Right to protest strengthens representative democracy: Why Supreme Court overturning ban on Jantar Mantar, Boat Club gatherings is huge

[dropcap]A[/dropcap] Supreme Court bench comprising Justices AK Sikri and Ashok Bhushan disposed off a bunch of petitions pertaining to the permissibility of protest gatherings in central Delhi, and at Jantar Mantar. The judgment penned by Justice Sikri addressed grievances of various petitioners which were clubbed together.

The first petition was a Public Interest Litigation filed under the ambit of Article 32 challenging the repeated imposition of Section 144 of Code of Criminal Procedure (CrPC), where a fresh, identical order was passed immediately after the expiry of its antecedent, effectively acting as a blanket ban on all peaceful protests in all of central Delhi, and an infringement upon the fundamental right guaranteed under Article 19(1)(b).

The next petition was an appeal against the National Green Tribunal (NGT) prohibition on all agitations at Jantar Mantar Road in pursuance of a petition filed by residents of Jantar Mantar Road citing the adverse consequences they had to face due to the protests. The residents had claimed that the protests rather than being transient or temporary in nature, resulted in permanent tents being set up, with protesters staying for months. In addition to the noise pollution caused by the demonstrations, issues like the protestors defecating and bathing in the open caused "insurmountable and untold miseries to the residents".

Another appeal against the NGT contending the infringement of the right to protest by the order was filed by a woman who stated that she is the "sufferer for many years for the grave offence of rape by a police officer on June 16, 2010". She had been sitting on a dharna at Jantar Mantar and the aforesaid order to garner the attention of the concerned authorities. The impugned NGT order was challenged to be violative of the rights guaranteed to her under Article 19.

The final petition clubbed together was along similar grounds, a challenge to the NGT order contended to be violative of rights guaranteed under Article 19, and was filed by the Indian Ex-Serviceman Movement.

Breach of fundamental right to peaceful assembly and protest

The bench addressed the issues raised in the first petition filed by an NGO, Mazdoor Kisan Shakti Sangathan (MKSS), represented by Advocate Prashant Bhushan against the imposition of prohibitive orders under Section 144 CrPC over all of Central Delhi. These orders were were contended to be violative of fundamental rights guaranteed under Articles 19(1)(a) and 19(1)(b). Apart from relying upon domestic precedent, Bhushan cited foreign precedents as well as international standards and conventions on the right to peaceful assembly and the right to protest.

His submissions were countered by Additional Solicitor General Tushar Mehta and A N S Nadkarni, who put forth strong refutations to the arguments advanced on the petitioner's behalf, stressing upon the sensitive character of the area of central Delhi to justify the issuance of the impugned orders passed under Section 144 of the CrPC. They further argued that "there was no complete ban imposed on such public meetings etc. and the orders prohibited these meetings etc. without written permission. In other words, before holding any such public meetings, processions, demonstrations, etc. prior permission of the authorities was required which should be considered on case to case basis."

Stating the importance of Central Delhi in light of it housing all the important Central Government offices, they stated that allowing all sorts of protests in that area would bring democratic functioning to a stand still. Further, visits of foreign dignitaries, and the negative impact demonstrations may have upon the fostering of healthy bilateral relations was also cited as a reason. Citing these reasons supported by various judgments, the ASGs contended that the impugned order to be in line the reasonable restrictions laid down by Article 19(2).

'Strengthens representative democracy'

Justice Sikri then proceeded to address the contentions against the NGT order. He iterated the right to protest being a fundamental right and highlighted its importance by stating that "it strengthens representative democracy by enabling direct participation in public affairs where individuals and groups are able to express dissent and grievances, expose the flaws in governance and demand accountability", especially in the Indian context to aid "the assertion of the rights of the marginalised and poorly represented minorities".

He then proceeded to elaborate upon the balancing of the right of the protestors under Article 19(1)(a) and 19(1)(b) and the rights of the residents under Article 21, holding collective interest to be decisive factor.

Justice Sikri adjudicated upon both the issues raised, by asking New Delhi's Commissioner of Police among other respondents to frame proper guidelines to regulate protests, demonstrations etc in Central Delhi for "very restrictive and limited use" in light of the sensitivities pointed out by the ASGs. Further, he directed authorities to examine requests and grant written permission for protests in the area, as contrasted to the continual passing orders under Section 144 CrPC which had created a "situation of perpetuity".

While addressing appeals against the NGT order, the Court held the NGT's order to be "without blemish", but stated that solution was "not to ban the demonstrations".

Reiterating the importance of balancing fundamental rights, he directed the the Commissioner of Police, New Delhi in consultation with other concerned agencies, to devise a proper mechanism with detailed guidelines for "limited use of the area for such purposes but to ensure that demonstrations, etc. are regulated in such a manner that these do not cause any disturbance to the residents of Jantar Mantar road or the offices situated there." The bench also stated for a provision for gaining the requisite written permission to hold protests in that area. A two-month deadline was issued for both the aforementioned actions.

Read the full text of the Supreme Court order.