Why does the Shaheen Bagh judgment Intimidate Rights & Favors limitations

of Convenience over Right to Protest against the State: Case of Amit Sahni v.
Commissioner of police & Ors1

INTRODUCTION

The historical shaheen bagh protest was a peaceful women lead movement started in reaction
of the passing of discriminatory citizenship amendment act (CAA) by both the houses of
parliament namely loksabha and rajyasabha on 11th of December 2019 and more importantly
it sparked quickly after the police used force against protestors which are mainly students of
the jamia millia islamia university and caused violence inside the campus on the evening of
15th December 2019. Although in the present case hon’ble justice kishan kaul of the Supreme
Court mentioned in the order that protesting is such a right which can’t be taken away even
the legislation or its provisions are already challenged for its constitutional validity which
ultimately shows the wide scope of right to protest.

To begin with the petitioner in the present case filed a writ petition in the high court of Delhi
in search of clearance of the main protesting site against CAA coupled with national register
of citizens ( NRC ) known as shaheen bagh. But pertinent to note that Delhi high court
disposed of the petition and put the onus to decide this on Delhi police, then the petitioner
knocked the door of Supreme Court of India for consideration of this writ petition. Two other
writ petitions were also filed but were ultimately “dismissed as withdrawn” once the
objectionable protest site was vacated in March 2020 due to the sudden outbreak of pandemic
Covid 19. But In this case on 7 th of October 2020 the Hon’ble Supreme Court took some
additional steps and acknowledged that it should “pen down a few more guidelines for
clearness on the subject matter in relation of its wider ramifications.” This ultimately
attracted criticism from various legal experts and commentators’ particularly focusing on the
niche of constitutional law as this was clearly unintended aspect on the part of reliefs sought
by the petitioner hence the hon’ble SC kind of over stepped the settled rule of restraint which
was ultimately decided by supreme court in the past by virtue of various constitutional law

1
Supreme court of India, <
https://main.sci.gov.in/supremecourt/2020/2418/2418_2020_36_1501_24294_Judgement_07-Oct-2020.pdf >
( Last visited on June 20, 2021 )
cases. Moreover it’s pertinent to observe that required sense was lost from Supreme Court
logic on debate on wide legit reason of Right to Protest & how limitations must be logical.

Breach of the Settled Principle: Rule of Judicial Restraint

I remember the former Supreme Court judge Markandey katju observed in the past that
judicial activism can be converted into a untraced missile if not focused correctly the ex
Judge, collected considerable media consideration when he commented on the over reach of
judiciary. He said that the courts should rest dependence on the positive jurisprudence other
than sociological discipline. Law ought to be ethically separated from morality and religion.
So for a better democracy and society judiciary must exercise restrain when matters are of the
constitutional importance and additional relief was not sought by the petitioners as maybe it
can produce catastrophically consequences on personal liberty and right to protest of
individuals.2

