SC's Shaheen Bagh judgment represents genuine attempt to engage with diversity of protest
The judgment arose in a writ petition targeting the closure of a stretch of road, from Kalindi Kunj to Shaheen Bagh, including the Okhla underpass from 15 December last year
The Supreme Court has finally pronounced its verdict on one aspect of a burning issue with which the country was concerned before the pandemic: The Citizenship Amendment Act (CAA). Unfortunately, the judgment is only in the writ petition seeking action from the administration to clear the protests and the challenge to the constitutionality of the CAA remains undecided.
The immediate reactions to the judgment, as seen in social media, have either taken the judgment as an affirmation of their stance that the whole protest was illegal or have criticised the judgment stating that it has the effect of stifling citizens' right to protest and their Fundamental Right of assembly. The first is completely unfounded because the judgment is careful to affirm the importance of the right of the protestors and the importance of dissent in a democracy. The latter also merits closer examination with a holistic view of the entire judgment and the interim orders passed by the court in the matter, including appointment of interlocutors and attempts at mediation.
It is important to remember that the judgment arose in a writ petition targeting the closure of a stretch of road, from Kalindi Kunj to Shaheen Bagh, including the Okhla underpass from 15 December last year. Taking off from this, and dealing with a sensitive issue, the court took a conciliatory approach and appointed two eminent persons as interlocutors to try and resolve the issue, and open the blocked public way. Despite the best efforts of the interlocutors, the situation could not be resolved. From contemporaneous reports, it appears there were also suggestions from those supporting the protests that there were alternate routes which could ensure that the public way is not blocked.
The focal point of the criticism of the judgment seemingly arises from a few statements such as “demonstrations expressing dissent have to be in designated places alone”. These statements cannot be read as the main thrust of the judgment but rather as stray observations.
Balancing two rights is always a tricky issue. So when there is a conflict between a right to access a public way and a right to protest, it is the duty of the court to ensure that one does not step on the toes of the other. That is precisely what the court has sought to do here.
It is important to closely read the crux of the order of the court. The court also decries the failure of the administration to negotiate with the protestors. While laying down the legal position that protests cannot occupy public ways and that the administration is under an obligation to ensure that it doesn’t happen, it also states that such situations are prevented “with sympathy and dialogue”.
Let us also recognise this judgment for what it is not. Courts have often taken up such issues as part of wide-ranging PILs, say one relating to encroachments on public roads, and have passed orders without regard to the rights of the persons who would be affected. The court in this case did not take that route, but a made a genuine attempt to engage with the diverse voices involved.
At the same time, the court should be mindful of the other criticism that while it has been very quick to decide on the legality of the method of protest, it has remained silent thus far on the subject of the protest, though the ramifications of the latter are far greater. There isn’t even an expectation of a verdict on the challenge to the constitutionality of CAA soon. This must soon be remedied to avoid any perception of bias.
The author is an advocate on record at the Supreme Court. Views expressed are personal
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