IN the past year or so, questions relating to dissent and disorder have repeatedly come up before courts in India. Are protests negligent acts with a propensity towards violence? Do protests disrupt lives and thus invite violence? Are leaders of protests liable for unlawful acts by participants? SHAHRUKH ALAM explores these questions through the lens of a recent case in the United States that examine whether a misdemeanor violation strips a constitutionally-protected protest of legal status.
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FIR 59/2020 records that 'conspirators' associated with the anti-CAA protests had sought to embarrass the Indian government by organizing massive street protests during President Trump's visit. One would imagine that that particular concern about self-imagery and President Trump would have resolved itself by now, but similar FIRs pertaining to the 'farmers' protest' and 'tarnishing of image' have also surfaced. FIR 59/2020 additionally implicates protestors for having caused such stress to the social fabric through acts of public demonstrations that it resulted in retaliatory violence.
The framing of any act of protest as being intrinsically disruptive of social order and thus a deliberate and criminal attempt to cause disaffection or hatred between communities, or provocation with intent to cause a riot, does not leave much space for 'unsupervised protest'. Increasingly, therefore, there are calls for 'guidelines for protest actions', and also for punitive action against critics (and comics) who have provoked violent action upon themselves through their acts, and thus disrupted public order.
In the past year questions relating to dissent and disorder have repeatedly come up for consideration before the Constitutional Courts in India. Can a misdemeanor violation sufficiently strip a constitutional act of its protected status? Are protests in themselves 'negligent acts' and do they have a propensity towards violence? Do protests disrupt lives in a way that they encourage retaliatory violence? Can leaders of protests be made directly liable for unlawful acts by participants?
For some of the cases, which raised these questions of law we even have the benefit of judgments, whereas for most others there is rich court ethnography to rely on.
On December 17, 2019, a group of people moved the Supreme Court of India on behalf of students of Jamia Millia Islamia, who had been assaulted by police during street protests against the Citizenship Amendment Act. The petitioners claimed that the assault was malevolent and exercised disproportionate force on protesting students. The Court remarked that it would hear the students only once they ' stopped pelting stones and got off the streets'. Although this remark does not find a place in the official Court Order, the fact that it was uttered in Court still had the effect of creating a notion that all student protestors had been violent, and that they deserved to be stripped of constitutional protections till that time that they ceased to protest. In the months to come, this casual remark moulded popular common sense about dissent being violent.
A recent case from the US Courts also engages similar questions, although their conclusions about the constitutional sanctity of disruptive demonstrations are quite in contrast to the chance remark of the Indian Supreme Court.
“It is an innate idea: that protests are not removed from society, and that they are not a disruption of others' lives, so much as a general invitation to engage with structural issues. Therefore, a protest that vociferously challenges state policies may not be seen as confrontationist….
DeRay McKesson is a Black Lives Matter activist who had organized in 2016 a protest demonstration against the shooting of a black man by a police officer in Baton Rouge, Louisiana. He called for the occupation of a highway in front of the police headquarters. The police retaliated in a bid to clear the highway and also sought to arrest some leaders of the protest. It was then that an unknown individual pelted a stone at 'Officer Doe' who lost his teeth and also suffered serious injuries to his face.
Inexplicably, the authorities did not book McKesson under domestic terrorism laws, nor did they bring criminal charges against him. Officer Doe, however, sought to recover damages from McKesson on grounds that his 'negligent protest' led to conditions that instigated the attack. He claimed that the organizer of an illegal protest was strictly liable for any violent action by any member of the protesting assembly; and additionally that he was also personally liable in having organized a 'negligent protest', where violence was not entirely unexpected.
The District Court of Louisiana rejected Doe's claims. It relied on NAACP v. Claiborne Hardware Company, (1982), which expressly prohibits holding a protest leader liable for "the unlawful conduct of others" during a peaceful, protected activity. Claiborne has also held that even where a protest is illegal in that it blocks highways without proper permissions, it is still only a misdemeanor. A charge of misdemeanor cannot strip protest leaders of their constitutional right to peacefully dissent, nor make them strictly liable for any other unlawful conduct at the protest site. The Court noted that there were no allegations that McKesson had either directed or encouraged any violence during the protest.