The SC has time after time held3 that issues involving questions of constitutional importance
should not be adjudicated except its essential or necessary to provide relief in a particular
case by the court, also it was reiterated 4 by the Supreme Court that constitutional courts/ writ
courts can’t make a decision in a matter concerning constitutional issue in vacuum and the
court supposed to confine or limit themselves to contracted position raised before it and
refrain itself going outside the facts and issues before it but supreme court itself doesn’t
followed the same principle in the present case and tried to simplify an un required part on
protest and designated place which ultimately lead to shrinking of the right to protest and
dissent. On the whole, the Court is supposed to not come to a decision on questions5 “simply
for the function of the future”. This particular settled rule is not for formality or just in paper
i.e. visible in precedents it’s discovered and exercised for an important and vital norm which
ought to be visible in implementation because such rules in the legal sphere especially
involving constitutional issues at large effects public at large. Rationality and proportionality
needs to be adjudicated while applying such doctrines, material facts are crucial for the
2
Shurutanjya bharadwaj, balancing dissent protest and urban mobility the shaheen bagh judgment, human
rights blog, RGNLU,< https://casihrrgnul.wordpress.com/2020/11/23/balancing-dissent-protest-and-urban-
mobility-the-shaheen-bagh-judgment/ > ( Last visited on June 21, 2021)
3
Govt. Of National Capital v. Inder Pal Singh Chadha and Ors. , (2002) 9 SCC 461.
4
M/S. Kusum Ingots & Alloys Ltd v.Union Of India And Anr , CASE NO.: Appeal (civil) 9159 of 2003.
5
Central Areca Nut & Cocoa v. State Of Karnataka And Ors, AIR 1998 SC 2399.
judiciary to toil out a harmonious conciliation among the rights to make sure that no right is
unfairly constrained. IN THE PRESENT CASE the court unnecessary exaggerated the saga
and went on to widen the scope of this constitutional issue which was not sought in any
manner by the petitioner, also court didn’t used the rule of restraint at page number 6 the
Hon’ble court said that “Really speaking, the reliefs in the present proceedings have worked
themselves out.” Really speaking proceedings worked themselves out means therefore the
order ought to be ended there as the discussed case proceedings’ worked out in the present
case but court didn’t cared about the declaration of petition as in fructuous without clarifying
any position of law or legal principle for public in ream but didn’t know why court don’t feel
the need to apply this doctrine or rule which was propounded by the same court in the past
and continued to jot down or pen down a few more lines on the subject matter which court
thought that it has wider ramifications and carried on to fill up many more pages on rights of
protestors, convenience of other citizens and restrictions needed which was not supposed to
do by the highest court of India harming right to protest in a considerable and partially
permanent manner.

Shrinking of Rights and Democracy: delusion in the judgment

This judgment contributes to the shrinkage of rights of protest in an egalitarian democracy

because expressing in a recognized and designated place sounds utopian to the idea of protest
and expressing decent in a peaceful manner only because designated or non designated place
doesn’t have anything majorly to do with public order important to know that court favored
limitations of convenience over constitutional rights under article 19(1) (a) & (b) which
provided for free speech and freedom to assemble somewhere peacefully.

There are some fallacies and misconception on the precedents which was put forward by the
court in order and other things which the Hon’ble court has mentioned in the judgment
authored by justice kaul as court tinted on reasonable restrictions related to the autonomy and
sovereignty of the state and more importantly public order. The hon’ble SC relying on its
earlier decisions, one is mazdoor kisan Shakti v. union of India,6in which court mentioned
that there should be a balance in rights of commuters and protestors subsequently gave an
order to Delhi police and administration to act in their consciousness to make sure protestors
don’t occupied by protesters sine die. Court further said that previous permission from
authorities for protest like shaheen bagh case doesn’t negate the limitations put forth. And the
6
WRIT PETITION (CIVIL) NO. 1153 OF 2017, SC.
 7
second one was himat lal shah v. commissioner of police, Ahmadabad in this case
Supreme Court observed that restrictions like looking of permission for settling of place, time
and venue by the authorities is reasonable in nature. On the other hand it’s interesting to
know that in such cases court also opened up a scope by saying that concerned authorities
should not have unrestricted powers when it comes to the approval of permission or
application to the protesters respectively but in the current case court has forced an extra
obligation on the protestors which is not take up or occupy at any recognized public place
irrespective of prior permission of protest from authorities and police force, this paves way
for clearing of each protest site even by force via authorities and police. Ultimately
contributing to limiting the scope of protest and freedom of speech in an egalitarian
democracy.

The court focused on developing appearance of dissent towards state in an egalitarian society
ruled by democracy to one under the colonial era of our country court willfully suppress the
major essence of the right to protest under article 19 of our constitution by providing
concerned authorities the prudence unnecessary power to limit the procedure of using public
places where most of the protest are taking place the most recent example being farmers
protest in Delhi against 3 new farmer laws regarding contract farming.
This judgment holds a variety of variations as from perspective you may think that yeah it’s
reasonable but when you think rationally from practical point of view then you’ll realize that
the crux of court’s view in the present case that public ways and spaces can’t be engaged or
occupied for protest purpose for an indefinite period and the addition of designated and
organized places aspect to the judgment may be looks justified and reasonable prima facie but
on a careful reassessment you’ll realize that every protest in the earth should have to be in
public place most of the times as only if it’s in private premise or property then only it should
not amount to public protest as when it comes to public places which maximum protests are
in a democratic society then obviously it will cause some sort of inconvenience to a particular
individuals or maybe public at large , this delusion and dilemma looks impractical sometimes
in this case decided by the highest court of India as it will favor limitations of inconvenience
over right to protest which in turn is a fundamental right in a country governed by the
constitution of India and also court logic in this case is in conflict with its evolving
jurisprudence on fundamental rights with respect to right to protest especially as favoring
restrictions and breakers is not a usual character seen by the highest court of the country also

