With Shaheen Bagh ruling, Supreme Court gifts state more powers to control democratic dissent

When the Supreme Court of India last week pronounced its judgement in relation to an appeal against a Delhi High Court decision regarding the protests in Delhi’s Shaheen Bagh neighbourhood, it gifted the state significant latitude in controlling democratic discourse.

The agitation against the Citizenship Amendment Act had started in mid-December and continued for 101 days. The Supreme Court ruled that protests can be held only in designated places.

Much of the judgement is not binding as there no longer a dispute to be resolved. However, the fact that the court has chosen to weigh in on such a divisive issue when it clearly did not need to holds considerable indicative value.

The original petition in the Delhi High Court was against the closure of some roads on account of the Shaheen Bagh protests. The petitioner had asked for the roads to be reopened to avoid the inconvenience to daily commuters. While the High Court urged the relevant local authorities to consider the grievances of the petitioner, it refused to issue a categorical direction specifying particular steps to be taken.

It noted that the situation regarding agitations and protests is inherently fluid and it would not be appropriate to issue rigid directions. While it urged the authorities to balance the larger public interest with the need to maintain law and order, it emphasised that such decisions depend on the ground reality and could not be taken from the confines of a courtroom.

Pandemic intervenes

The Supreme Court, for its part, acknowledged that the relief asked for in the petition has already been resolved without the need of judicial intervention. Due to the Covid-19 pandemic, the protesters called off the protest. The petition could have been disposed of as the cause of action had become infructuous.

However, throughout the proceedings of the case, the Supreme Court has shown a noticeable tendency to exceed its functional remit. The relief sought for in the original petition was confined to the closure of roads caused by the Shaheen Bagh protests. However, in its interim order dated February 17, the court generalised the issue, expressing concern about the form of protest in the Delhi neighbourhood being emulated by others.

In addition, instead of ruling on the legal merits of the case, the court had deputed interlocutors to mediate with the protesters. While the court has tried to pass if off as an innocuous “out of the box effort, the reports of such interlocutors have been then used by the court to present an unfavorable, generalised critique of the protest.

Problematic rhetoric

Even if one were to ignore the fact that the court did not have occasion to engage with the issue of people’s right to protest in general, the rhetoric of the court is deeply problematic. In para 18 of the judgement, the court has discussed the impact of technology on protest movements. It talks about the empowering nature of technology along with the polarised environment that can be created through use of social media and cites Shaheen Bagh as an example of this.

In the next para, the courts holds, “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…” While earlier in the judgement, the court has noted the constitutionally correct proposition that the right to peaceful assembly is not absolute, it is difficult to accept the feeling that the ruling of the court, at least in part, is based on its own pointed commentary of the Shaheen Bagh protest.

‘Grave’ inconvenience

While the court talks about the need to balance the rights of the protesters with that of the commuters, at no point does it elaborate on the “grave” inconvenience being caused to commuters. It does not examine if the commuters had any alternate routes available or the number of commuters who were being affected by the road closures. The court did not bother to examine if the roads closed by the Delhi police actually needed to be closed. The connection between the Shaheen Bagh protests and the inconvenience to commuters has been assumed without any effort to establish its factual foundation.

The court has sought to distinguish between dissent under the colonial rule and dissent in a democracy with an implication that the mode and manner of dissent in a democracy ought to be more restrictive than it was under the colonial rule.

The court went on to say that demonstrations of dissent can only be organised in “designated places”. While the court has been eager to lay down norms regulating the expression of dissent and protest, it is at no point bothered about deliberating on the state’s role in identifying such designated places. Does the state have an unlimited discretion in specifying designated places? Can the state effectively diffuse the demonstrative effect of dissent by marginalising the location of protest? Is it not ironic that the state against whom the dissent is to be expressed also gets to so overwhelmingly regulate how a peaceful protest is to be held?

The court has failed to engage with these implications of its observations.

The right to peacefully assemble is subject to reasonable restrictions on the grounds of sovereignty and integrity of India and public order. The reasonable restrictions are prescribed by the legislature or executive and the judiciary’s role is to examine the constitutional permissibility of such restrictions. It is not the job of the judiciary to prescribe restrictions. But that is precisely what the court has done – and that too in a case where the core dispute had already ceased to exist. We can be certain of one thing; now that the court has done it, the government won’t have to.

Rangin is a faculty at National Law University Odisha and has recently completed his Fulbright Post-Doctoral Fellowship from Harvard Law School.