By Manraj Singh
Delhi is once again caught up in a political and social storm similar to 2019-2020 protests against Citizenship Amendment Act – National Register of Citizens (CAA-NRC) process. The reckoning to negotiate rights, power and legitimacy have once again taken centre stage. This time the agitation is being led by farmers against the three agriculture laws. An important aspect of agitation is about the place of protest as the farmers have occupied some of the highways and roads coming to Delhi from the neighbouring States. Along with the substance of the protest, the place also assumes significance because it determines the visibility and the interface of the protest with other sections of society and pressure it can exert on the Government.
This has brought back into focus the Supreme Court (SC) judgment on Shaheen Bagh protests viz Ajay Sahni vs Union of India, on the subject of where a protest can take place. In December 2019, residents of Shaheen Bagh, a colony in South Delhi had blocked a road in the area to lodge protest against CAA, 2019 which sought to guarantee Indian citizenship to non-Muslims residing in Pakistan, Afghanistan and Bangladesh. The exclusion of Muslims in CAA played on the minds of the community at the discrimination and forebodings of the NRC in which proof of citizenship is demanded from the people. The protestors blocked one of the roads which connected Delhi to Noida.
In early 2020 a Special Leave Petition (SLP) was filed in the SC to get Shaheen Bagh protest site vacated as according to the petitioner it was causing inconvenience to other citizens. It was submitted that the public roads could not be permitted to be encroached upon in this manner hence a direction be issued to clear the same. In the judgment, the Court acknowledged the role and legitimacy of protests in the freedom struggle. It acknowledged the existence of post-independence constitutional machinery in the country to redress the grievances of its citizens. It recognised the right to protest against a law while a constitutional challenge was pending in the courts. However it ended up stating that “manner of dissent against colonial rule cannot be equated with dissent in a self ruled democracy”. It claimed that the right of protest and the right to move freely must be balanced without going into details or providing sufficient reasoning on how to go about it. This sows the seeds of vagueness and opens the judgment to different interpretations.
Professor Apoorvanand in an article highlighted, ” The term ‘self rule’ is a trap. Mahatma Gandhi had famously said that ‘we want English rule without the Englishman.’ The State in itself is coercive, and people have to be eternally alert so that they are not robbed of their sovereignty. One is compelled to ask : Who is this ‘self’ in ‘self rule’? The answer again comes from Gandhi. He says: ‘Real Swaraj will come not by the acquisition of authority by a few, but by the acquisition of the capacity by all to resist authority when it is abused. In other words, Swaraj is to be attained by educating the masses to a sense of their capacity to regulate and control authority”
People are bound to perceive the State as coercive due to inaction in many incidents e.g. during Nirbhaya rape incident, or mistreatment during the Hathras rape case or overlooking the demands of farmers, teachers, doctors and workers asking for fair wages and better working conditions. Issue is should we question the outrage and protests in all these cases through the lenses of inconvenience and legitimacy?
Meaning and metaphor of protest
A public protest is an act of speech and expression, organised and collectivised. It cannot be ordered just like our speech cannot be ordered. What to speak and how to say something is decided by me and you. It is wrong for Government to tell me to do so. SC has done something similar to this. Peaceful protests as devised and perfected during freedom struggle gave us an agency to get voices of the aggrieved groups heard. This discourse is enshrined in our Constitution as Fundamental Rights under Article 19 (1) with reasonable restrictions of public order justified by law. So if civil authorities have a reasonable apprehension of public disorder they may curtail or limit that specific right but the time limit for such restriction is not mentioned anywhere. This begs the question that if the grievance is not addressed should the aggrieved party return home. In Apoorvanand’s words ‘if the injustice is indefinite can the protest be definite?’
A 104 year old freedom fighter H S Doraiswamy who is still in public life in Karnataka has rightly pointed out that this judgment has opened a book of ambiguity. SC in its own judgment in Himmat Lal K Shah vs Police Commissioner Ahmedabad, said that the right to assemble on a public street could be subject to a reasonable restriction in the interest of public order. In the Ajai Sahni judgment it extended this logic and included disruption of traffic as public disorder. Public disorder is a threat to the very rule of law. It may be a riot or a large scale assault on the State. There is no evidence whatsoever that there was violation of public order at that scale at Shaheen Bagh. On reading the judgment, it is not even recorded as being alleged of such a threat. Therefore the vagueness in the judgment muddies the waters and creates confusion among the enforcement agencies and gives them a legal tool to block any form of public protest.
