Guest Post: The Shaheen Bagh Review Order – An Unreasonable Restriction on the Right of Assembly

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

[This is a guest post by Arsh Rampal.]

The Supreme Court, on 9th February 2021, passed an order dismissing the review petition filed by the anti-CAA protestors at Shaheen Bagh. The petition prayed for a review of the 2020 judgment in Amit Sahni v. Commissioner of Police (hereafter referred to as “Sahni”) and additionally prayed for clubbing the review with the petitions concerning the ongoing farmers protests. By dismissing the review, the court  has given finality to its reasoning in Sahni pertaining to the exercise of the fundamental right to peaceful assembly. Through this post, I attempt to dissect the judgment of the court and its implications on the right to peaceably assemble in India. The Court, in its judgment, also remarked upon ancillary aspects of the protest including the role of social media in protests. However, the same shall not be discussed in the post for it has little bearing upon its ratio decidendi.

Background of the Case

In December 2019, the Central Government enacted the Citizenship Amendment Act (hereafter referred to as “CAA”) which excluded certain persons from the definition of an “illegal immigrant” under the Citizenship Act, 1955 and relaxed the time requirement to obtain Indian citizenship by such persons. The various constitutional aspects concerning the legislation have been discussed on this blog previously, namely here, here, here and here.

The legislation sparked protests in several parts of the country, including at Shaheen Bagh in Delhi, which was a protest led by women in the form of a peaceful sit-in. As part of the protest, the protestors had occupied the Kalindi Kunj-Shaheen Bagh Road 13A, resulting in the shutting down of these routes by the administration. It was alleged that due to the blockade, there was an increase in traffic around the area and commuters had to take longer routes to travel to their destination, thus causing them inconvenience (although this was factually disputed). This led the petitioner to file a writ petition before the Delhi High Court praying for a direction to the relevant authorities, to remove the closure of the road. The High Court disposed of the petition on the first day, leading the petitioner to approach the Supreme Court by way of an SLP, praying for similar directions.

The Court’s Reasoning in Sahni

The reasoning of the court can broadly be categorised into three grounds. Firstly, that the right to peaceful assembly is subject to reasonable restrictions in the interest of public order, as envisaged u/a 19 of the Constitution. Secondly, there ought to be some balance between the rights of the protestors and the rights of commuters. Lastly, that indefinite occupation of public spaces is an illegitimate form of protest u/a 19(1)(b) of the Constitution.

Reasonable Restrictions in the interest of Public Order

The right to assemble peaceably without arms is subject to restrictions u/a 19(3) of the Constitution. Regarding such restrictions on the ground of public order, the court stated:

“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.”

The above statement is the only reference made directly by the Court apropos reasonable restrictions on the right to protest, and there has been no endeavour to expand on the various aspects of such restrictions as they apply to the facts of the case. The requirements of article 19(3) can be divided into three aspects, namely that there is a law imposing a restriction on the right, that the restriction is in the interest of public order and lastly, that the restriction is reasonable. Additionally, the Supreme Court has developed the doctrine of proportionality u/a 19 which requires that the restriction must be proportional to the purpose it seeks to fulfil.

The first aspect requires that any restriction on the right must be imposed by a law. In its 13-page judgment on the issue, the Court fails to mention or discuss any law that imposes restrictions on the right of the protestors in the present case. It is peculiar that the Court discusses restrictions in the context of the Himmat Lal K. Shahjudgment (discussing validity of rules under Section 33(1)(o) of the Bombay Police Act, 1951) and the Mazdoor Kisan Shakti Sangathan judgment (discussing orders passed against protestors u/s 144 of the Code of Criminal Procedure, 1973), yet fails to even make a passing remark on the law applicable to the protestors at Shaheen Bagh.

Let us now, for the sake of argument, assume that there is a law applicable to the present case such as section 144 CrPC, the Delhi Police Act, 1978, or any other law conferring general policing powers on the Delhi Police. While such laws are considered to be in the interest of public order, would they satisfy the requirement of reasonableness? In the context of protests and orders u/s 144, the Court has previously ruled that the restrictions imposed must be proportional to the right. While Section 144 by itself is a reasonable restriction on the right, its use must only be in situations where public disorder is imminent. The requirements of public disorder include aggravated threats to the rule of law in an area. A peaceful occupation disrupting traffic does not satisfy these requirements. The requirements of “in the interest of public order” u/a 19(3) have clearly not been met in this case.

Doctrine of Balancing of Rights

The crux of the judgment in Sahni can be summed up as an attempt by the Court to balance the rights of the protestors and the rights of the commuters. The judgment notes that the present case was not one of protests taking place in an undesignated area, but one of a blockage of a public way causing grave inconvenience to commuters (para 17). It relies upon the following excerpt from Justice K.K. Mathew’s opinion in Himmat Lal (para 70) to elaborate its reasoning:

“Streets and public parks exist primarily for other purposes and the social interest 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.”

