The year 2020 has been called the year of the resurrection of dissent in India by some commentators. The year began with the continuation of protests against the Citizenship Amendment Act and is ending with farmer groups sitting in protest on some roads that serve as entry points of the national capital.
But a curious problem has cropped up that questions how protests ought to take place and in doing so may threaten the very act of protest itself, said some legal experts.
Two petitioners, a law student and a Delhi resident, have challenged the farmers’ protests on grounds of public inconvenience. One of them has Senior Advocate Harish Salve leading the charge in the Supreme Court. “The fundamental right to protest cannot extend to holding a city to ransom,” Salve argued at the hearing on Dec. 17, urging the Supreme Court to lay down the contours of the right to protest, according to a report by Live Law.
“There can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens and is in accordance with the law,” said the court order published that evening.
That may put the matter to rest for a few days, till the court reconvenes after its winter break. But, the effort to thus curtail the right to protest in a democracy has raised concern and prompted a legal debate.
Who Forced The Protest Spot? Farmers Or Police Blockade
The petitioners against the farmers’ protest argued mainly that the protest taking place on highways accessing the city is impacting the movement of vehicles into Delhi. Any obstruction in transport services would lead to a price rise, they said in their petitions, and inconvenience for the citizens of Delhi.
Senior Advocate Harish Salve argued that while they recognise the fundamental right to protest against a law but such a right has to be balanced against the fundamental rights of others. The farmers’ fundamental right to protest cannot extend to holding a city to ransom, he said in court.
Except, it was not the farmers but the state police that blocked the highways, countered P Chidambaram, senior advocate appearing on behalf of the state of Punjab whose government has supported the farmer agitation against three recently passed central laws on agriculture.
The Right To Protest Vs Public Inconvenience
Senior Advocate Gopal Sankaranarayanan said the issues being discussed in this case are not new and have up come up earlier as well.
I think if it can be demonstrated if the roads are being blocked, if at all they are, then the court has to step in because the state authorities have failed in handling the problem. In my view, you cannot make different decisions based on numbers or the issue for which the protest is taking place. The minute you start doing it becomes arbitrary.Gopal Sankaranaryanan, Senior Advocate
According to Senior Advocate Sanjay Hegde, these are administrative decisions and that the courts have only a limited role to play in such situations. Hegde was appointed as one of the interlocutors in the Shaheen Bagh case by the Supreme Court, during which a similar debate had broken out. He said local authorities are responsible to resolve such conflicts, while clarifying that his comments are not specific to the Shaheen Bagh case.
It is correct to say people cannot prevent the usage of a public road by the public. Governments do not require the court’s permission in advance in handling law and order. While courts can offer their good offices to help resolve issues, they are certainly not in the business of regulating traffic.Sanjay Hegde, Senior Advocate
Even the Chief Justice of India recognised the farmers right to protest, pointed out Indira Jaising, senior advocate, while adding that no one should disrupt public order including the police.
This protest is a decisive rejection of the three laws in question. We cannot forget that the farmers have been prevented from entering Delhi and hence they cannot be held responsible for disruption of traffic. This would not have happened if they were allowed to enter Delhi as they had a right to doSenior Advocate Indira Jaising
When it comes to the issue of the right to protest versus public inconvenience one cannot pigeonhole the two and there always will be a need to balance the competing fundamental rights and the courts have done that in the past, Senior Advocate Neeraj Kishan Kaul told BloombergQuint.
Gopal Sankaranarayanan suggested that in this case the court should have ensured that protests by the farmers take place at designated spots.
However, in this case, Hegde pointed out that the farmers had sought the Ramlila Maidan for protests but the government offered them a another location — Burari, which the farmers called a jail.
Spots designated by the administration are often according to the convenience of the administration and not the protesters. There must be a genuinely accessible spot that can be a designated protest spot. In the old days, protests would culminate at the Boat Club and then it was Ramlila Maidan and now the designated spots are further and further from public view. That will not be exactly ensuring the right to protest. A protest must have visibility without which it is an exercise in futility.Sanjay Hegde, Senior Advocate
Kaul said the concerns around designated spots being chosen in some cases in a manner to dilute the protests is understandable.
There is merit in saying that if the designated spot is in obscurity or miles away it loses its impact. But then historically there have been places in Delhi where protests have been allowed to hold which were reasonably prominent places. I think those places should be allowed as long as the people protesting must also have the responsibility to ensure that the law and order is not taken into their handsNK Kaul, Senior Advocate
Supreme Court’s View
Last week, the Chief Justice of India-led bench said that the court is of the view that at this stage the farmers’ protest must be allowed to continue without any impediment and without any breach of peace by the farmers or the police.
‘’There can certainly be no impediment in the exercise of such rights as long as it is non-violent and does not result in damage to the life and properties of other citizens and is in accordance with law,’’ said the top court order.
Since the hearings in the case began the bench has recommended facilitating dialogue between the two sides to break the impasse. It also queried, whether the contentious laws could be put in abeyance while a solution was found.
The top court has also proposed setting up an independent and impartial committee that will include experts in the field of agriculture that can facilitate a dialogue between the central government and the protesting farmers.
Further decision will be taken when the court reconvenes after its winter holiday.
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