The right balance: On Shaheen Bagh and the right to protest

Long after Shaheen Bagh became a potent symbol of democratic resistance against a discriminatory law, the Supreme Court has ventured to hold that any such indefinite blockade of a public pathway is unacceptable. And that the administration ought to take action to remove “encroachments and obstructions” placed during such protests. The Court’s assertion was made even while “appreciating the existence of the right to peaceful protest against a legislation”. On the face of it, the Court’s view arises from a straightforward balancing of two contrasting rights — the right to protest and the right to free movement. However, a moot question is whether the manner and content of a protest should always conform to forms deemed acceptable by the law. Protests, by their very nature, are not always rooted in legality, but rather derive legitimacy from the rightness of the underlying cause and the extent of public support. In many cases, they are against laws and regulations perceived as unjust. A flash strike, a spontaneous road block, a call for a complete shutdown, or a campaign to fill up jails by defying prohibitory orders — each of these is not, in a strict sense, legal; but, at the same time, it is an inevitable part of the culture of protest in a democracy. In this case, the Court rightly notes that the administration neither negotiated with the protesters in Shaheen Bagh nor tried to clear the scene.

Any finding that a peaceful protest had continued too long, or in a place deemed inconvenient to others, should not encourage the administration to seek early curbs on the freedom of assembly. After the pandemic led to the end of the protests, there was little left for adjudication, and the Court’s remarks might come across as a gratuitous offering to administrators looking to de-legitimise protests. Following the earlier judgment that any ‘bandh’ is illegal, courts routinely stayed sector-wide strikes. Another aspect of the present ruling is the assertion that protests should be confined to “designated places”. Such judicial certitude may end up undermining the larger democratic need for public expression of dissent in a manner and place that would be most effective. While notified demonstrations are subject to regulations regarding time and space, it may not be possible to extend the same to spontaneous, organic and leaderless protests driven by a cause. The ruling should not form the basis for suppression of such protests by the force of the state. Both principles — the need for balance between the right to protest and the right to free movement, and the rule that protests should take place at designated spots — are salutary from an administrative point of view. But these cannot become unquestionable axioms to the point of rendering any and all protests that cause inconvenience to others the target of the strong arm of the state.

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Printable version | Dec 3, 2020 7:02:12 AM | https://www.thehindu.com/opinion/editorial/the-right-balance-the-hindu-editorial-on-shaheen-bagh-and-the-right-to-protest/article32816432.ece

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