Freedom of Association and Assembly / Protests, Public Order, Political Expression
Şahin v. Turkey
Closed Contracts Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The Supreme Court of India held that public protests and demonstrations expressing dissent must only be organized in designated places. The Court allowed an appeal brought by advocate Amit Sahni for the removal of a protest organized at Shaheen Bagh, a Dehli neighborhood, against the Citizenship Amendment Act and the National Register of Citizens. The appellant argued that the protest blocked the public way and caused grave inconvenience to commuters. Accepting this contention, the Court ruled that despite the existence of the right to peaceful protest against a legislation, public ways and public spaces cannot be occupied indefinitely. It held that the rights to freedom of expression and protest under Article 19 of the Constitution are subject to reasonable restrictions pertaining to the sovereignty and integrity of India, public order and to the regulation by the concerned police authorities.
In December 2019, the Indian Parliament passed the Citizenship (Amendment) Act, 2019 which led to protests in different parts of the country. One such protest led to the closure of the district Shaheen Bagh in Delhi. On January 14, 2020, a writ petition was filed in the High Court of Delhi against the protest, contending that the public roads could not be permitted to be encroached upon in this manner. The High Court directed the respondent authorities to take the necessary steps but gave no specific order or direction and the situation remained the same.
Thereafter, advocate Amit Sahni (the appellant) filed the present appeal in Supreme Court against the order of the High Court, arguing for removal of the protest site. Meanwhile intervention applications were also filed by parties who sympathized with the protestors. The Supreme Court appointed two interlocutors to mediate the issue with the protestors but their efforts were unsuccessful, however with the spread of Coronavirus, the site was cleared. The Court nevertheless decided to go ahead with the appeal because of the case’s wider ramifications and for the sake of clarity.
The applicants contended that they had an absolute right to protest both in respect of number and space, under Article 19(1)(a) and 19(1)(b) of the Constitution of India. Article 19(1)(a) of the Constitution states that: “all citizens shall have the right to freedom of speech and expression and article 19(1)(b) states that: “all citizens shall have the right to assemble peaceably and without arms”.
Judge Sanjay Kishan Kaul of the Supreme Court of India authored the decision of the three judge bench in this case. The central issue for the determination of the Court was whether there is an absolute right of peaceful protest under article 19(1)(a) and 19(1)(b) of the Constitution of India.
The applicants contended that the right of peaceful protest was absolute “in respect of space and numbers”. [p. 13] However, the Court rejected the contention that “an indeterminable number of people can assemble whenever they choose to protest”. The Court observed that the public ways and public spaces cannot be occupied indefinitely [p. 17], the rationale being that although Article 19 enables every citizen to assemble peacefully and protest against the actions or inactions of the State, the right comes with certain obligations and duties. Furthermore, reiterating its position taken in the case of Mazdoor Kisan Shakti Sangathan v. Union of India [2 (2018) 17 SCC 324], the Justices ruled that “each fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right.” In this case, an attempt was made to reach a solution where the rights of protestors were to be balanced with that of commuters. [p.16]
The Justices were of the opinion that if democracy and dissent were to go hand in hand, the State had to respect and encourage the constitutional rights of the people. Similarly, the people had to oblige the reasonable restrictions placed on their rights by the State, pertaining to the sovereignty and integrity of India, and public order. [p. 16] To strike a balance between the two, the Court stressed that the demonstrations expressing dissent had to be organized in designated places. [p. 17] At this point, the Court noted that in the present case, the protest was not only held in an “undesignated area”, but there was an additional “blockage of a public way which caused grave inconvenience to commuters”. The Court observed that the disputed area was completely occupied by tents on one side and a makeshift library, large model of India Gate and a big metallic three-dimensional map of India on the other. [p. 10]
Here the Court referred to Himat Lal K. Shah v. Commissioner of Police [(1973) 1 SCC 227], where the Justices had observed that “Streets and public parks exist primarily for other purposes and the social interest promoted by [the] untrammeled exercise of freedom of utterance and assembly in public street[s] must yield to social interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion.” [p. 17]
The Court also deliberated the paradoxical nature of technology and the internet which according to it, “both empowers digitally fueled movements and at the same time, contributes to their apparent weaknesses.” It said that technology has enabled movements to scale up quickly and evade censorship but that social media channels are often fraught with danger and can lead to the creation of highly polarized environments, “which often see parallel conversations running with no constructive outcome evident.” [p. 18] The Court observed that both these scenarios were witnessed in Shaheen Bagh, which started out as a protest against the Citizenship Amendment Act, gained momentum across cities to become a movement of solidarity for the women and their cause, but came with its fair share of chinks and caused inconvenience to commuters. [p. 18]
Accordingly, the Court held that the complete blockade of public ways was not acceptable and the administration ought to take action to keep the areas clear of encroachments and obstructions. [p. 19] The Court noted that in the present case, despite a lapse of a considerable period of time, there was neither any negotiations nor any action by the administration. It said that the respondent authorities were responsible but had failed to take to take suitable action. [p. 20] The Court hoped that such a situation would not arise in the future and protests would be subject to the legal position as stated above, “with some sympathy and dialogue, but are not permitted to get out of hand”. [p. 21]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.