SHAHEEN BAG JUDGEMENT -Oct 7, 2020 AMIT SAHNI case
by Justice Kaul
1. It was pleasant surprise to see Shaheen Bagh judgement (Amit Sahni v Commissioner of Police, Delhi) in 13 pages, 23 paras when the issue involved was art 19 (1) (a) and (b) and the controversy was Shaheen Bagh.
2. The judgement rejected the argument of "R" model of democracy (Rights model) and reiterated the "RR model" (Rights with restrictions model). It lays emphasis on D4-Democracy, dissent, demonstration and designated place. Democracy cannot survive without dissent. Dissent can be expressed in the form of demonstration. But the right to dissent and demonstration is limited by designated place else it "would only lead to a chaotic situation". [But I think the authorities ought to see that the designated place rule under D4 does not lead to D5 ie deserted place rule.]
3. The Court also reminded that the protest during colonial rule and democratic rule is not similar thing. Democracy gives rights and imposes obligations.
4. The conflict between art 19(a) and (b) vis a vis 19(d) was noticed and balance was attained. However, art 19(f) was equally in conflict which remained a subconscious element in the judicial process.
The Supreme Court had 7 hearings. In Feb-5, Sept-1, Oct-1.
Initially it was with the division bench of Justice Sanjay Kishan Kaul and KM Joseph.
07-02-2020---- hearing, Application for permission to file additional documents/facts/annexures is allowed,
10-02-2020----- Issue notice returnable on 17.02.2020.
17-02-2020----- The Court observed that
despite article 32 challenge to CAA, the right to protest is not taken away.
With people with different points of view, demonstration in public ways will lead to chaotic situations. [Indeed the mood of the court was clear on Feb 17 that such demonstration is misuse of art 19 and rightly so.]
such protests on public ways should stop everywhere.
two interlocutors appointed, Mr. Sanjay R.Hegde and Mrs. Sadhana Ramachandran, learned counsel
24-02-2020--- Report in sealed cover submitted by interlocutors.
Meanwhile many interverner applications were received.
26-02-2020--- As there were riots in Delhi, the Supreme court was expected to do something on riots. However, the Supreme court framed issue for clarity----whether the persons who are aggrieved by a legislation can sit on the road in the area which is known as Shaheen Bagh. It held that the High court, Delhi has already hearing on riots, therefore the Supreme court will not takeup any other issues.
21-09-2020---Bench changed
Though the date was given in March but due to covid it was heard in September. Meanwhile the protest was over due to a pandemic.
On this date many petitioners either withdrew the petition or were not present. The Court observed that the petitioner lost interest in the petition and also that “supervening circumstances have made any direction for relief not necessary at this stage.”
The bench composition changed. Now it was Justice Sanjay Kishan Kaul, Justice Aniruddha Bose, Justice Krishna Murari. [if someone wants to mislead or create disrespect, distrust in the Supreme court s/he can say that initially a division bench with Justice KM Joseph was hearing. He was from a minority community. The protest against the Citizenship Amendment Act, 2019 is also about minorities' concern. A person who wants to create confusion as to the integrity of judges and the government can state that KM Joseph heard most of the hearings. But in the second last hearing, ie Sept 21 a new bench was set up. It had no judge of the minority community. A propagandist can imagine that the Government must have exerted pressure on CJI and the bench composition was modified. What was the need to modify? Since the last few months and indeed the last few years, a hate campaign against the Supreme court and the Supreme court judges are going on. They amount to contempt, tarnish the image of judges and cause huge damage to the reputation of the Supreme court.]
07-10-2020—
The decision came in. The heads in colour and the sentences in bold are mine. As PDF judgement has been changed to word (non PDF was not available) there are some problems in settings. Pl bear with me.
The analysis of this author suggests that the judgement can be read under following heads--
Introduction
Philosophical
Factual Introduction
Delhi High court decision
Two interlocutors
Interlocutors failed as protestors had Cross views
Hand of God
Argument of absolute right of peaceful protest
Prior permission essential but clear regulations for permission equally essential
Protest against colonial rule and democratic rule : distinction
Pubic Ways can not be occupied
Shaheen bag--undesignated as well as blockage
Technology digitally fuelled movements and risk
Shaheen Bagh-strength and weakness
Criticism of HC And Police Administration
Introduction
Philosophical
Factual Introduction
Delhi High court decision
Two interlocutors
Interlocutors failed as protestors had Cross views
Hand of God
Argument of absolute right of peaceful protest
Prior permission essential but clear regulations for permission equally essential
Protest against colonial rule and democratic rule : distinction
Pubic Ways can not be occupied
Technology digitally fuelled movements and risk
Criticism of HC And Police Administration
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3282 OF 2020
AMIT SAHNI …APPELLANT
Versus
COMMISSIONER OF POLICE & ORS. …RESPONDENTS
J U D G M E N T
SANJAY KISHAN KAUL, J.
