Mobility v/s Protest: A Battle of Hierarchy for Fundamental Rights?

Written by Shama Mahajan

Fifth Year, BBA LLB. Symbiosis Law School, Pune

Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.

“I learned that patriotism includes protest, not just military service”

~John F. Kerry

The Hon’ble Supreme Court in its judgement authored by Justice S.K. Kaul on October 7, 2020, in Amit Sahni v. Commr. of Police & Ors.[1] has held that public places can’t be occupied indefinitely for protests.

Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.

The three-judges bench discussed the scope of the right to protest and the boundaries within which it should be exercised.

The judgement raises a number of questions as far as the right to conduct peaceful protests are concerned. Some of them are:

Does balancing of contradictory fundamental rights (right to mobility and right to protest in this case) permit for setting in stone a hierarchy for them or should balancing be governed on subjective considerations of each case?

Shouldn’t greater onus have been placed on State authorities to facilitate protests and accountability for their failure to manage the same rather than, an omnibus restriction on protestors themselves?

Does the judgement pave way for more litigation over issues like when does the occupation of a public place for protest be called indefinite i.e. after the lapse of how many days or what considerations will govern the State in designating places as places of protest?

Can all “public places” (consider Roads and parks/grounds) be evaluated on the same threshold as far as disruption of normal activities associated with such places is concerned?

The judgement acknowledges the role played by peaceful protests in the Indian history of independence. Peaceful protests are a means available to the society/public to express their dissent towards policy-makers, governments or any authority exercising a position enabling it to make decisions for them and on their behalf.

They also act as manifestations of outrage and dissatisfaction towards inaction, incapability and maladministration of the authorities.

The history stands witness to the power of protests and their ability and effectiveness to remedy defects in any political system.[2] The judgements that open with this underlying premise goes on to lay down two dictums: firstly, public places can’t be indefinitely occupied for protests and secondly, that protests can take place only in designated areas.

The Supreme Court of India in the past has had such an opportunity to decide the legality of perpetual protests and use of public places for protest on three major occasions and its decisions pronounced in those cases govern this field till date. These judgements are Himmat Lal Shah[3], In Re Ramlila Maidan Incident[4] and Mazdoor Kisan Shakti Sangathan.[5]

Some of the legal propositions that they have laid down are of utmost importance:

Our fundamental rights of free speech are modelled on the Bill of rights of the Constitution of USA[6] and the right to peaceable assembly included right to “use...the parks, streets and public places” for “purposes of assembly and discussing public questions” as “part of the privileges, immunities, rights, and liberties of the citizens” as held by SCOTUS in Hague v. CIO[7] which isn’t absolute but relative and hence may be regulated in the interest of all without being abridged or denied in the guise of regulation. In Himmat Lal Shah the court agreed that the same reasoning would also extend to India as far as the operation of peaceable assembly and protests was concerned. A system of licensing public meetings in terms of the time and manner of holding such meetings on public street isn’t regarded as an abridgement of fundamental rights. Similarly, the power of imposition of reasonable restriction to ensure the safety and convenience of people in use of public highways isn’t inconsistent with enjoyment of fundamental rights.

In the In re Ramlila Maidan Incident the Court has harped on the importance of dissent in a democracy and observed that to facilitate dissent is also the duty of the State. The Government must encourage such dissent and not throttle it under the garb of reasonable restrictions. Any preventive steps should be founded on actual and prominent threats endangering public order and tranquillity as it may disturb the social order. The ends of a constitutional right must be served and not subverted.

In Mazdoor Kisan Shakti Sangathan the Supreme Court, relying on Himmat Lal Shah observed that, though there exists a power to regulate public meetings and protests on streets or highways it “doesn’t mean that government can close all the streets and open areas for public meetings thus denying the fundamental right to protest which flows from Art. 19(1)(a) and (b) of the Constitution.” In other words, there can be no omnibus prohibition of assembly on every public street or public place.

It is also pertinent to highlight the factual circumstances involved in Mazdoor Kisan Shakti Sangathan. In this case, the area near Jantar Mantar was being occupied by the protestors for protests which weren’t temporary or transient. Protestors had put up tents and other arrangements, washed their clothes on the streets and unhygienic conditions were created due to which the NGT had intervened holding that this also had environmental repercussions. In the author’s opinion the SC in this case had the ripe opportunity of holding that public places cannot be occupied for protests indefinitely and that only designated areas be utilised. However, a detailed examination of the judgement, specifically of paragraph 62, would indicate that the SC had questioned the State for insufficient measures and considered it as their failure to regulate situations in a manner that rights of both i.e. of the protestors and of the residents living in the vicinity could have been peacefully exercised.

