Amit Sahni vs Commissioner of police and Ors

DATE OF THE CASE: 7 October, 2020

APPELLANT : Amit Sahni

RESPONDENTS: Commissioner of police and Ors

BENCH/JUDGES : Honorable Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari

LEGAL PROVISIONS : Constitution of India, 1949, Citizenship Amendment act, 2019

CIVIL APPEAL NO: 3282 OF 2020

FACTS

  • The Citizenship Amendment act was passed by the Parliament in December 2019 and it was opposed by people in several parts all over the Country.
  • A writ petition was filed before the High Court of Delhi by lawyer-activist Amit Sahni, against the protest saying that the public roads are obstructed by crowd protesting in the Shaheen Bagh locality causing grave inconvenience to the commuters.
  • In response to the petitioner’s concerns, the court ordered the appropriate authorities to take the necessary steps in accordance with the applicable policies and further added that their decisions should not compromise law and order and should be in the public interest
  • As the situation remained unchanged, the petitioner appealed to the Supreme Court on January 20th 2020.
  • Two interlocutors were appointed by the Supreme Court to mediate the issue but their efforts were not successful.
  • Meanwhile, intervention applications were also filed by people who supported the protestors stating that they have the Right to freedom of speech and expression and the Right to assemble as given under Article 19(1)(a) and 19(1)(b) of the Indian Constitution.

ISSUES RAISED

  1. Whether the Right to freedom of speech and expression and the Right to assemble is absolute?
  2. Whether the protestors can occupy public places indefinitely?

CONTENTION ON BEHALF OF THE PETITIONERS

  1. According to the petitioner, protesting  is not an absolute right according to the Constitution and it should be subjected to some reasonable restrictions.
  2. The petitioner also stated that, a large replica of the India gate and the Map of India was  accompanied by the protestors during the Shaheen Bagh protest, which obstructed public roadways denying the right to mobility for commuters.
  3. The petitioner also put forth that, there was a blockage of the main roads that not only caused inconvenience to commuters, but also obstructed the traffic flow.
  4. Public order and unhindered traffic flow were argued to be essential to a functioning society by the petitioner’s counsel, and a request was put forth to relocate the protests to a location where they could continue expressing their objections without disrupting the normal lives of residents.
  5. After filing an appeal with the Delhi High Court, the Delhi Court directed appropriate officials to take the necessary actions. However, the situation remained unchanged and no action was taken by the authorities. Hence, the petitioner had to approach the Honorable Supreme Court.

CONTENTION ON BEHALF OF THE RESPONDENTS

  1. According to the respondent, all citizens are guaranteed the right to freedom of speech and expression as well as the right to assemble peacefully and without arms, and to form associations and unions under Articles 19(1)(a), 19(1)(b), and 19(1)(c) of the Indian Constitution, and therefore, it would be inappropriate to remove the protestors.
  2. Moreover, the authorities affirmed that the High Court ordered them to act in accordance with large public interests and not against the law and order.
  3. Furthermore, they stated that they had the power to vacate the site if the situation changed every ten minutes, but there were no agitations or violence in the Shaheen Bagh protest.

RATIONALE

Despite Article 19 guaranteeing the right to assemble peacefully and protest against government policies, the Apex Court bench consisting of Honorable Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari held that public places and public spaces cannot be occupied for an indefinite period of time.

The apex court cited the case Mazdoor Kisan Shakti Sangathan v. Union of India, in which the honorable court stated “each fundamental right, whether it is a right of an individual or class, cannot exist in isolation and must be balanced with every other right contrasting it.” It was an attempt to reach a solution in which protestors’ rights would be balanced with commuters’ rights in the case.

The honorable bench also quoted yet another case of Himat Lal K. Shah v. Commissioner of Police and noted that “There is, however, a constitutional difference between reasonable regulation and arbitrary exclusion.”

Technology and the internet were also pointed out in the Court as having advantages and disadvantages. It not only accelerates  technologically fueled movements, but also spread rumors about the same as well, turning peaceful protests into a nationwide conflict affecting the unity and integrity of the nation. Both of these scenarios were observed in Shaheen Bagh, which began as a protest against the Citizenship Amendment Act and gained momentum across cities to become a movement of solidarity for women and their cause, but also had its share of chinks and inconveniences.