PHILOSOPHICAL INTRODUCTION
1. 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.
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.
FACTUAL INTRODUCTION
The Legislature, in its wisdom, enacted the Citizenship (Amendment) Act, 2019, which has its share of supporters and opponents. The Legislature performed its task. A section of the society, aggrieved by this legislative amendment, has filed petitions before this Court under Article 32 of the Constitution of India, assailing the constitutionality and legality of this amendment, which is pending consideration. There is no stay of the legislation for the purpose of record.
There have been protests against this legislation in Delhi and in different parts of the country. We had noted in our order dated 17.02.2020 that despite the law facing a constitutional challenge before this Court, that by itself will not take away the right to protest of the persons who feel aggrieved by the legislation. We, however, simultaneously noted that the question was where and how the protest can be carried on, without public ways being affected.
Delhi High court decision
The aforesaid was in the context of a petition which was originally filed before the Delhi High Court, as Writ Petition (Civil) No. 429/2020, which was disposed of on the very first day, i.e., on 14.01.2020. The grievance made in the petition was that the persons opposing the Citizenship Amendment Act and the National Register of Citizens, the details of which were yet to be propounded, had
adopted a method of protest which resulted in the closure of the Kalindi Kunj- Shaheen Bagh stretch, including the Okhla underpass from 15.12.2019. It was submitted that the public roads could not be permitted to be encroached upon in this manner and, thus, a direction be issued to clear the same.
The High Court directed the respondent authorities to look into the grievances ventilated by the petitioner in the writ petition in accordance with the law, rules, regulations and Government policies, but simultaneously, it asked the respondent authorities to keep in mind the larger public interest as well as the maintenance of the law and order. It was also emphasised that the respondents had all the powers, jurisdiction and authority to control traffic wherever protests or agitations were going on, in the larger public interest. In such a situation, it was observed that no specific writ, order or direction can be issued as to how to handle the agitation or protest, or even the place of protest and traffic, as the same would be determined based on the ground reality and the wisdom of the police, especially where situations may keep changing every 10 minutes.
However, since the situation remained the same, the petitioner therein filed the present appeal by way of a Special Leave Petition against this order of the High Court.
We may note that intervention applications were also filed by parties claiming to have the best interests of the agitators in mind, or rather having sympathy for them. In our order dated 17.02.2020, we had put to the learned counsel of one of these applicants our concern that there may be persons of different points of view who may tomorrow seek to emulate this protest and such a scenario would only lead to a chaotic situation. Such kind of protests were, thus, required to cease on public ways everywhere.
two interlocutors
In our endeavour of pursuing an out of the box solution, we had considered it appropriate to appoint two interlocutors - Mr. Sanjay R. Hegde, learned senior counsel who was present in Court and Ms. Sadhana Ramachandran, who is a mediator trainer, to meet the protestors at the site. The interlocutors made appreciable effort and submitted a report before this court, which was taken note of by us on 24.02.2020. We had perused the report and 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. However, unfortunate developments in other parts of Delhi required us to adjourn the proceedings.
interlocutors failed as the protestors had cross-purposes among them
We had the benefit of a second report received on 22.03.2020 and perused the same. We believe that 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 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. While the women protestors had sat in protest inside the tent, there was a huge periphery comprising mainly of male protestors, volunteers and bystanders who all seemed to have a stake in the continuance of the blockade of the road. Even after the 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 the tent having a connection with the protest. While the tent was occupying half of the carriageway, the remaining half of the carriageway 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. 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 the protestors not fully realising the
ramifications of the pandemic, coupled with a general unwillingness to relocate to another site.
We are conscious that we chartered a different path and thought of an out of the box solution towards an effort which can loosely be called a mediation. However, this did not produce a solution. But then, we have no regrets as we are of the view that it is better to try and fail, than not to try at all!
hand of God
The hand of God subsequently intervened and overtook the situation as not only our country, but also the world grappled with the Coronavirus pandemic. This pandemic, by its very definition, required coordination across the country and even beyond the borders of our country. This resulted in repeated appeals of the desirability of seclusion as a method to fight the disease. Greater wisdom prevailed over the protestors at the Shaheen Bagh site and the site was cleared, albeit with some police action to remove the aforementioned structures. The pandemic has, however, not seen its end and we are still battling with the same. Thus, really speaking, the reliefs in the present proceedings have worked themselves out.
absolute right of peaceful protest-No
We, however, pen down a few more lines for clarity on the subject on account of its wider ramifications. Learned counsel for the applicants Mr. Mehmood Pracha has sought to canvass that there was an absolute right of peaceful protest, both in respect of space and numbers. He submitted that the right under Article
19(1)(a) and 19(1)(b) of the Constitution of India are only circumscribed by the provisions of Clauses (2) & (3), and the only applicable aspect would be ‘public order’, but such restriction must be reasonable in character. On the other hand, the appellant herein sought to contend that such a situation should be avoided in the future and some norms may be laid down.