In the present case, it isn’t the intention of the author to argue that no inconvenience was being caused due to the occupation of Shaheen Bagh or any other area for that matter or that the right to protest be placed above those of the others, who reside in the vicinity or travel through that area. However, the intention is to argue that each protest and their nature is subjective and Shaheen Bagh protests specifically shouldn’t have been the threshold for deciding that protests can’t occupy public places indefinitely. This Court has denied such all-pervasive and general approach even in its previous instances where it was called upon to decide on such issues like in the Mazdoor Kisan Shakti Sangathan. In this case as well, the court had held that individuals can’t claim to hold protests only in a particular area as a matter of right. Interestingly enough, it hadn’t outrightly limited the right to only designated areas thereby, resulting in a denial of right to protest in non-designated public areas when it could have done so.

It isn’t beyond denial that situations do arise and have arisen in the past where there is a conflict of inter or intra fundamental rights of two individuals or even situations where two fundamental rights of one individual may clash with each other.

The fundamental rights of all co-exist and one can’t be placed above the other. In other words, the approach adopted isn’t primacy of rights per se but balancing of rights on the scales of larger public interest.

The distinction was very succinctly explained in the judgement of Mazdoor Kisan Shakti Sangathan the crux of which can be laid down as, approach of primacy of rights can result in extinguishing the rights of others entirely however, balancing of the rights provides for a co-existential space where all rights can function in a manner where paramount collective interest prevails. Primacy involves recognition of status of one right over the other creating a watertight hierarchy of rights. Balancing on the other hand, involves a subjective analysis of collective interest to allow rights enjoyed by all to function collectively. This is evident from the evolution of judicial approach towards Part III and Part IV of the Constitution of India where initially, Part III would get primacy over Part IV until Minerva Mills[8] where a balancing and complementary approach towards both was adopted and which governs this field till date.

“Going by the dicta in Asha Ranjan[9], principle of primacy can’t be given to one right whereby the right of the other gets totally extinguished. Total extinction is not balancing. Balancing would mean curtailing one right of one class to some extent so that the right of the other class is also protected.”

This judgement of the court in effect has placed the right to protest at a lower pedestal in comparison to all other rights with which it may conflict. It isn’t to say that in certain circumstances this might be the case however, to lay down in express terms such a dictum is to draw a line in stone while all these years it was being drawn in the sand. The dictum seems to proceed on the basis that no protests should be allowed to cause any inconvenience and hence they must only be held in designated areas. While restriction in terms of designated areas is permissible however, it undermines the possibility to hold protests in non-designated areas without causing inconvenience to the public at large. The UN Special Rapporteur on the rights to freedom of peaceful assembly and of association has observed that,

Assemblies are equally legitimate use of public space as any other commercial activity or pedestrian traffic.

Some amount of inconvenience, disruption caused by the assemblies has to be tolerated.

Blanket bans, including bans on the exercise of the right entirely or on any exercise of the right in specific places or at particular times, are intrinsically disproportionate, because they preclude consideration of the specific circumstances of each proposed assembly.[10]

Thus, to hold all public places as one homogenous unit without taking into consideration their role, use, location etc. and to hold that no public places can be indefinitely occupied and protests can only be held in designated areas alone becomes too restrictive. At this juncture, the US approach adopted in this regard may be of some relevance.

The brief of the First Amendment Scholars as Amici Curiae in DeRay McKesson v. John Doe, an appeal pending before the SCOTUS from Fifth Circuit, highlights some of the following jurisprudential aspects of right to protest in US:

Right to peaceable assembly included right to “use...the parks, streets and public places” for “purposes of assembly and discussing public questions” as “part of the privileges, immunities, rights, and liberties of the citizens” as held in Hague v. CIO[11] subject to reasonable restrictions.

“Peaceable” wasn’t to be interpreted as “permissible” but as dehors of any violence/violent acts that render it beyond the scope of First Amendment protection.

Requirement of permits for street processions or meetings was introduced much later (for example in New York city in 1914) as a pre-condition and its legislative inclusion was initially met with judicial scepticism.[12]

Presently in US, there is no unfettering right to protest on government/public property for, the government’s ownership of property doesn’t automatically open that property to the public as held in US v. Kokinda[13] and prior permissions are required in certain cases specially where the use of loudspeakers or diversion of traffic etc. is involved.

No permits for protest on sidewalks or streets are needed if no interruption to pedestrians or traffic will be caused. The US has adopted the doctrine of “Public Forum” whereby only those government properties which qualify as public forums are open for holding peaceful protests and assemblies. This is determined on the basis of location and purpose of the government property in question and ensuring non-interference with discharge of government duties/functions.

