Right to Protest, Restrictions and Democracy: Supreme Court and the Chilling Effect

Recently in the case of Amit Sahni v. Union of India, the Supreme Court passed a judgment on an infructuous matter which will have a long-lasting effect on civil liberties, especially the right to protest. The judgment of the Court feels like a judgment written by the central government in furtherance of an ‘executive court’. The 3-judges bench creates a chilling effect on the free speech and expression and the right to assemble peaceably (without arms).

The matter relates to the protests being held that Shaheen Bagh (New Delhi) and it was filed in February 2020. The protestors at Shaheen Bagh were dispersed in March after the Nation-wide lockdown which, ‘usually’ lead to dismissal of the matter. The judges ignored the factual matrix present in the case and the reasons for blockade were not because of the protestors, but the administration (police) which blocked the nearby roads and public routes. The Court classifies the constitutional and peaceful protests as “encroachments or obstructions.”

What did the court say?

The Court recognised the right to protest and the right to dissent in a democracy. The Court held that the Articles 19(1) (a) and (b), “in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State.” Then, the Court moves onto the “reasonable restrictions” stated under Article 19(2) and (3). The judgment looks like as if the norm is turned into an exception, and the exception is now the norm. The Court tried to balance the right to protest with the right of other citizens to commute. It must be noted that the balancing is not done by applying the principles of proportionality, but by presuming that the protests ‘always’ disturbed the smooth traffic and commute of the citizens. The Court did not accept the plea that “an indeterminable number of people can assemble whenever they choose to protest.” This creates a chilling effect on the right to protest – the court cannot sit as an executive and lay down policies. Suppose the government plans to make some amendment in the Constitution which infringes the basic structure of the Constitution, then should the citizens sit quietly and just witness the democratic backsliding or come on the streets to express their will? As Gautam Bhatia says “in today’s day, it is important to retrieve and to build constitutionalism without the Courts, even as it remains equally important to continue to engage with and in the courts.” The check on the executive power must come from the fourth branch of democracy, which is the civil societies, media and the citizens. (See the blog on Executive Aggrandizement and democratic backsliding)

The Right to Assemble Peacefully and the Right to Protest

The rights are guaranteed under clause 1 of Article 19 which are not absolute. The restrictions on those rights placed under clause 2-6 cannot be read widely, but narrowly. They are the exceptions to the rights and must be narrowly tailored. The Supreme Court in the case of Shreya Singhal v. Union of India held that “a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary.” Further, even in the Constituent Assembly the fears of wider interpretation of ‘reasonable’ restrictions were evident as one of the members Mr Sahaya said:

“In the larger interests of the country, and particularly at the formative stage of the country, to give such wide powers in the hands of the State and with regard to such Fundamental rights as, freedom of speech, freedom of assembly and freedom of movement would, I believe, be harmful and result in the creation of a suffocating and stuffy atmosphere as opposed to the free air of a truly free country.”

The right to assemble peacefully is a fundamental right and an enabling right which leads to opening up of spaces and opportunities for civil societies and citizens at large to engage effectively in decision-making processes. This right help to foster increased transparency and accountability and are basic prerequisites for the ultimate goal of securing substantive enjoyment of different human rights in a constitutional democracy. The right to assemble peacefully is a vehicle which enables other socio-political-economic rights. The state can restrict the said right only by a law in the “interests of the sovereignty and integrity of India or public order”. Fearing the so-called “reasonable restriction”, one of the members of the constituent assembly said (H.J. Khandekar):

“For instance, we are given to believe that we could carry on organised agitation for the welfare of Labour, that we can make, in an organised fashion, a demand for the grant of bonus, and if necessary can assemble in public meetings to back up this demand. The truth is that the law restricting the right of holding public meetings would be enforced. Consequently in view of such a law or laws of this kind to be passed in future it may not be possible to hold any public meeting. Thus it is clear that the Government would be in a position to prevent if it so desires, any agitation by Labour for demanding bonus, since all these restrictive laws would be applicable to the workers also. I, therefore, fail to see the significance of the right of forming associations when I find that its substance is taken away by clause (4).”

The Court by giving the state the wider power to designate the area of the protest and the number of people in the protest somehow validates the fears put forth by the Hon’ble member of the Assembly. The Court also says that the protestors, exercising their right to protest, infringes the right to commute of other citizens as protests lead to traffic jams etc. This requires balancing of rights, not just a blanket assumption. According to the Special Rapporteur on the rights to freedom of peaceful assembly and of association (20 March 2019, Geneva), it was recommended that, “The State’s obligation to facilitate includes the responsibility to provide basic services, including traffic management, medical assistance and clean-up services. Organizers should not be held responsible for the provision of such services, nor should they be required to contribute to the cost of their provision.” On the choice of place and time, which the Court declined to entertain, the Rapporteur recommends that,

“The choice of the venue or location of an assembly by the organizers is an integral part of the right to freedom of peaceful assembly…… Likewise, public areas around iconic buildings are a logical place for to convey a message with regard to institutions housed in these buildings.”

If the state is to ‘choose’ the place of protest, then it will infringe the right to protest as the protests are done to create an impact on the decision-making process and are for maximum participation by the citizens. It is done to make citizens aware of the actions and inactions of the state. If the state chooses the place of protest, then it might choose a place far from the central place of attraction where those sitting in the institutions can see. Like it happened in Jaipur where the place of protest chosen by the state government was 9 kilometres away from the earlier site chosen by the protestors. The free flow of traffic should not automatically take precedence over freedom of peaceful assembly. In this regard, the Inter-American Commission on Human Rights has indicated that “the competent institutions of the State have a duty to design operating plans and procedures that will facilitate the exercise of the right of assembly … [including] rerouting pedestrian and vehicular traffic in a certain area”. Furthermore, the Special Rapporteur points to a decision of the Spanish Constitutional Court which stated that “in a democratic society, the urban space is not only an area for circulation, but also for participation.”

A protest is done in the larger public interest, it is done to exercise dissent against various policies of the state (and sometimes against the judgments of the Court). Holding a protest outside the city, or where there is no attention will ‘extinct’ the genesis of the protest and will fetch no fruits. The Supreme Court held “it has to be borne in mind that total extinction is not balancing” (see Asha Ranjan v. the State of Bihar (2017) 4 SCC 397).

The difficulties caused to the citizens exercising their ‘right to free movement’ is due to the states’ failure to take adequate and sufficient steps. If the state will take necessary actions to “ensure that such dharnas and demonstrations are held within their bounds [and the traffic is diverted, instead of closing the roads], it would have balanced the rights of protestors as well as the residents.” (Mazdoor Kisan Shakti Sangathan v. Union of India, 2017)

Instead of being a mute spectator, the state and the police authorities should have arranged routes and spaces near Shaheen Bagh for the commuters to exercise their right to ‘free movement’ instead of blaming the protestors for their own insufficiency and inadequacy. The decision of the court to provide a blanket ban on the demonstrations lead to infringement of rights of the citizens and creates a chilling effect. It is the duty of the state to balance the rights of stakeholders and the Court must only adjudicate and protect the rights of every citizen. The purpose of holding protests is that they reach concerned persons for whom these are meant and to exercise the democratic right guaranteed by the Constitution. The decision of the Court is wrong as it will lead to fresh restrictions on the right. To conclude, in the words of TM Krishna, “Unless public spaces are freely available for demonstrations, we will remain a mute democracy.”