Even though the Court recognized the right to peaceful protest, it clearly pointed out that public ways and public spaces cannot be occupied for an infinite time period. It also stated that, dissent and democracy go hand in hand, but demonstrations expressing dissent must occur in designated areas.

In its ruling, the Supreme Court bench unanimously held that, occupation of public ways for the sake of protests, no matter where the site is located, cannot be tolerated, and that the administration has a duty to maintain the areas free of encroachment and obstruction.

In addition, it stated that, without a doubt, it is the respondent authorities’ responsibility to take appropriate action, but this action must produce results. Whether the administration should act in a particular manner is their responsibility, and they should not hide behind court orders or seek support from them for carrying out their duties. Rather than giving the administration a shoulder to fire from, the courts adjudicate the legality of the actions. Even after a considerable period of time, neither negotiations nor action by the administration occurred, thus warranting our intervention in this case.

The Supreme Court arrived at its decision based on the notion that the rights of one person should not limit the rights of another.

DEFECTS OF LAW

It is the State’s positive duty to facilitate the exercise of the right to peaceful protest, as specified in Article 19(1)(a) and (b). According to the Court, the question was “where and how the protest could be conducted without harming public ways”. Using this classification implies that protests cannot take place in public spaces or affect public property, which is problematic.

There have been several international court rulings and documents recognizing assemblies as legitimate uses of public spaces. It is not reasonable to restrict peaceful assemblies just because they interfere with day-to-day activities. It is only in exceptional cases where traffic disruptions are “serious and sustained” that an assembly can be restricted.

As stated by the former Chief Information Commissioner Wajahat Habibullah, in this case, there was a greater disruption to traffic because of police actions rather than from peaceful protesters. This material fact was not taken into account by the Court. While the State should have minimized disruptions caused by peaceful protests, it instead blocked roads unrelated to Shaheen Bagh, thereby causing more traffic disruptions.

International law recognizes that the right to freedom of assembly rests on the right to choose when, where, and how to conduct itself. In order to effectively realize this right, it is crucial to choose a location within sight and sound of their target audience. In its judgment, the SC fails to acknowledge this principle when it states that protests should only take place at designated sites. Two reasons make this concerning in the context of the Shaheen Bagh protests.

Due to the implementation of the CAA, several Indian Muslims could effectively become stateless. As an area in which more Muslim people live, Shaheen Bagh without a doubt is a crucial location for expressing dissent on this issue that affected millions of Muslims. Additionally, Jamia is in close proximity to Shaheen Bagh, so the peaceful sit-ins in Shaheen Bagh after Jamia’s violence were symbolic.

By restricting protests to designated sites, commuters can be hindered by the remote locations of the protest sites. Considering that the anti-CAA protests happened across the country, restricting protests to designated sites alone denies protestors the freedom to choose their target audience.

INFERENCE

According to the Court’s judgment, peaceful protests play an important role in a democracy, while the right to freedom of expression and peaceful assembly are fundamental rights protected by the Constitution.

Although the Court recognized the State’s duty to maintain law and order, it stressed that any restriction on these rights should be based on clear and cogent evidence of potential harm, and the denial of permission should only be a last resort after exploring less restrictive alternatives.

In addition, the Supreme Court held that it is the responsibility of the respondent authorities to take appropriate action, but that appropriate action must be followed by results. It is up to the administration to determine how they should act.

Amit Sahni vs. Commissioner of Police and Others reaffirmed the importance of safeguarding fundamental rights in democratic societies and highlighted the need to balance public order with the right to dissent through peaceful demonstrations.

Citations Mazdoor Kisan Shakti Sangathan v. Union of India : WRIT PETITION (CIVIL) NO. 1153 OF 2017Himat Lal K. Shah v. Commissioner of Police : 1973 AIR 87, 1973 SCR (2) 266

                        By

V.Angelin Subiksha

Tamilnadu Dr.Ambedkar Law University, Chennai

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