It may now be pointed out that reasonable restrictions under Article 19(3) of the Constitution of India applicable to peaceful protests include sovereignty and integrity of India and public order. Every inconvenience caused by protest doesn’t disrupt public order and to hold so would essentially be an extinction of the right to protest. Furthermore, SC through its judgements[14] under Art. 19(1)(a) has placed on the State a very high threshold for justification of their acts as “maintenance of public order” while restricting freedom of speech under Art. 19(2). The underlying premise being maintenance of public order is the responsibility of the State (through the Police) but it's abdication can’t be allowed to act as a fetter to the rights of the citizens. Extending the same or a lesser threshold to Art. 19(3) would still require disturbance of public order to be more than slight inconvenience and a detour. This judgement of the SC however, has shifted the onus of maintaining public order from the State on to the Protestors. It may be said that role of the State has now been transformed from being the “Facilitator for exercising of right by the people” to “Provider of space for exercising the right by the people”. Again, the inconvenience or the likely disturbance of normal public activities isn’t denied however, one can’t ignore that the factum of magnitude of inconvenience is dependent on nature of public place. Disturbance of public order caused by protest in a park, village road, highway, road to hospital and a sole bridge connecting 2 cities will all vary and require to be subjectively analysed.

The SC in Mazdoor Kisan Shakti Sangathan had acknowledged that the designated area at Ramlila Maidan wasn’t sufficient to cater to the requirement and hence some other area was also required. The court hadn’t completely banned protest in Jantar Mantar area but had restricted the area that can be occupied and also directed for making provision in other areas. The test to be adopted for deciding whether protest/dharna are to be allowed was “apprehension of breach of peace” not merely an inconvenience.

Prior permission for protest is required in India and the same falls within reasonable restriction however, this judgement in Amit Sahni raises a question of whether permission for protest in any area other than designated area can ever be obtained? If not does this amount to balancing of rights or primacy of right? Would an indefinite sit-in at a non-designated foot-path be considered valid? If not, is it merely owing to its very nature of being indefinite protest at a public place or the actual breach of public order?

The “designated area alone” rule propagated in Amit Sahni isn’t parallel to “free-speech zones” in the US for, any protest beyond free speech zones isn’t absolutely prohibited in the US unless such areas are no public forums.

For instance, the public side-walks near Supreme Court were considered a public forum[15] but postal side-walks weren’t.[16]

The discussion in Himmat Lal Shah was also centred around public streets/highways which are a part of what can be called public places. The part of this judgement relied upon by the SC in Amit Sahni is where Jus. K.K. Mathew has spoken of yielding of one right i.e. freedom of speech and assembly in public street, towards social interest sought to be attained by regulation and prohibition of such speech. However, to read into “yielding” a rule of primacy in my opinion is erroneous as this has an effect of total exclusion which even Jus. Mathew cautions against.

Hon’ble SC in this judgement of Amit Sahni has departed from its previous precedents through its omnibus dictum which fails to consider the subjective and social elements of a protest whether indefinite sit-ins or marches/hartals etc. In the past the court had sailed these waters carefully by balancing the larger public interest with the right to dissent through protests. Prohibition as means of reasonable regulation isn’t unacceptable but when it becomes an instrument of blanket exclusion, it is bound to raise questions. What is now awaited is how the State authorities will rely on this dictum. The question remains whether to regulate, prohibit or exclude areas for protests. Only time will tell!

[1] Amit Sahni v. Commr. of Police & Ors., Civil Appeal No. 3282 of 2020. [2] Harrop A. Freeman, The Right of Protest and Civil Disobedience, 41 ILJ, 228. [3] Himmat Lal Shah v. Commr. of Police, A.I.R. 1973 S.C. 87. [4] In Re Ramlila Maidan Incident v. Home Secretary & Ors., (2012) 5 S.C.C. 1. [5] Mazdoor Kisan Shakti Sangathan v. U.O.I., (2018) 17 S.C.C. 324. [6] Express Newspapers (Private) Ltd. and Another v. UOI & Ors. (1959) S.C.R 12, 121. [7] Hague v. CIO, 307 U.S. 496, 515–16 (1939). [8] Minerva Mills Ltd. v. U.O.I., A.I.R. 1980 S.C. 1789. [9] Asha Ranjan v. State of Bihar & Ors., (2017) 4 S.C.C. 397. [10] UN Human Rights Council, Joint Report of the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association and the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions on the Proper Management of Assemblies, A/HRC/31/66, Refworld (4 February 2016), Last accessed on October 20, 2020. [11] Hague v. CIO, 307 U.S. 496, 515–16 (1939). [12] Anderson v. City of Wellington, 19 P. 719 (Kan. 1888). [13] US v. Kokinda, 497 U.S. 720 (1990). [14] S. Rangarajan v. P. Jagjivan Ram, 1989 S.C.C. (2) 574; Arup Bhuyan v. State of Assam, (2011) 3 S.C.C. 377. [15] US v. Grace, 61 U. S. 171, 177, 103 S. Ct. 1702, 75 L. Ed. 2d 736. [16] US v. Kokinda, 497 U.S. 720 (1990).