The reliance on the doctrine of balance of rights is problematic for multiple reasons which have been discussed here. In the the present case, the application of the doctrine is misplaced for the following reasons. First, as stated above, the judgment has failed to provide an elaborate reasoning for restricting the right u/a 19(3). In the absence of an adequate reasonable restriction, it is incorrect for the Court to place reliance on the doctrine of balance of rights to limit the scope of rights u/a 19. Second, the Court has stated that the occupation of the road at Shaheen Bagh does not amount to a protest at an undesignated location, but a blockage of a public roadway. While I disagree with such a classification of the protest, such a statement can only be inferred to mean that in the absence of a protest, there is no exercise of a right by the protestors. The attempt to balance the right of protestors with the rights of the commuters in this case thus becomes an unnecessary exercise undertaken by the court. Third, there is no mention of the exact right which the commuters claim, and under which provision they derive this right, making it difficult to understand what exactly is the court balancing. Lastly, the Court’s reliance on J. Mathew’s opinion is selective. The following text precedes the aforementioned text quoted in Sahni:

“… Public streets are the ‘natural’ places for expression of opinion and dissemination of ideas. Indeed it may be argued that for some persons these places are the only possible arenas for the effective exercise of their freedom of speech and assembly.

70. Public meeting in open spaces and public streets forms part of the tradition of our national life. In the pre-Independence days such meetings have been held in open spaces and public streets and the people have come to regard it as a part of their privileges and immunities. The State and the local authority have a virtual monopoly of every open space at which an outdoor meeting can be held. If, therefore, the State or Municipality can constitutionally close both its streets and its parks entirely to public meetings, the practical result would be that it would be impossible to hold any open air meetings in any large city. The real problem is that of reconciling the city’s function of providing for the exigencies of traffic in its streets and for the recreation of the public in its parks with its other obligations, of providing adequate places for public discussion in order to safeguard the guaranteed right of public Assembly.”

Placing reliance on J. Mathew’s opinion to establish that in an attempt to balance the two rights, the protestors must yield to the commuters would thus be incorrect. There may be circumstances wherein public streets can be used by protestors to hold a public assembly in exercise of their right.

Time, Place and Manner of a Peaceful Assembly

The third and final aspect of the judgment is the discussion regarding time, place and manner of a peaceful assembly. It is stated that demonstrations expressing dissent must be in designated places only, and the occupation of public streets and spaces indefinitely is impermissible. An indeterminable number people cannot assemble whenever they choose to protest (para 17).The Supreme Court has consistently adopted an approach that the time, place and manner of peaceful assemblies can be subject to restrictions as long as the restriction are not be arbitrary or excessive, which has been highlighted in the Himmat Lal judgment. The approach undertaken in Sahni to limit the time, place and manner however fails this test for being excessive and disproportionate for multiple reasons which can be summed up as follows:

  1. It is inconsistent with Himmat Lal which recognises that the State has a monopoly on public spaces, and thus any prohibition on protests in public areas would be an unreasonable restriction. Such an interpretation is unsustainable in light of the fundamental character of the right to peaceful assembly.
  2. An approach that protests must only be in designated areas would result in a situation that all spontaneous protests and assemblies will be delegitimised. This is further evident from the order dismissing the review petition. Such a restriction cannot be said to be in aid of the right and is excessive and disproportionate.
  3. The judgment casts an absolute prohibition (blanket ban) on indefinite occupation as a manner of peaceful protest. Such a restriction is vague and arbitrary, as it is indeterminable at what point an occupation becomes “indefinite”. In the absence of any guidelines, issued by law, such a restriction by the Court is not only inconsistent with Article 19(3) and 14 of the Constitution, but goes beyond the judicial functions of the Court.

Concluding Remarks

The judgment in Sahni is an example of the Supreme Court failing to apply fundamental principles of constitutional law. The Court has failed to provide elaborate reasons to justify the grounds on which it has granted the prayer of the petitioner, and has departed from the approach taken in the very judgments it has relied upon. To sum up, the requirements u/a 19(3) have not been met, the exercise of balance of rights is unnecessary and misplaced, and the judgment imposes arbitrary and unreasonable restriction on the right. The excessive restrictions have chipped away the fundamental character of the right of peaceful assembly. The restriction has become the norm and the right the exception, an interpretation which is unacceptable under the Constitution. The judgment will become a tool in the hands of the State, and the common citizenry to break off protests, a trend which can be seen in the recent farmers’ protests. The judgment has the potential to cause immense damage not only to the rights of protestors, but human rights and constitutional jurisprudence which has been built over the years, and it is hoped that the same is remedied soon.

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