The Supreme Court on 7th October 2020 said that occupying public places like Shaheen Bagh for protests is not acceptable and such a space cannot be occupied “indefinitely”. The Supreme court in its judgement pronounced the balancing right to protest against the right to public movement, in the background of the marathon Shaheen Bagh protest against the controversial Citizenship Amendment Act. Delivering its verdict on a petition seeking removal of protesters from Delhi’s Shaheen Bagh, the Supreme Court on Wednesday referred to the findings of a report submitted by interlocutors appointed by it. The report pointed towards an “absence of leadership” and presence of “many influencers”, as a consequence of which the protests “perhaps no longer remained the sole and empowering voice of women…”

A Bench led by Justice Sanjay Kishan Kaul will deliver the judgment on a petition filed by advocate Amit Sahni several months ago, for a direction to shift the anti-CAA protesters of Shaheen Bagh, mostly mothers and their children, to an alternative site as they were “blocking” public movement and causing traffic snarls in the area. The protesters were later removed by the police on March 24 with the advent of the pandemic and the resultant national lockdown. The protesters had at the time written to Chief Justice of India S.A. Bobde against their “forcible and vindictive removal” by the Delhi Police. Although this did not produce a solution, “we have no regrets, as we are of the view that it is better to try and fail, than not to try at all”, the bench said. Solicitor General Tushar Mehta had argued that the right to protest, like any other right, was not “absolute.” Justice Kaul had orally said the avenue of debate was first the Parliament in a parliamentary democracy. In addition, peaceful protests could be held. Mr. Sahni had said though the reason for the petition — the blockage of the main road by Shaheen Bagh protestors — had become infructuous, the court should still pass specific orders that protests in future should not hinder public movement.

In the first report, the bench said, it “found that the nature of demands was very wide, and that it did look difficult to find a middle path towards at least facilitating the opening of the blocked public way”. Referring to the second report, the bench said, “We believe the interlocutors had done their best, but their efforts could not fructify into success, although the number of people at protest site had eventually diminished”

The court said: “The report suggested that the views reflected in private conversations with the protesters were somewhat different from public statements made to the media and to the protesting crowd in attendance. While the women protesters had sat inside the tent, there was a huge periphery comprising mainly male protesters, volunteers and bystanders, who all seemed to have a stake in continuance of the blockade of the road.

“Even after arrival of the pandemic, when a visit was made to the site on 20.03.2020, it was found that there were about 35-40 takhts inside the tent, and each takht had 2-3 women occupying the space, resulting in a rough estimate of about 75-100 women inside the tent, as well as 200 or more outside having a connection with the protest. While the tent was occupying half of the carriageway, the remaining half had been blocked by creating facilities such as a library, a large model of India Gate and a big metallic three-dimensional map of India located upon a very strong metal scaffolding and was anchored by heavy stones, making its removal very difficult.”

The judgment noted, “It appeared that an absence of leadership guiding the protest and the presence of various groups of protesters had resulted in many influencers who were acting possibly at cross-purposes with each other. Thus, the Shaheen Bagh protest perhaps no longer remained the sole and empowering voice of women, who also appeared to no longer have the ability to call off the protest themselves.

“There was also the possibility of protesters not fully realising ramifications of the pandemic, coupled with a general unwillingness to relocate to another site.”

In the previous hearing on 21 September, Solicitor General Tushar Mehta appearing for the Centre said suggested that the petitions may not survive in light of the developments in the case, however, none of the petitioners, barring one agreed to withdraw their pleas.

Petitioner Amit Sahni, said that these kinds of protests should not be allowed in the larger public interest. “This was allowed to continue for more than 100 days and people faced difficulty,” he said.

Advocate Mehmood Pracha, appearing for an intervenor, said that there was a right to peaceful protest, and “some people from a political party went there and created riots”.

“We have the right to protest. State machinery is not sacrosanct. Members of a political party went there with the police and created the situation,” PTI quoted him as saying.

But Mehta disagreed, saying that the right to protest cannot be absolute, and cited some previous judgements that supported his claim. In response, the top court reserved its verdict and said that it had appointed “interlocutors” in the Shaheen Bagh case as an experiment and they had suggested some measures which can be looked into. Shaheen Bagh became the epicentre of the protests against the Citizenship (Amendment) Act (CAA) as mostly women, some with young children, staged a sit-in protest there for over three months. The protest was called off in view of the coronavirus outbreak. The protest ended subsequently due to “the hand of God”, the court said, referring to Covid-19. The verdict also referred to its 2018 judgment in the Mazdoor Kisan Shakti Sangathan vs Union of India and Another case, which dealt with demonstrations at Delhi’s Jantar Mantar. The judgment tried to balance the interests of local residents with those of protesters to hold demonstrations, and directed the police to devise a proper mechanism for limited use of the area for peaceful protests and demonstrations, and to lay down parameters for this, the bench recalled. Referring to India’s emergence from colonial rule, the bench said it “must be kept in mind, however…that the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self- ruled democracy”.

As per LiveLaw, the Bench said: “Dissent and democracy go hand in hand but protests must be carried out in designated areas. Such kind of occupation of public place for protests is not acceptable.” The court held that the Shaheen Bagh movement began as a protest but caused inconvenience to commutors. “Social media channels often fraught with danger lead to highly polarising environment and this is what was witnessed in Shaheen Bagh,” it said. The Bench also said that Delhi Police ought to have taken action to clear the Shaheen Bagh area from the protesters.

The Constitution, it pointed out guarantees “the right to protest and express dissent, but with an obligation towards certain duties”.

The order said, “Article 19…confers upon citizens two treasured rights – right to freedom of speech and expression under Article 19(1)(a) and right to assemble peacefully without arms under Article 19(1)(b). These rights, in cohesion, enable every citizen to assemble peacefully and protest against action or inaction 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.”

This article has been written by Oorvi Agarwal,  4th year, BA-LLB student of Symbiosis Law School, Hyderabad.

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