Public Places Cannot Be Occupied Indefinitely: Supreme Court
The recent judgment of the Supreme Court on the Shaheen Bagh protest, held that “public ways and public spaces cannot be occupied in such a manner and that too indefinitely.” While acknowledging the right to dissent, the Court stated that “demonstrations expressing dissent have to be in designated places alone.”
• Every citizen has the right to assemble peacefully and protest against the actions or inactions of the state under Article 19(1)(a).
• The same must be respected and encouraged by the state, for the strength of a democracy, which is the cornerstone of the Constitution.
• The fundamental right under Article 19(1)(a) subject to reasonable restrictions under Article 19(1)(b), pertains to the interests of the sovereignty and integrity of India, public order and to the regulation by the concerned police authorities.
• Section 144 of the Code of Criminal Procedure, 1973, prohibits activities like holding public meetings, processions, etc.
The Supreme Court held that
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 democracy. Our Constitutional scheme comes with the right to protest and express dissent, but with an obligation towards certain duties.
In Himmat Lal K Shah v Commissioner of Police, Ahmedabad and Anr, 1973, Supreme Court held that while the state cannot impose any unreasonable restrictions, a right to hold meetings on public streets is subject to the control of the appropriate authority regarding the time and place of the meeting.
In Mazdoor Kisaan Shakti Sangathan v Union of India and Anr, 2018, the Supreme Court was in favour of regulating the aspect of demonstrations in the earmarked space by the concerned authorities at Jantar Mantar. The judgment endeavoured to emphasise 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.
The problem here is that the state invokes protection of public order as a reason to restrict a protest, and then it has to prove the “precise nature of the threat and the specific risks posed.” This was also something laid down by the Supreme Court in January this year in the Anuradha Bhasin judgment on the restrictions on press and freedom in Jammu and Kashmir.
Legally speaking, future protests—as long as they are peaceful and do not create a threat to public order—should not be restricted only to designated areas, and should still be able to occupy public spaces. Completely blocking a road for an extended period of time may eventually become an unacceptable impediment to the freedom of movement, but this cannot be the grounds to prevent any such protest right at the start.
It may also be argued that the Court’s observations in this judgment only apply in situations where the protest is as large as at Shaheen Bagh, occupies a full road completely, and is going on for a long period of time.
The tenor and language of such orders indicated that the concerned authority is 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, that is, whether it would cause any obstruction to traffic, danger to human safety or disturbance to public tranquillity, etc.
Such orders were repeatedly being passed 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.
The authorities are required to set out proper and precise guidelines, so that in the future, the constitutional right to protest does not hinder public movement.
PEPPER IT WITH
Part III of theConstitution, Preamble of the Constitution in pith and substance, The Right to strike