7
Himat lal shah v. commissioner of police, Ahmadabad, 1973 SCC (1) 227.
the hon’ble bench observed that in an egalitarian democracy governed by constitution like
ours “the right to protest and utter dissent comes, but with an commitment towards certain
duties” The court observed, on the same instance noted constitutional law expert Mr. Gautam
Bhatia8 said that such ought to be obligation in between rights and duties risks the right of the
minority and weaker section of the society as dependence on duties suddenly comes into the
canvass seems very accurate and true to myself also.

Did the Shaheen bagh protest violate public order?

Eventually, there was an important issue before the SC which was to assess whether the
protest carried out is in contravention with the restriction to right to protest namely public
order mentioned in clause 2 and 3 of article 19 but in this regard court’s observation seems
incomplete & missing. Court focused largely on balancing of rights of protestors and
commuters while dealing with this case and also tried various checks and balances to manage
the same. Although court never mentioned specifically about which fundamental rights of the
commuters has suffered by temporary blockage of the road which altogether comprise of an
alternate route to reach Noida and nearby areas.

In the non appearance of any meticulous discovery or finding of any specific damage to the
public at large, Supreme Court exaggerated the right of normal public inconvenience contrary
to the fundamental rights pertinent to note that there were reports in the public domain that
the chief reason sometimes appears to be police forces which blocked the road and its
surroundings near the shaheen bagh area. Therefore it’s not unfair to say that there is no
finding by the hon’ble court which specified that blockade or protest amounts to infringement
of public order which is a restriction to the right to protest.

Conclusion

On a concluding note I would like to say that the main observation of the supreme court of
India in the preset case favors the limitations of restrictions over matter of rights guaranteed
by the constitution of India as public spaces and ways are the only places where every major

8
jahnavi sindhu and vikram aditya narayan, why shaheen bagh verdict threatens rights & favors restrictions,
The QUINT,< https://www.thequint.com/author/606885/jahnavi-sindhu-and-vikram-aditya-narayan > ( Last
visited on June 25, 2021)
protest takes place in the past and present as well for e.g. farmers protest in Delhi, the highest
court which always remain intact to protect the liberty of an individual in general, favors
unspecified restrictions in the present case, also the violation of settled rule of judicial
restraint is overlooked by the court and went on to clarify the unwanted guidelines which was
not even sought by the petitioners while deciding an important constitutional issue in vacuum
court unknowingly gave a superior power to authority for stopping and destroying any protest
which takes place in this country all of this is evident of the picture shrinking of free speech
and liberty in our country created worldwide In the recent times, also the concept of
submitting any report or anything before the bench needs to change when matter is of
constitutional importance and required transparency and credibility for public in general.9

A powerful egalitarian democracy recognizes that laws, policy and restrictions are looked for
all the section of society irrespective of any sort of discrimination but this protest which was
lead by elderly females in shaheen bagh against a discriminating law CAA joined with NRC
on the basis of religion fighting for the virtue of their citizenship in winter season , but such
fighting spirit & resilience against state goes in vain when the strongest court put up a
generalized observation that no protest can take place in public spaces indefinitely even
though you have permission of authorities for expressing dissent ultimately shrink the dissent
and protesting rights of citizens prima facie in a secular country like India, a review petition
after this judgment was pending before the SC for a bit long but again on 12th February 2021 ,
the supreme court went on to dismiss the review petition arising solely out of this.

9
Snehal Dhote, “Right to Protest v. Convenience of the Public – The Indian Supreme Court’s Decision on
Shaheen Bagh Anti-CAA Protests”, (OxHRH Blog, October 2020), < http://ohrh.law.ox.ac.uk//right-to-protest-
v-convenience-of-the-public-the-indian-supreme-courts-decision-on-shaheen-bagh-anti-caa-protests > ( Last
visited on June 27,2021 )