RECENT events in India have brought to the fore the dimensions of the right to protest, which is itself absolute except in cases of extreme necessity. The problem arises, as it does in all cases of human rights, where the fundamental rights of other citizens and also the legitimate, recognised rights and duties of the state are involved. Protest can be expressed through the media, public meetings, or processions marching through public streets. Mammoth processions and sit-ins pose the greatest challenge.
One was the famous Shaheen Bagh meeting comprising mostly women, Muslim women at that. It predictably polarised society, with the BJP pouring scorn on the protestors. The law and administrative measures Modi’s extremist government proposed affected mostly, if not only, Muslims. The sit-in was spontaneous and efficient. They prayed and protested, and aroused international admiration.
A petition was filed in the supreme court challenging their right to do a ‘sit-in’ similar to those of the 1960s US civil rights movement. The court delivered a brief judgment, noting that “the grievance… was that the persons opposing the Citizenship Amendment Act and the National Register of Citizens had adopted a method of protest which resulted in the closure of the Kalindi Kunj — Shaheen Bagh stretch, including the Okhla underpass. It was submitted that the public roads could not be permitted to be encroached upon in this manner… .”
The Shaheen Bagh sit-in aroused international admiration.
In their pursuit of an out-of-the-box solution, the court considered it appropriate to appoint two interlocutors to meet the protesters and submit a report. The court noted, “In what manner the administration should act is their responsibility and they should not hide behind the court orders or seek support therefrom for carrying out their administrative functions. The courts adjudicate the legality of the actions and are not meant to give shoulder to the administration to fire their guns from. Unfortunately, despite a lapse of a considerable period of time, there was neither any negotiations nor any action by the administration, thus warranting our intervention.”
That is a tall order to the police; for involved are complex issues of law that troubled in Indian, British and US courts in the past. India’s apex court tried to come to grips with them years ago. A century ago, Justice Benson of the Madras High Court said, “No doubt a highway is primarily intended for the use of individuals passing and re-passing along it in pursuit of their ordinary avocations, but in every country, and especially in India, highways have, from time immemorial, been used for the passing and re-passing of processions as well as of individuals and there is nothing illegal in a procession or assembly engaging in worship while passing along a highway, any more than in an individual doing so.”
He added, “The practice of using the public highways for religious processions has existed in India for thousands of years. … That alone is sufficient to raise a presumption that it is lawful and to throw on those who allege it to be unlawful the onus of showing that it is forbidden by law, but this it admittedly is not. The law recognises the use of the highway by processions as lawful, and gives the magistrate and superior officers of police powers to direct the conduct of assemblies and processions through the public streets and to regulate the use of music in connection with them.”
In 1973, the apex court ruled that processions may be regulated to a reasonable degree but that conferment of absolute discretion in the police was violative of the fundamental right to assemble peaceably without arms.
The best statement of law was made by Justice K.K. Mathew: “Public meeting in open spaces and public streets forms part of the tradition of our national life. … [T]he people have come to regard it as a part of their privileges and immunities. The state and local authority have a virtual monopoly of every open space… . [If] the state or municipality can constitutionally close both its streets and its parks… the practical result would be that it would be impossible to hold any open-air meetings in any large city. The real problem is that of reconciling the city’s function of providing for the exigencies of traffic [and] recreation… with its other obligations, of providing adequate places for public discussion in order to safeguard the guaranteed right of public assembly.”
Politics has marched ahead of the law. Unresponsive regimes create public dissatisfaction. The supreme court appointed ‘interlocutors’ in the Shaheen Bagh case. For over a month, Punjab’s farmers have assembled in huge numbers on the borders of Delhi. Their organisation inspires respect. Old and young women and the youth set up a virtual city, sleeping in the bitter cold. Try and teach the law to them. It is sincere conciliation that is called for. This concept is alien to Narendra Modi.
The writer is an author and lawyer based in Mumbai.
Published in Dawn, January 9th, 2021