On 7 October 2020, a three-judge bench of the Supreme Court of India held that the right to protest guaranteed under the Constitution of India cannot be exercised at public places for an indefinite period of time. This judgement resulted from a Special Leave Petition filed in the Supreme Court for the clearance of Delhi’s Shaheen Bagh protests, alleging that it caused road blockage and affected commuters in the area.
In Delhi’s Shaheen Bagh, women led peaceful protests were organised from 15 December 2019 till the advent of COVID-19 i.e. March 2020, to oppose the enactment of the Citizenship Amendment Act, 2019 (CAA). The CAA removes the ‘illegal immigrant’ status of Hindus, Sikhs, Buddhists, Jains, Parsis and Christians who arrived in India before 31 December 2014 from Afghanistan, Bangladesh or Pakistan, excluding only the Muslim community. As a result, Muslim women gathered in Shaheen Bagh to demand the revocation of the CAA, while a Writ Petition seeking the same is pending before the Supreme Court.
Revisiting the importance of protests during the independence struggle, the Court held that the Shaheen Bagh protestors do have a right to protest and express dissent under Articles 19(1)(a) and 19(1)(b) which grant the right to free speech and the right to peaceful assembly, respectively. However, the Court highlighted that these rights are subject to reasonable restrictions pertaining to the sovereignty of the State and public order. Relying on its decision in Mazdoor Kisan Shakti Sangathan v. Union of India, the Court said that the rights of the protestors have to be balanced with the rights of the commuters. It therefore, gave an order to the Delhi Administration to act in “their responsibility” to ensure that public spaces and roads are not occupied by the protestors, indefinitely. It further held that this limitation also applied to protests which had sought prior permission from administrative authorities, such as the Shaheen Bagh protests.
The Supreme Court had previously dealt with the clash between the right to protest and convenience of the public in the case of Himat Lal K. Shah v. Commissioner of Police. While settling the issue, the Court said that a reasonable restriction in the form of seeking prior permission of the authorities to hold the protest at a designated time and place can be imposed. However, in doing so, the Court said that authorities should not have discretionary powers in granting permission to the protestors. In the case at hand, the Court has imposed an additional requirement on the protestors which is to not occupy public places, regardless of seeking prior permission of the authorities. This decision not only limits the right to protest but makes way for the authorities to clear any and every protest carried out at a public place. Further, the Court also did not lay down any clear guidelines for the administrative authorities to adhere to. This decision gives enormous power to the authorities to limit the number of protestors, the duration of the protest and most importantly, the usage of public spaces. Emphasizing on how the expression of dissent in a self-ruled democracy cannot be the same as it was under colonial rule, the Court in this decision has taken away the entire essence of the right to protest by giving administrative authorities the discretion to limit the usage of public places, where most protests are carried out.
In an attempt to resolve the matter via mediation, the Court appointed two interlocutors who visited the protest site and submitted their observation in two ‘sealed cover’ reports. Although the use of ‘sealed cover’ documents is allowed under Order XIII Rule 7 of the Supreme Court Rules, but in the instant case, no reason has been given by the Court as to why the interlocutors’ report has been made confidential. On the basis of the report, the Court has commented on the nature of the protest in para. 10 of the judgement, and said that “the report suggested that the views reflected in private conversations with the protestors were somewhat different from the public statements made to the media and to the protesting crowd in attendance”. This implies that though the inconvenience caused to the public might have led the Court to limit the right to protest, the factual assessment made on the basis of the interlocutors’ confidential report also has impacted the Court’s decision. The usage of confidential reports in this case is therefore problematic, since it becomes impossible to see the basis of the Court’s reasoning.