SHAHEEN BAG JUDGMENT ANALYSIS

This Article is written by Ashima Gupta student of VIPS, Delhi.

In the case of Amit Sahni v. Commissioner of Police and Ors (commonly known as the ‘Shaheen Bagh case’) the Supreme Court of India delivered an important judgment touching upon the right to protest and the extent of the right. The case was filed as a result of the protests that took place across the country because of the The Citizenship (Amendment) Act, 2019. The case introduced a new blanket condition that has to be placed  public protests, namely that they cannot occupy public ways, and the Supreme Court of also gave the administrative authorities a free hand to take necessary action to keep such public areas clear of encroachments or obstructions.

FACTS

The Citizenship (Amendment) Act, 2019 was passed by the Parliament in December 2019, and this led to nationwide protests. One of the protest led to the closure of the district Shaheen Bagh in Delhi. As a consequence of this a writ petition was filed in the High Court of Delhi against the protest on January 14, 2020. It was contended that the protests should not lead to closure of public roads and it could not be permitted to be encroached upon in this manner. The Delhi High Court just directed  the respondent authorities to take the necessary steps. It gave did not give any specific order or direction and thus the situation remained the same.

As there was no change in the situation an appeal was filed in the Supreme Court against the order of the High Court by advocate Amit Sahni (the appellant). He argued that the protest site should be removed. Intervention applications were  filed by the parties who sympathized with and supported the protestors. To mediate the issue with the protestors the Supreme Court appointed two interlocutors but their efforts were unsuccessful. The site was cleared eventually as coronavirus spread. The Court still decided to go ahead with the appeal because the case had wider ramifications and clarity was needed on this issue .The protestors argued that the protest to protect the integrity of the laws of the country. They argued that it is for the democracy of the country.

JUDGMENT

The verdict applies to a protest of such a large protest, as large as at Shaheen Bagh, which have lasted for so long time. The court’s verdict strengthened that the right to protest is constitutional right but the court also said that this right can be restricted if it harms the other people’s right as it happened in Shaheen Bagh case. The protestors had blocked a stretch of the road formonths which caused a lot of problem to commuters.

The judgment was delivered bya three-judge Bench, comprising of Justices Sanjay Kishan Kaul, Krishna Murari and Aniruddha Bose. They stated that Article 19 was one of the cornerstones of the Constitution and it conferred two treasured rights on citizens —

  1. the right to freedom of speech and freedom of expression under Article 19(1)(a) and
  2. the right to assemble peacefully without arms under Article 19(1)(b).

The Court stated that these rights enable every citizen to protest against the actions or inactions of the State and to assemble peacefully and these rights have be respected and encouraged by the State. The court said the strength of a democracy such as ours lies in these rights. The Court , however, also noted that these rights are subject to reasonable restrictions.

The Court relied on the case of Mazdoor Kisan Shakti Sangathan v. Union of India and Ors and ruled that each fundamental right conferred to a citizen does not exist in isolation and it has to be balanced with every other contrasting right. The court said it was in this respect that an effort was made by it to reach a solution where the rights of protesters were to be balanced with that of commuters. The Court also sought to base its decision on the ground of public order and relied on an earlier decision in the case of Himat Lal K. Shah v. Commissioner of Police.

The Court said

“Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone“

The court said was that the protesters had blocked an important area of land and had caused a lot of inconvenience to commuters. The right to protest should not result in the infringement of another right  i.e. the right to free movement of other citizens.

It was held by the court that occupying a public place for the protests is not acceptable and the administration has the responsibility to prevent such encroachments and obstructions The Court noted that in the present case despite the fact that a considerable period of time had passed there was neither any action nor any negotiations taken upby the administration. It said that the respondent authorities had a responsibility but had failed to take to take suitable action. The court said that the protests in public places cannot go on indefinitely.

ANALYSIS

One important point that the court failed to consider was that site of the protest i.e. Shaheen Bagh was located in a Muslim-dominated community. It was the duty of the court to find and take into consideration the importance of the site of protest and to recognize that the protest are not be based on government convenience. The public places should not just be a place of common ground but should also act as a place where the voice and demand of the citizens can be heard and they feel comfortable and safe. Also the court did not take in account argument of the defendant that the road was blocked by the police and not the protestors.

Though no adverse order was passed by the court against the protestors one concern that the judgment raises is that in future times, this judgment can be used as a precedent to stop protests thus adversely affecting the right of freedom of speech and expression. The court took the ground of public order in its judgment but the inconvenience that was caused to commuters as a result of an assembly did not reach the level of a real threat to public order and hence there was no reasonable justification given by the court to place restriction on the freedom to protest.

The right to freedom of speech and freedom of expression forms basis of any democracy. It is a right that should be protected and should be the priority of the state. This right is indispensable to a democracy and must not be controlled. The court in present case has placed certain restrictions on the right but left a few unanswered questions . The court did not make it clear for how long the protests can be permitted. The judgment fails to provides a detailed justification for imposing the restrictions on this right and also does not properly justify the test the proportionality of the restrictions it imposed.

Thus it can be said that the judgment has left various unanswered questions and a lot of room for debate and will have an effect on right to protest in the future.

REFERENCES

  1. Amit Sahni v. Commissioner of Police and Ors
  2. Himat Lal K. Shah v. Commissioner of Police(1973) 1 SCC 227
  3. Mazdoor Kisan Shakti Sangathan v. Union of India and Ors(2018) 17 SCC 324
  4. Right to Protest v. Right to Mobility: Is Right to Protest Absolute? https://juriscentre.com/2021/04/19/right-to-protest-v-right-to-mobility-is-right-to-protest-absolute/

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