Officer Doe appealed the decision before the Fifth Circuit Court of Appeal, wherein he was first instructed to not approach the Court 'pseudonymously', but rather disclose his actual name. The Fifth Circuit Court partially upheld the reasoning of the Trial Court (there is no strict liability for the unlawful conduct of others), and partially set it aside. The Fifth Circuit Court held that McKesson's occupation of the police headquarters was 'negligent protest', since Louisiana state law treated such blockades as traffic misdemeanors and therefore "McKesson should have known that leading protestors into a highway blockade was 'likely to provoke confrontation between police and the demonstrators', since the misdemeanor violation made it 'patently foreseeable that police would respond by clearing the highway and making necessary arrests'".
Willet J. wrote a stinging dissent to the judgment of the Fifth Circuit Court, where he cited Martin Luther King's Montgomery march, which 'occupied public roadways, including the full width of the bloodied Edmund Pettus Bridge.'
This dissenting view where it appeals to the nation's history and states that measured against that history [of protest], it was remarkable that a court of appeal should find the act of blocking a highway sufficient to remove demonstrations from the protection of the First Amendment, could equally be applicable to our own nation's history of struggles.
Willet, J. in his minority judgment held that allegations of misdemeanor couldn't suppress activity protected by the First Amendment. However, the majority view of the Fifth Circuit Court found otherwise.
Black Lives Matter and McKesson petitioned the Supreme Court of the United States for a writ of certiorari to the Fifth Circuit Court. They argued that 'even granting the premise that a peaceful demonstration conducted in technical violation of a local ordinance has diminished protection, the Fifth Circuit's rule will chill far more speech' than that.
“In effect, it seeks to normalize protest actions and stresses that in a vibrant, democratic society, it should not be treated as malevolent disorder that deserves retaliatory violence. Rather, it should be taken at face value, as an intellectual disagreement with the politics of the time.
The Petitioners relied on Claiborne to argue that the presence of activity protected by the first amendment mandates 'precision of regulation' with respect to grounds that may give rise to damages liability, as well as to persons who may be held accountable for those damages. Indeed, under Claiborne, damages liability in the context of speech must be 'restricted to those directly and proximately caused by wrongful conduct chargeable to the defendant' and cannot be used to 'compensate for anything more than the direct consequences of the defendant's actions'. Somewhat relevant to our own context, the petitioners also argued that the Court of appeal's 'evasion of Claiborne' rested on the premise that one should 'assume violence whenever protesters are confronted by police'. This was an idea 'offensive to First Amendment values'.
Claiborne resonates with the law laid down by the Indian Supreme Court in Rangarajan (1989) and Shreya Singhal (2015), where only those speech acts that directly incite violence, or are akin to a 'spark in a powder keg', can be made liable. McKesson's case seeks to push further the idea of the 'powder keg' itself, and to argue that a protest action, even when it involves an encounter with law enforcement officers, need not carry the presumption of being 'charged' and 'tense'. It redistributes the responsibility for staging peacefully disruptive protests from the protestors to the state.
It is an innate idea: that protests are not removed from society, and that they are not a disruption of others' lives, so much as a general invitation to engage with structural issues. Therefore, a protest that vociferously challenges state policies may not be seen as confrontationist, much in the same way that state policies, even when hugely disruptive of lives are not seen as necessarily confrontationist.
In effect, it seeks to normalize protest actions and stresses that in a vibrant, democratic society, it should not be treated as malevolent disorder that deserves retaliatory violence. Rather, it should be taken at face value, as an intellectual disagreement with the politics of the time.
In Shaheen Bagh (Civil Appeal 3282/2020), on the other hand, the Indian Supreme Court found the rather low threshold of "inconvenience to commuters" a sufficient ground to rule that protests that occupy public freeways are illegal and liable to police action. It states that the right to freedom of speech and to assemble peaceably is subject to reasonable restrictions, which pertain to the 'integrity and sovereignty of India and to public order'. Oddly, however, it introduces a further restriction of 'commuters' convenience' in ruling that the fundamental right to protest must be balanced with the right of commuters. It is not made explicit but there is a presumption that prolonged occupation of public space by dissenters will invite retaliatory disorder.
