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HomeOpinionsRight to mobility v. right to protest: SC verdict on Shaheen Bagh

Right to mobility v. right to protest: SC verdict on Shaheen Bagh

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By Shelal Lodhi Rajput and Anukriti Randev

In the recent time, no legislation has triggered so much unrest and apprehension among people as the Citizenship Amendment Act (CAA) of 2019 in Indian context. The reasons behind the same is multidimensional as even some people have not understood the law in the litmus sense and there is not an iota of doubt that there is lot of miscommunication on the issue also by some people. It has led to protests, which have spread like bush fire across the country, involving all sections of the society leading Bollywood personalities and women in particular. The epicenter and hub of one of the longest protest on the CAA, NRC is Shaheen Bagh, the protest of Shaheen Bagh has blocked roads and cause a lot of problem to general problem that can easily be termed as a clear violation of their fundamental rights.

In a most significant development, the Supreme Court pronounced its verdict on the issue, where right to protest versus the right to mobility has been the major topic of discussion that was tabled before the hon’ble court. The protest laid to blockade of the arterial road connecting two major cities, Delhi and Noida for more than 90 days. The Supreme Court has categorically said in the judgement that:

  • Public inconvenience cannot be caused.
  • A protest cannot be indefinite
  • A protest if needs to the place should take place in a designated area.

Further, the most important observation that was made by court and it categorically said that “Peaceful protest is a constitutional right of protestors, peaceful protest should be allowed. But it does not mean that there can be a blockage, people can be inconvenienced or a protest which disrupts the normal life”

The protestors argued that the protest is for the democracy, protest is to protect the integrity of flaws in the country. Something which was passed in our Parliament both in Rajya Sabha and Lok Sabha, because the protest was against the Citizenship amendment Act. Subsequently, government said that they are right now not going ahead with it and the protest was supposed to protect the constitutional values. The court said that the protestors themselves did not adhere to the constitutional values i.e. that you cannot inconvenience others and in name of democracy you cannot create problems.

In whole of 1970’s and 1980’s the political party in city of Calcutta used to call “Bandh” (i.e. complete closure of whole city) and left party would ceased the cities it was either it is in the name of the interest of workers or in the name of some other excuse. But ultimately city was choked it deindustrialized West Bengal. So, protest in a way that empower people is useful but the same protest have been used by political parties and various other groups to not only stifle public life but protest can also used to deindustrialization, disturbance and issues which is not and cannot be a part and parcel of normal civic life in this country and the court says that the protest cannot be done in the way in which can people think they can do because India is a constitutional functioning democracy and protest cannot be create disturbance. It is clear from the recent development that people need to understand that people have a constitutional right to protest but protest also needs to respect right of others who do not want to get participate in the protest or want to get disturbed from protest.
The court while delivering its verdict on the balance between the right to protest and other rights in relation to the protests that took place at Delhi’s Shaheen Bagh this year, the court held that “Public spaces cannot be occupied indefinitely” The Bench of Justice Snajay Kishan Kaul, Aniruddha Bose and Krishna Murari held that “Dissent and Democracy go hand in hand”  The court in its judgement clearly said

We make it unequivocally clear that public ways and public spaces cannot be occupied in such a manner and that too indefinitely. Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone”

This judgement of SC appears to create a blanket ban on protests in public spaces, now the question is how is this going to affect us forward? Is this going to curb our rights in those places? Not really, when we look at the law the court cannot really do what its doing, it cannot impose a blanket ban. It can be substantiated by the earlier precedent of this very court itself. In 1972, a constitutional bench of the SC held that such blanket bans on protests in public streets are not possible in case of Himmat Lal K Shah vs Police Commissioner Ahmedabad. While there are restrictions that you can’t have people protesting anywhere. Nevertheless, the state cannot by law abridge or take away the right of assembly by prohibiting protest in a street or public place. The state can only make regulations and only impose reasonable restrictions in the interest of the public order.  You cannot take away the right to protest in a blanket way. Further, its not just the Supreme Court’s verdict in the past but also under the International law a blanket ban would violate the India’s obligation towards its commitment for International law.

The recent verdict is only applying to a protest of such a large protest, as large as at Shaheen Bagh, which have lasted for so long time. The court’s verdict strengthens that right to protest is constitutional right but it can be restricted if it harms the rights of other people as it happened in Shaheen Bagh case as the protestors blocked a stretch of the road for several months which caused a lot of problem to commuters.

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