A UN Special Rapporteurs’ report on the right to freedom of peaceful assembly notes that while restrictions to the right of peaceful assembly can be made in the interest of national security or public order, these restrictions have to be lawful, necessary and proportionate to the objective. These restrictions are to be the exception, not the norm, and, very importantly, that they “must not impair the essence of the right (to protest).” The report further explains that a blanket ban on a protest or banning of a specific site is disproportionate because it excludes the circumstances under which such an assembly takes place. The report notes that a certain level of disruption to ordinary life caused by assemblies, including disruption of traffic, annoyance and even harm to commercial activities, must be tolerated if the right is not to be deprived of substance.”
Coming to the issue of reasonable time period of protest assembly, we and the court fail to ask whether similar inconvenience caused during construction of roads by diverting routes is not violation of right to movement. Delays are routine as they may extend to months or even years depending upon the project and circumstances.
In the Shaheen Bagh case SC constituted a committee of two senior advocates to act as interlocutors between Court and protestors of Shaheen Bagh. They presented the report to the Court but it was neither made public nor did the Court allude to its details in its judgment. So we cannot be sure of the premises on which the Court has made these observations about balancing of right to protest and the right of commuters.
Past protests
In a recent interview HS Doreiswamy recalls a protest of which he was a part of in 1935. He and fellow protesters had laid down on the roads to stop trucks, loaded with imported goods, from entering the markets. “It was a road roko. And it worked. Protests are about voicing our opinion in a way that the Government notices it,” he adds.
Violent protests erupted after the horrific Nirbhaya rape incident in Delhi in 2012. Raj Path and India Gate was occupied by young and old. Stone pelting and lathi charge which were anything but signs of peaceful protests happened right near the power corridors of India in the heart of its capital. However, this caused a shift in conversation among the people and the atmosphere around. People talked about consent, women rights, patriarchal society, setting up a committee to look into laws related to rape and eventually an amendment to the law. Sections like stalking and voyeurism were added to the Indian Penal Code, This was a sign of a breathing republic in which the citizen was vocal and the executive was willing to listen.
Protests and Purpose
The current farmers protest is definitely high risk due to blocking of highway, risk of covid-19 and other illnesses and the awaited State response which can be oppressive if negotiations do not succeed. At least 100 people have died due to the cold.
In the long term, protests work because they can undermine the most important pillar of power i.e. its legitimacy. State can be defined by its monopoly on violence, as put forth by Thomas Hobbes and codified by Max Weber, but the complete Weber quote is often overlooked. Weber defined the State by its “monopoly of the legitimate use of physical force.” The word legitimate is as important as the words physical force. In the present case the agitation has been peaceful. Therefore one can argue if violence erupts it will be enacted and enabled by the State. Another pertinent question is if the State enables violence what effect will it have on its legitimacy. The spectre of legitimacy haunts the present Indian State and will haunt more forcefully if it exercises the option of violence and repression. It may repress the movement but it will result in huge loss of legitimacy to the State and make it brittle. The ruling elite will also lose credibility and legitimacy. Deep cracks will develop in the present hegemonic structure. Constant demonizing of farmers as terrorists, free loaders, spoilt people, naxalites, Khalistanis etc, in the media and social media and also by leaders of ruling party are attempts to delegitimise the protests.
There is also a battle of competing narratives being fought. Professor Zeynup Tufekci explains that by themselves, streets don’t magically hold any particular power beyond their ability to start that conversation which concern the society and frame questions. Successful protests are the ones that successfully negotiate the issues framed through negotiations.
Is there a way Forward
Looking back at the history of protests in India and how protests in general create awareness within society, it is important to resolve this impasse. Farmers cannot be expected to stay put on Delhi’s borders indefinitely and Government also has to move on with other governance issues. Passions have to cool down for breakthrough and the responsibility lies on the Central Government. The Government is a servant of citizens and not master of subjects. As Nirbhaya protests led to reforms in law and a conversation on gender violence in society, let this moment in history be defined as dialogue and accommodation of “annadaata” in our discourse of the society. Let the voice of the aggrieved find space in the minds of our leaders and manifest itself through their course of action.
(The writer is an advocate) Email [email protected]