speakers’ Corner in Hyde Park, I was emotionally carried away by a symbol of freedom of speech and expression a Russian girl who stood on a stool with about a dozen people around her. She was overwhelmed at being heard by “so many people around”. From the stifling environment in Russia to London was quite a change for her as she literally breathed glasnost, having found a place to speak frankly and without fear.
Such “pulpits” are prevalent in Rome, France, Greece and England. These are platforms, raised or marked, for not only announcements and proclamations, but for venting ire against the ruling dispensation or system. Yes, protestors also took to the streets, but these were aggressive actions and resorted to as the last option.
In the present ruling, critics had expected the apex court to give a similar judgment regarding Shaheen Bagh and CAA. Not only that, they had expectations that the Court would talk about freedom of speech and expression, liberty, etc. Though the judges described freedom of speech as “most abused”, they largely avoided stirring a hornets’ nest.
In all fairness and propriety, the Court addressed only the issue of the protest venue. They said that public places, especially highways, cannot be allowed to be used as grounds to launch any kind of protest.
Former Law Commission member Tahir Mehmood and a teacher of Justice Sanjay Kishan Kaul said that what must be kept in mind, however, is that the mode and manner of dissent against the colonial rule cannot be equated with dissent in a self-ruled democracy.
“Shaheen Bagh was not an ordinary protest by ordinary people against an ordinary State action; it was an extraordinary protest by extraordinary people against an extraordinary action unduly taken by the state authorities.”
Any common man will acknowledge that every kind of blockade is against humanity. What would happen to the person being taken in an ambulance along that route or a woman in labour on her way to hospital? Or a person who has to appear for a crucial interview, go to court or has a business appointment? Or a shopkeeper who loses business due to the protest?
Few of those protesting care about the old, infirm, women and children who are put to despair over these blockades. Is it civil, humane or sensitive to lay siege to roads and highways? Who would know this better than Delhiites who have had to take detours to commute and spend hours travelling more than required due to Shaheen Bagh, which was no less than a siege. A site or a venue cannot be made a symbol of a protest at the cost of inconvenience and discomfort to civil society.
Instances of the misuse of public places for protests are multiplying with impunity all over. A few years back, a farmers’ protest took place in a village called Mayyad in Hisar district of Haryana. The village falls on the Delhi Ferozepur railway line. For nearly two weeks, rail traffic was disrupted. In a firing incident there, one person was killed. For the siege’s inappropriate handling, the easy scapegoat was the superintendent of Hisar who was not only placed under suspension, but criminally proceeded against for murder. The court later desired the losses incurred on railway freight to be recovered.
A similar situation arose when I was police commissioner of Ambala. Some 400 Haryana Roadways workers, having taken an SP and two magistrates hostage, were moving towards the main Delhi-Amritsar highway. We could not have allowed another Mayyad to take place. Using a swift lathi charge, the agitationists were dispersed and the situation saved. Had the protesters reached the highway and blocked it, it would not have reopened for three days at least as this was the main artery in the north. Remember, there is a provision in traffic laws for proceeding against those violators who obstruct highways, but these instrumentalities are unfortunately never resorted to.
While passing the ruling, the apex court came down heavily on the Delhi High Court as well, saying that the issue should have been decided at that level only. The High Court had heard the plea on January 14, 2020, and had disposed it the same day without any specific direction except saying that the Delhi Police had all the powers, jurisdiction and authority to control traffic in the larger public interest, wherever protests or agitations were on. The High Court left the issue to the “wisdom” of the police.
The apex court bench said that
“while appreciating the existence of the right to peaceful protest against a legislation, we have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely”.
In consonance with the Supreme Court direction, Chandigarh, capital of Punjab and Haryana, has been first off the block. “The Chandigarh administration has done well to earmark a site in Sector 25 for such protests and agitations. If the protesters do not conform, they are stopped in their tracks at the borders. No other site can be used for such protests. And it’s working fine with the Union Territory,” said Shashank Anand, a DIG who worked for the Chandigarh administration. This has worked well without causing any hardship or discomfort to the local citizenry. The local deputy commissioner accords permission to hold protests at the Sector 25 site.
While there may be a problem in assigning designated spaces and venues for protests in many districts within the country, the guiding factor should be to make a police bandobast which least affects the common man. The inconvenience caused to Delhiites for four months due to Shaheen Bagh is a glaring example of near-vigilante indulgence. This can be dubbed by critics as democratic and in keeping with the tenets of the concept of freedom of expression and dissent.
Along similar lines is the question about whether Section 144 of the Criminal Procedure Code should be done away with. It is part of the colonial legacy which seeks to curtail the freedom of individuals. During the British era, this Section was misused many times. Even when Article 370 was repealed last year, the promulgation of Section 144 was condemned. In the infamous Hathras case, the victim’s side is said to have been adversely affected by the imposition of this Section, allegedly to not allow them to protest.
Many a time, there are no laws for common day-to-day situations. When I was the commissioner of police in Panchkula, I had a peculiar problem on my hands people being washed away by strong currents of the Ghaggar river during the rainy season. The only option was to promulgate Section 144 to stop persons from taking a bath or diving into the river in the larger public interest.
It would be apt to mention earlier agitations. In 1977, Charan Singh, former prime minister, had organised a kisan rally in Delhi which was attended by lakhs of farmers. Similar rallies were organised in Delhi by the Bharatiya Kisan Union president, Mahendra Singh Tikait, who came from Uttar Pradesh. This, in fact, was the beginning of such agitations.
Other protests included the Nyaya Yudh, launched by Devi Lal in Haryana in 1985 to protest against the Rajiv-Longowal Accord, where people were encouraged to cut trees and block roads and highways and the Mandal Commission upsurge which saw such protests erupting in many places.
While a positive direction has come from the Supreme Court, perhaps damages could be recovered from those who violate these directions, besides those who encourage and abet such violations.
—The writer is a retired IPS officer, an advocate and a commentator