The judgment of the Supreme Court of India last month to a petition filed in January this year asking for the Shaheen Bagh protests to be cleared, on the grounds that the protests inconvenienced several commuters by shutting off an arterial road, assumes crucial significance.

Mainly because the judgment deals a further blow to the right to civil protests in India. Even though the petition itself had been rendered infructuous over the past seven months because of the protestors having voluntarily cleared the protest site due to the Covid pandemic (in paragraph 12 of the judgment, the bench itself states that “really speaking, the reliefs in the present proceedings have worked themselves out”).

The judgement holds that the occupation of public ways indefinitely anywhere “for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions”.

It further rules that “demonstrations expressing dissent have to be in designated places alone”. To drive home the point, it expressly posits that “future... protests are subject to the legal position… enunciated above”.

This is the first of a three-part series to analyze and critique the judgment, and shall employ a legal lens to compare and contrast it with the Supreme Court’s jurisprudence on the same matter.

The second part shall use a principled as well as prudential perspective to break down the objective and rationale of civil protests, and the third part shall use a historical one that looks back at how civil protests of the very nature proscribed by the judgment are interwoven into the rich tapestry of independent India’s existence.

The fundamental right to peaceful protest

The right to peaceful civil protest is a fundamental right that each Indian citizen is guaranteed by virtue of Article 19(1)(a) and (b) of the Constitution of India.

Article 19(1)(a) provides the fundamental right to freedom of speech and expression, while Article 19(1)(b) provides the fundamental right to assemble peaceably without arms.

Both these fundamental rights are not untrammeled in scope, though, and can be regulated as per the provisions in Article 19(2) and (3) respectively.

Article 19(2) allows the State to regulate citizens’ freedom of speech and expression by law in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Article 19(3), similarly, allows the State to regulate citizens’ freedom to assemble peaceably without arms in the interests of the sovereignty and integrity of India or public order.

When looking at the question of regulating civil protests or demonstrations, therefore, the judiciary must only concern itself with the question as to whether the regulation can be placed within the contours of Article 19(2) and (3). These contours have been defined by the Supreme Court in several of its judgments.

In 1973, a Constitution bench of the apex court had held, in its judgment in the case of Himat Lal K Shah vs Commissioner of Police, Ahmedabad (AIR 1973 SC 87), that the State’s power to regulate public meetings on streets doesn’t extend to closing all the streets or open areas for public meetings, thereby denying the fundamental right which flows from Article 19(1)(a) and (b).

The State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interest of public order. The court highlighted that there is a constitutional difference between reasonable regulation and arbitrary exclusion.

In a more recent judgment in the case of In re: Ramlila Maidan Incident dt. 4/5.06.2011 vs Home Secretary, Union of India and Others ((2012) 5 SCC 1), the Court had articulated the legal position on this matter thus:

“Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the Government on any subject of social or national importance. The Government has to respect and, in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of the right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions. The preventive steps should be founded on actual and prominent threat endangering public order and tranquility, as it may disturb the social order. This delegated power vested in the State has to be exercised with great caution and free from arbitrariness. It must serve the ends of the constitutional rights rather than to subvert them.”

Just two years ago, in its judgment in the case of Mazdoor Kisan Shakti Sangathan vs Union of India (AIR 2018 SC 3476), on the question of grant of permission by authorities to applications for protests and demonstrations, the Court had held that authorities must formulate guidelines for the effective regulation of demonstrations, rather than banning them altogether.

Moreover, on the question of balancing of conflicting fundamental rights, the Court had held that primacy cannot be given to one right at the cost of total extinguishment of another; balancing would mean curtailing one right of one class to some extent so that the other class’s right is also protected.

Each of these judgments has been referred to in the judgment in question.

Legal flaws in the judgment

Now, in the instant judgment, the Supreme Court justifies its stance by referring to the inconvenience caused to commuters due to the blockage of public ways, and articulates its solution as an attempt to balance the rights of protestors with those of commuters.

However, in doing so, the Court disregards the fact that part of the blame for commuters’ inconvenience rests with the seemingly unnecessary blockading of alternate routes by the Delhi and Uttar Pradesh Police, a fact that was highlighted in his affidavit filed in this matter by former Chief Information Commissioner W. Habibullah, one of the interlocutors appointed by the Court.

This crucial fact finds no mention in the judgment, which seems to rest the blame for commuters’ inconvenience entirely with the protestors.

More significantly, though, nowhere in the judgment does the Court refer to the exact fundamental rights of commuters that must be balanced with those of the protestors. It is pertinent to note here that inconvenience is not the same as violation of fundamental rights.

The judgment also makes the caveat that “[o]ur Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties”. This seems to be a reference to the Fundamental Duties prescribed in Article 51A of our Constitution. Unfortunately, it fails to specify what the exact duties therein are that the protestors failed to fulfill their obligation to.

Neither does the judgment try to locate the inconvenience to commuters within the grounds stated within Article 19(2) and (3), or even refer to those sub-clauses while laying out what is, effectively, a substantial curtailment of the fundamental right to peaceful protest.

The judgment does make reference to some of the grounds for reasonable restrictions on the rights conferred by Article 19(1)(a) and (b): interests of the sovereignty and integrity of India, public order, and regulations by concerned police authorities in this regard.

However, it, again, fails to specify how the 100+ day Shaheen Bagh protest transgressed any of these grounds.

Is a blanket ban on civil protests that end up blocking public ways, and restricting them to only designated zones a reasonable regulation or an arbitrary exclusion? I personally believe it is the latter, but the very fact that the Court doesn’t even bother to sufficiently and satisfactorily answer this question in its judgment is a departure from our constitutional framework in this matter, as has been elucidated by the Supreme Court itself in the judgments referred to above.

In this departure, civil protesters are couched as dehumanized ‘encroachments’ and ‘obstructions’ to be cleared by the administration, rather than as citizens, with legitimate grievances, exercising their fundamental right to air them to the State and other citizens. In this departure, moreover, the State has no role, either to encourage or effectively regulate, by law, citizens’ exercise of their right to protest.

Such a departure is alarming, and must concern all citizens.

Vineet Bhalla is a Delhi-based lawyer.