SC verdict on Shaheen Bagh leaves much to interpretation, will have far-reaching impact on protests

The Supreme Court disposed a batch of petitions in connection with the Shaheen Bagh protest on Wednesday, stating that public places cannot be occupied indefinitely and protests must be allowed only in designated areas. The apex court also admitted on Thursday that “dissent and democracy go hand in hand”, lending validity to the right to protest. The Shaheen Bagh protest, which began on 15 December, was cleared over 100 days later on 23 March after curbs were imposed on gatherings in view of the coronavirus pandemic. While the protest was on, the Kalindi Kunj-Shaheen Bagh stretch and the Okhla underpass remained blocked, restricting passage between Delhi and Noida. Interlocutors were appointed to hold talks with the protestors and reach a common ground between their demands and the need to ease the protest even as complaints about traffic woes continued to be reported. In the Shaheen Bagh case, a response to an RTI query had revealed that it was not the protesters but the Delhi Police that had blocked an alternative Kalindi Kunj Noida-Delhi road route. The 7 October verdict ignored the abovementioned fact, and laid the onus of removing blockades on the administration, adding that there was a failure on the part of the authorities to do so.

The court order could imply that the police may be given a free hand to act on such protests and adopt any measures deemed necessary to disperse agitations.

The amount of force used by the police that would be deemed appropriate had come under question when cops entered the Jamia Millia Islamia campus last year. It also then allows the police to deal with protestors inconveniencing the public without needing the court’s permission, as could be inferred from the line in the judgment that reads, “The courts adjudicate the legality of the actions and are not meant to give a shoulder to the administration to fire their guns from.” The disruption of traffic coming under the ambit of public order itself was raised as a question by experts. “There is a long line of Supreme Court judgments that define public order – public order is not the disruption of traffic. Public order is a threat to the very rule of law, maybe a riot or a large scale assault on the state, something as big as that. There is no evidence whatsoever that there was that violation of public order in Shaheen Bagh. Indeed reading the judgment, it is not even recorded as being alleged,” Supreme Court advocate Karuna Nundy told The Quint. The court also referred to a 2018 judgment in the Mazdoor Kisan Shakti Sangathan vs Union of India and another case pertaining to demonstrations at Delhi’s Jantar Mantar, pointing out that the court had then directed the police to devise a proper mechanism for limited use of the area for peaceful protests and demonstrations. But on 21 September, the court had observed, “We have to balance (the) right to protest and the blocking of roads. We have to deal with the issue. There cannot be universal policy as the situation may vary on case-to-case basis.” In yet another wavering stand between dissent and maintenance of order, the Bench referred to India’s emergence from colonial rule, and 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”. The Constitution, it pointed out guarantees “the right to protest and express dissent, but with an obligation towards certain duties”. If the court’s insistence on protesting at designated places is followed, protestors in Delhi have two options - Jantar Mantar or Ram Lila Maidan. This judgment could become a means to block protests in other parts of the city, which should ideally be allowed with prior permission. If the gathering of people in public spaces hindering the movement of people and traffic be a concern, would the court’s observations apply to activities of political parties too? The judgment laid blame on social media platforms for having the potential to create highly polarised movements. A bench of Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari said that technology, however, in a near paradoxical manner, works to both “empower digitally fuelled movements” and at the same time, contributes to “their apparent weaknesses”. This observation could also fuel authorities to impose a stricter rule of law on social media conversations around issues, such as the arrest of many students and activists, including Pinjra Tod members, in the case of anti-CAA protests. The vague definitions of public order, the extent of police’s role and power in reigning in order and the possible actions in the face of polarisation on social media platforms leaves a lot to interpretation and a room for case-by-case dealing for various scenarios, which has the dangerous potential to take any direction.