“The women of Shaheen Bagh demanded a hearing of their grievances, but their calls for engagement were repeatedly refused; such an expectation was itself dubbed disruptive and mischievous.
The Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC) are a special legal regime that redraws boundaries so that those who were secure in their citizenship can potentially be expelled or reconstituted as different kinds of subjects. It led to widespread protests in the country, of which Shaheen Bagh's women-led sit-in became emblematic. The women of Shaheen Bagh demanded a hearing of their grievances, but their calls for engagement were repeatedly refused; such an expectation was itself dubbed disruptive and mischievous.
No political leadership, whether representative of the Central government or of the state government, offered to meet with the protestors. Neither did the local administration, which is normally the first point of contact between protestors and state during all manner of protests. In this instance, the state did not feel the need to build bridges. It let things come to a boil and result in large scale violence, directed mostly at Muslims.
The Constitutional Court too very clearly considered 'the protestors' and 'the commuters' as leading quite parallel lives, and the former disturbing the latter by occupying public space as they went about their lives. Had it perhaps considered protests as being integral to democratic society, it might have taken a different view about their potential to cause disorder. It might even have weighed the 'inconvenience' caused to commuters with that caused to those protesting a new law they feared would upturn their lives, and yet in which they had had no say. It may have considered that the protestors had been sleeping on the public way through a harsh winter hoping that the Constitutional Court would decide the validity of this law sooner rather than later. However, these questions really belong in the realm of the sociology of law. The Constitutional Court, despite being affected by such sociologies likes to formally limit itself to questions of law.
“The Constitutional Court too very clearly considered 'the protestors' and 'the commuters' as leading quite parallel lives, and the former disturbing the latter by occupying public space as they went about their lives. Had it perhaps considered protests as being integral to democratic society, it might have taken a different view about their potential to cause disorder.
Coming back to McKesson, the Supreme Court of the US [592 US (2020)] allowed the Petitioners' writ of certiorari and set aside the decision of the Fifth Circuit Court. However, it did so on an additional technicality: it found that protected activity could not prima facie be displaced on the basis of vague torts. Thus, it held that it must first be determined by the Louisiana State Supreme Court whether state law even construed protests in violation of traffic regulations as negligent tortious action, permitting recovery of damages. The constitutional issue of whether such a law would be in violation of First Amendment rights would be implicated only if the State Court were to hold that such a law existed in the first place.
In India, in the Uttar Pradesh anti-CAA Billboards case (SLP 6286/2020), the UP government had deemed it just and proper to put pictures, names and addresses of almost 57 anti-CAA protestors on display on public billboards. It declared them liable for damages to public properties that allegedly took place during the protest. It was not clear whether the UP state had held them responsible for directly damaging public property, or whether they were being punished for 'negligent behaviour' in having organized a protest, a la McKesson.
The Allahabad High Court declared such an act violative of the protestors' right to privacy. The question of how far wide the liability net may be cast, however, was left undecided.
The Supreme Court admitted the state's appeal against the order of the High Court. The Bench briefly wondered how the UP government could have put up billboards in the absence of any law to that effect. As in the McKesson case, the Indian Supreme Court was presented with an invasive act that sought to displace fundamental rights, without even having any sanction in law: the billboards making protestors liable for damages had been put up in the absence of any law in force at the time, and simply on the basis of executive fiat. However, in reasoning contrary to the US Supreme Court in McKesson, the Indian Supreme Court, having raised the issue of lack of 'precision of regulation', did not declare the action prime facie illegal and violative of rights. It simply referred the matter to a larger bench. The billboards with the 57 faces and names remained.
In the meanwhile, legal practitioners continue to argue that the practice of law is based on transparent, rational and consistent legal methods. It is 'protest' that proves chaotic and causes deviations in precedence.
(Shahrukh Alam read Law and Sociology and now practices at the Supreme Court. The views are personal.)