The Supreme Court judgment on Shaheen Bagh, which said protests cannot inconvenience commuters, can have many ramifications.

Protests in New DelhiRepresentation photo
Delve Protest Monday, October 19, 2020 - 11:10

What is an appropriate place to voice dissent and express your objection to a decision that a government has taken? Can anti-establishment protests by citizens be held as per the choreographies of the elected government? These are some of the questions raised after a recent judgment of the Supreme Court, which observed that protests cannot cause inconvenience, and that public places cannot be occupied indefinitely. 

Hearing a plea against the Shaheen Bagh protests, the Supreme Court said, “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.” The apex court added, “We cannot accept the plea of the applicants that an indeterminable number of people can assemble whenever they choose to protest.” The court went on to call the sit-in protests against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC) a “grave inconvenience to commuters”.   

India’s history of dissent extends far past the protesters in Shaheen Bagh or the students at Jamia Millia Islamia University. Its records include the freedom struggle against colonial powers, and the fight against curtailment of civil liberties during the Emergency, where some of the most senior members of the BJP party got a taste of democracy in student activism. But the Supreme Court’s words have now raised a crucial question: If the state is handed greater control over democratic dissent, what is the purpose of protests?

‘About voicing dissent so that govt may notice’ 

Senior journalist Ammu Joseph says that dissent and protest are the lifeblood of a real, functioning democracy. “I think the judgment has unfortunately sought to corral and thereby limit people's democratic right to peacefully express their opposition to decisions and actions of any of the four estates of democracy, certainly the first three that make up the State,” says Ammu. 

Shaheen Bagh protests took place between December, 2019 and March this year along GD Birla Marg close to the Yamuna river in southeast Delhi. While the protests took place at the small stretch, the police had barricaded several roads leading to the protest venue, and not where the actual protests took place. While these barricades were a cause for inconvenience to Delhi’s commuters, the police had said that they were a security measure. 

Freedom fighter and resident of Bengaluru, HS Doreswamy calls the Supreme Court judgment unfortunate and says that it had opened a ‘book of ambiguity’ regarding the citizens’ right to protest indefinitely, if need be, in order to ensure that their voices are heard. 

At the age of 104, Doreswamy recently participated in the protests against the Farm Bills in Bengaluru. He argues that protests can cause inconvenience in extraordinary circumstances, which is sometimes required to draw the government’s attention. 

“Look at the protests for the three draconian Farm Bills. People were understanding of it because the protesters were voicing their concerns and their fears were being heard. Protests are for the people’s benefit and protesters know that public opinion for their cause is crucial. Causing inconvenience is not what protesters want, but when governments do not even want to listen to the people’s problems, that becomes an extraordinary situation. That’s when people have the right to protest and take to the roads if need be. During protests some inconvenience is caused to the public. But this makes governments act immediately,” Doreswamy emphasises. 

He recalls a protest he took part in 1935, where he and fellow protesters had laid down on the roads to stop trucks, loaded with imported goods, from entering the markets. “It was a road roko. And it worked. Protests are about voicing our opinion in a way that the government notices it,” he adds. 

But the Supreme Court in its judgment went on to say that “dissent against colonial rule cannot be equated with dissent in a self-ruled democracy,” raising further questions about the future of protests in the country. Is the purpose of protests different because India is now independent?

‘About holding govts accountable’

“Be it the British rule or the governments that rule today, they are not perfect. They can be oppressive and it is for this reason that the right to protest exists. People can write letter after letter to leaders. They can meet leaders and submit representations. If those who rule governments don’t pay attention to it, that’s when people protest. It's because people want to be heard. It is the only way people can express their anguish about the impact of a government’s decisions. The Supreme Court saying that dissent is different now that we are independent could pose problems in the future,” says HS Doreswamy. 

Doreswamy recounts the widespread protests during the Emergency in the 1970s, when the opposition to Indira Gandhi’s regime had agitated in order to highlight the injustices being perpetrated by the erstwhile administration. In 1975, Doreswamy recalls that he had written a letter to Prime Minister Indira Gandhi, criticising her method of administration. 

“I had asked her in that letter: Are you a Prime Minister of India or are you a dictator like Hitler? I was arrested and jailed for it. But I did not break my stance. When I was produced before the court, the judge had noted that I had every right to criticise the Prime Minister if I felt the authority’s actions were hurting me,” he recalls. 

Doreswamy says that in 1975, while student protests were widespread in the country, he too participated in several agitations in Karnataka. “We used to take out protest marches. We did use roads for these protests. We were not scared of being jailed because we fought for civil liberties and it was the right cause. Even when roads were blocked, people knew it was for a good cause,” Doreswamy notes, while adding that be it the colonial regime or the years of the Emergency, people in India have perpetually proved that protests are crucial to holding governments accountable.