prior permission essential with clear regulations-Himat Lal K. Shah
Mr. Tushar Mehta, learned Solicitor General referred to judicial pronouncements to rebut the case sought to be made out by the applicants. In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad ,1 a challenge was made to the rules framed by the Commissioner of Police, Ahmedabad, by the powers conferred under Section 33(1)(o) of the Bombay Police Act, 1951. One of these rules required prior permission to be taken for the holding of public meetings. The Supreme Court opined that the State can only make regulations in aid of the right of assembly of each citizen and can only impose reasonable restrictions in the interests of public order. With regard to whether or not these rules violated Article 19(1)(b) of the Constitution of India, it was held that while the State cannot impose any unreasonable restrictions, a right to hold meetings on public streets was subject to the control of the appropriate authority regarding the time and place of the meeting and subject to considerations of public order. However, as the rule requiring prior permission of the concerned authority did not
contain any guidance as to when such permission to hold a public meeting may be refused, it was found that the same conferred arbitrary powers and gave an unguided discretion to the concerned authority, and this was accordingly held to be ultra vires Article 19(1)(b) of the Constitution.
In Mazdoor Kisan Shakti Sangathan v. Union of India., this Court was concerned with regulating the aspect of demonstrations in the earmarked space by the concerned authorities at Jantar Mantar. The judgment endeavoured to emphasise on the principle of balancing the interests of the residents in the area vis-à-vis the interests of protestors to hold demonstrations at Jantar Mantar. The concerned police authority was directed to devise a proper mechanism for the limited use of the Jantar Mantar area for peaceful protests and demonstrations and to lay down parameters for the same. With regard to the orders being passed under Section 144 of the Code of Criminal Procedure, 1973 prohibiting activities like holding public meetings, processions, etc. in areas in and around the Parliament area, the Court noted that the tenor and language of such orders indicated that the concerned authority was to examine every request and take a decision as to whether it should or should not allow the proposed demonstration, public meeting etc., keeping in view its likely effect, namely, whether it would cause any obstruction to traffic, danger to human safety or disturbance to public tranquility etc. However, as such orders were repeatedly being passed, the same were held to amount to create a situation of perpetuity, and also amounted to what would be equivalent to the “banning” of public meetings, demonstrations, etc. The police and other concerned authorities were accordingly directed to formulate proper and requisite guidelines for regulating protests in and around the area.
protest against colonial rule and democratic rule : distinction
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. Additionally, as was discussed in the Mazdoor Kisan Shakti Sangathan case, 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. It was in this respect, that in this case, an attempt was made by us to reach a solution where the rights of protestors were to be balanced with that of commuters.
Pubic WAYS can not be occupied
However, while appreciating the existence of the right to peaceful protest against a legislation (keeping in mind the words of Pulitzer Prize winner, Walter Lippmann, who said “In a democracy, the opposition is not only tolerated as constitutional, but must be maintained because it is indispensable”), we have to make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.
shaheen bag--undesignated as well as blockage-
The present case was not even one of protests taking place in an undesignated area, but was a blockage of a public way which caused grave inconvenience to commuters. We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest. Justice K.K. Mathew in the Himat Lal case4 had eloquently observed that “Streets and public parks exist primarily for other purposes and the social interest
See (supra)
promoted by untrammeled exercise of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion.”
TECHNOLOGY, digitally fuelled movements and risk
Furthermore, 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.
strength
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;
weakness
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.
Shaheen Bagh-strength and weakness
Both these scenarios were witnessed in Shaheen Bagh, which started out as a protest against the Citizenship Amendment Act, gained momentum across cities to become a movement of solidarity for the women and their cause, but came with its fair share of chinks - as has been opined by the interlocutors and caused inconvenience of commuters.
We have, thus, no hesitation in concluding that such kind of occupation of public ways, whether at the site in question or anywhere else for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions.
CRITICISM –HC AND ADMINISTRATION-
We are also of the view that the High Court should have monitored the matter rather than disposing of the Writ Petition and creating a fluid situation. No doubt, it is the responsibility of the respondent authorities to take suitable action, but then such suitable action should produce results. 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. Unfortunately, despite a lapse of a considerable period of time, there was neither any negotiations nor any action by the administration, thus warranting our intervention.
We only hope that such a situation does not arise in the future and protests are subject to the legal position as enunciated above, with some sympathy and dialogue, but are not permitted to get out of hand.
We, accordingly, close these proceedings, once again expressing our appreciation of the difficult roles played by the interlocutors.
The Civil Appeal stands disposed of, leaving the parties to bear their own costs.
…….J. [SANJAY KISHAN KAUL]
…….J. [ANIRUDDHA BOSE]
NEW DELHI. OCTOBER 07, 2020.
……….J. [KRISHNA MURARI]
