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The Indian Parliament passed the Citizenship (Amendment) Act, 2019 in December 2019 causing widespread protests in India. One such protest led to the closure of the district Shaheen Bagh in Delhi & on 14th January 2020, a writ petition was filed in the High Court of Delhi. The argument was that the public roads could not be permitted to be encroached upon in this manner. The High Court gave no specific order & suggested the respondent authorities take the necessary steps.  

Thereafter, advocate Amit Sahni (the appellant) filed the present appeal in Supreme Court, arguing for the removal of the protest site. Due to the spread of Coronavirus, the site was cleared but the Court still decided to go ahead with the appeal because of wider ramifications of the case. 

The applicants contended that under Article 19(1)(a) and 19(1)(b) of the Constitution of India they hold absolute right to protest both in respect of number and space. The main issue of determination for 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 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, 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.

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. To strike a balance between the two, the Court stressed that the demonstrations expressing dissent had to be organized in designated places. 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, a large model of India Gate, and a big metallic three-dimensional map of India on the other. 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 streets must yield to social the interest which prohibition and regulation of speech are designed to protect. But there is a constitutional difference between reasonable regulation and arbitrary exclusion.”

The Court also deliberated the paradoxical nature of technology and the internet which according to it, “both empowers digitally fuelled 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.” 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 a fair share of chinks and caused inconvenience to commuters.

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. 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 suitable action.


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