Propositions Like Holding Protests At 'Designated Places Alone' Shall Upset The Concept Of Dissent: Review Petition In Supreme Court Against Shaheen Bagh Judgement

In October 2020, a three Judge Bench of the Supreme Court led by Justice SK Kaul had held that the right to peaceful protest against a legislation exists, but the demonstrations expressing dissent have to be in designated places alone.

[Shaheen Bagh] Demonstrations Expressing Dissent Have To Be In Designated Places Alone: SC

The Bench had also reprimanded the authorities for hiding behind court orders and has stated that instead of seeking support from judicial institutions, the authorities should take suitable actions.

"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," the Top Court had held.

The Petitioner herein, Kaniz Fatima (a protestor) has contended that this finding is prima facie erroneous inasmuch as it gives an "unrestricted sanction" to the police to take action by misusing these observations.

It is submitted,

"propositions like holding protests at 'designated places alone' coming from judicial pronouncements shall upset the very concept of dissent and protest. In case of administrative action coming up with such propositions, the Citizens still may approach the courts of law. However, in the present situation, the citizens are vulnerable and helpless."

The Petitioner apprehends that the impugned provisions are all the more troublesome when Police, allegedly, in the recent past, arbitrarily exercised its discretion to attack any peaceful protester.

"The order under review holds that in the face of protests the administration can either engage in negotiations or take appropriate action. This would lead to a situation wherein the administration would never engage in dialogue with protesters, protesting against a Government policy or action, but would instead take action against them including their prosecution," the plea states.

It is contended that the impugned verdict takes away the Constitutional protection guaranteed to peaceful protesters under Article 19 of the Constitution, by holding that the administration ought to take action to keep the areas clear of encroachments or obstructions.

"It is pertinent to point out at this stage that the only way for citizens in a democracy, to show their dissent towards legislations, policies and other Governmental acts and omissions, is by way of peaceful protests. To put any kind of curb on this freedom to show dissent leaves the citizens with no resort whatsoever to voice their concerns," the plea states.

It is pointed out that the impugned order goes against the principle laid down by a five-Judge Bench in the case of Himat Lal, that streets and public parks exist primarily for other purposes and the social interest promoted by untrammelled exercise of freedom of utterance and assembly in public street must yield to social interest which prohibition and regulation of speech are designed to protect.

It is also argued that the impugned order was passed without giving an opportunity of hearing to the Petitioner, who was also the protesting against CAA-NRC.

"Except for the brief interaction with the Interlocutors appointed by this Hon'ble Court, neither the present Petitioner nor any of the protesters got the opportunity to make submissions in the proceedings," the plea submits.

The impugned order was passed on a petition filed by Advocate Amit Sahni seeking to remove the protests against CAA-NRC at Shaheen Bagh, alleging that the protests were blocking the roads, affecting the right of free movement of the public. Though the protesters vacated the site in March with the onset of COVID-19 pandemic, the court proceeded to hear the matter on the larger issue of balancing the right to protest with the right to free movement of people.

The petition is filed through Advocate Kabir Dixit. (Drafted by Advocate Rashmi Singh)