While there will be many, especially commuters between Delhi and Noida who were inconvenienced by the blockade that formed part of the Shaheen Bagh protests early this year, who will welcome the manner in which the Supreme Court has sought to circumscribe street protest within the bounds of civic duty, there are aspects of the judgment that merit serious consideration.
While the court is quite right to assert that the right to dissent ~ and to protest ~ is part of the Constitutional scheme, its effort to use the doctrine of reasonable restraint to delineate the form this dissent may take raises eyebrows.
On the face of it, the Court’s observation that the method of protesting against colonial rule cannot be equated with dissent in a self-ruled democracy may seem unexceptionable. However, in making this observation, their Lordships appear to have overlooked an important point ~ the laws used to regulate protest belong to colonial times; they are therefore loaded in favour of the state, and against the conscientious objector.
For instance, Section 144 of the Criminal Procedure Code that proscribes unlawful assembly is over a century and a half old and was brought on the statute book to quell dissent. When juxtaposed with the Court’s observation that protest should be carried out only in designated spots, it boils down to circumscribing dissent to those spots where the administration chooses not to enforce Section 144, and only when it chooses not to do so.
A prime example of this is New Delhi’s Boat Club, which was the capital’s pre-eminent protest site for the first few decades of the republic until the government of P V Narasimha Rao decided the Central Vista lawns were too sensitive to be used for this purpose. When the Supreme Court disagreed some years ago, the government promptly clamped Section 144 in the area, as it did in the area around India Gate.
While central squares of every major city in the world, including some that are not even true democracies, are protest sites, New Delhi’s protesters have been elbowed aside to a cul-de-sac behind Jantar Mantar, with alternate sites offered at Ramlila Grounds and at Burari on the city’s outskirts. The rules governing use of these sites are amorphous enough to be tweaked by administrations to discomfit protestors, with the ultimate weapon in the form of Section 144 always being available to stop them.
It is these facts the apex Court appeared to have overlooked when in upholding the right to protest, it sought to shrink the space available for it to “designated spots”. The other, more worrisome, feature of the Court’s ruling is that it appears to suggest a shift from a centrist-liberal approach in judicial thinking on the right to dissent to a conservative-rightist one.
In considering the weight they gave to restraint vis-à-vis a Constitutional right, their Lordships would have done well to recall the words of a great jurist, Oliver Wendell Holmes, who famously said: “It there is any principle…that more imperatively calls for attachment than any other it is the principle of free thought ~ not free thought for those who agree with us but freedom for the thought we hate.”