SC on Shaheen Bagh protests: Occupation of public ways, for protests is not acceptable

The Hon’ble Supreme Court, on 7th September 2020, in the matter of Amit Sahni v. Commissioner of Police & Ors. held that while appreciating the existence of the right to peaceful protest against a legislation public ways cannot be blocked and public spaces cannot be occupied. Occupation of public ways, for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.

The Hon’ble Supreme Court observed that:

Our country made tryst with destiny on the midnight hour of 15th August 1947, shedding the colonial yoke. Despite the pain and turbulence of the partition, the best of the legal and political minds assembled together in the Constituent Assembly to give us one of the most elaborate and modern Constitutions. (Para 1)

One of the bedrocks of the Constitution of India is the separation of powers between the Legislature, the Executive and the Judiciary. It is the function of the Legislature to legislate, of the Executive to implement the legislation, and of the Judiciary to test the constitutional validity of the legislation, if a challenge is so laid. (Para 2)

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 self- ruled democracy. Our Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties. 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. 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. (Para 16)

Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone. (Para 17)

While appreciating the existence of the right to peaceful protest against a legislation public ways cannot be blocked and public spaces cannot be occupied. Occupation of public ways, for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions. (This inference has been drawn on the basis of Para 17 & 19)

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. (Para 18)

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. (Para 20)

Copy of judgement: Judgement_07-Oct-2020

-Adv. Tushar Kaushik

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