While the protests during the Emergency were against an oppressive regime, in the case of Shaheen Bagh, the women were protesting against a legislation and an exercise they considered oppressive – the Citizenship Amendment Act and the National Register of Citizens. The members of the Muslim community were protesting not only against what they preceived as a discriminatory legislation, but also over the fact that the people were not consulted before such a law was passed. Videos of police using excessive force against protesters in Jamia Millia Islamia and Aligarh Muslim University were evident to show that the state is not beyond using coercive measures to curtail dissent. 

‘Up to the people to demand and secure rights’

Article 19(1)(b) guarantees every citizen’s right to assemble peacefully without arms. This is subject to reasonable restrictions, which pertain to the sovereignty and integrity of India. And to maintain public order, authorities are given the power to regulate this right. Throughout the history of India, protests by citizens have shaped the discourse and brought about important changes in the law. 

One cannot forget the way the protests and the collective anger over the 2012 Delhi gangrape moved the needle towards a change in the law. Sections like stalking and voyeurism were added to the Indian Penal Code, criminalising crimes against women. The Narmada Bachao Andolan led by activist Medha Patkar and spearheaded by Adivasis, farmers, environmentalists, brought out issues of the right to livelihood, the right to life to the fore. A protest and a subsequent movement for sexual harassment laws by rape survivor Bhanwari Devi pushed the introduction of the Vishakha Guidelines by the Supreme Court, which have now been shaped into anti-sexual harassment laws by the government. 

“I cannot actually think of many important policies, laws and other developments over the past several decades, especially any that uphold the rights of disadvantaged sections of society, that have emerged without democratic struggles, including campaigns and protests of various kinds, public interest litigation, and so on,” shares Ammu. 

“Almost everyone knows about the movements for independence from colonial rule and against the Emergency. But few remember that many of the changes in laws relating to women's rights and gender equality, for example, didn't drop down like manna from heaven. Nor did other critical laws relating to people's rights to information, education, work, food, and so on,” she adds. 

The State has rarely been proactive in securing the rights of the relatively powerless, says the journalist. “It has invariably been up to the people to demand their rights – and occasionally secure them, or at least glimpse the possibility of exercising them,” she adds.  

Student protesters at Jamia Millia Islamia University and Aligarh Muslim University were beaten by the police and BJP leaders called them "anti-national elements." While several BJP leaders have equated student protests to public nuisance, one must recall that some of the party’s taller leaders became public figures due to the protests they spearheaded during the Emergency. In 1974, Arun Jaitely, who was one of the most powerful ministers in Narendra Modi’s cabinet before his demise, had helped support the student protests in Gujarat and Bihar as a part of the JP Andolan. Jaitley was supporting the protests in Bihar and Gujarat, where students were rioting, setting government buildings on fire, pelting stones and declaring state-wide bandhs. All of this to highlight the grave malpractices perpetrated by the then Indira Gandhi government. 

The ambiguous, yet carefully-worded judgment, has raised concerns about the extension of the state’s powers to curtail protests, and in the process, stifle free speech. Elizabeth Seshadri, a lawyer from Chennai, who was also a part of the 2017 jallikattu protests in the city’s Marina Beach, says, “How can such systems inspire confidence? In Tamil Nadu, the police had outright said permission would not be given to anti-CAA protesters. Instead of strengthening the democratic process, it is obvious that this is a way to curtail the fundamental right to protest peacefully.” 

“It (the Supreme Court judgment) will no doubt strengthen the hands of those who view public protests with hostility or impatience. Besides the State, there are some citizens who are averse to any disruption of ‘public order’ and they generally belong to the vocal, influential classes, castes and communities, who take their rights for granted and don't seem to realise that the majority of their fellow citizens cannot afford to assume that they can claim their rights without a fight,” Ammu adds. 

Doreswamy maintains that governments have the capacity to become oppressive and of late, there has been a subtle curtailment of people’s right to protest. For instance, in Bengaluru, protests can be held only at Freedom Park and Maurya Circle – two designated places. Doreswamy says that if governments were encouraging protests and were open to hearing what the people had to say, there would be no need to protest to begin with. 

“Public spaces belong to the people. Like parks and roads. By imposing restrictions on where protests can be held, the government has an excuse to not grant permission for protests since the number of spaces are so few as it is. If protests should take place in designated spaces then the government should allot more spaces for protests. These were the leaders (referring to the ruling party) who fought against Indira Gandhi. They protested on roads for freedom of speech and expression. Now these same leaders are trying to curtail people’s right to protest, although in a very indirect way,” Doreswamy adds. 

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