Above: A Supreme Court bench of Justices AK Sikri (top) and Ashok Bhushan insisted on guidelines to regulate protests instead of banning them altogether
The apex court has taken the middle path in allowing the right to protest peacefully along with the right to live without noise pollution
~By Venkatasubramanian
The Mazdoor Kisan Shakti Sangathan (MKSS) is a grassroots, unregistered people’s organisation formed in 1990 with its headquarters in Dev- dungri, Rajasthan. It was a crucial part of the movement that led to the passage of the Right to Information Act in 2005.
P Ayyakannu, a resident of Tiruchirappalli, Tamil Nadu, led a month-long protest in Delhi by Tamil Nadu farmers, demanding better living conditions in drought-prone areas.
Savita (name changed), who claims she is a human rights activist from Ludhiana, had been sitting at Jantar Mantar since January 2013, demanding action against a police officer who allegedly raped her in 2010.
The Indian Ex-Servicemen Movement (IESM), Gurugram, established in August 2008, has been agitating over issues affecting the implementation of One Rank One Pension for the armed forces, and for other issues relating to the honour of defence personnel.
The MKSS, Ayyakannu, Savita and IESM have nothing in common, except that they are joint petitioners in the Supreme Court demanding safeguarding of their right to protest peacefully in the Capital at a place which is likely to grab the attention of those holding power and influence.
A Supreme Court bench of Justices AK Sikri and Ashok Bhushan on July 23 decided the petitions in their favour by directing the commissioner of police, Delhi, to formulate proper and requisite guidelines within two months to effectively regulate protests and demonstrations instead of banning them altogether.
The proposed guidelines, the bench suggested, may include provisions for regulating the number of persons intending to participate in such demonstrations and specifying the distance from Parliament House, North and South Blocks, Supreme Court, residences of dignitaries, and so on, within which no such demonstrations would be allowed. The guidelines may also involve restrictions on certain routes through which normally the prime minister, central ministers, judges and the like pass; not permitting any demonstrations when foreign dignitaries are visiting a particular place or passing through a particular route; not allowing firearms, lathis, spears, swords, and so on to be carried by demonstrators; not allowing them to bring animals or pitch tents or stay overnight; prescribing time limits for such demonstrations; and placing restrictions on such demonstrations, et al, during peak traffic hours.
Article 19(1)(b) guarantees to all citizens the right to assemble peaceably and without arms. However, the apex court noted that the ground reality is entirely different in the capital. Orders passed under Section 144, CrPC, do not appear to incorporate any illegality as they prohibit public meetings, assembly of five or more persons, processions, demonstrations, dharnas, and so on. “without written permission”. Further, such orders are passed on the basis of intelligence reports which indicate that “unrestricted holding of public meetings”, etc., in the area is likely to cause obstruction to traffic, danger to human safety and disturbance of public tranquility.
An order passed under Section 144 remains valid for 60 days, which is the limit prescribed in that provision. However, just before the expiry of one order, another identical order is passed. Such repeated orders, in continuum, have created a situation of perpetuity. The Delhi Police and the centre argued before the Court that as there is no change in the situation, which remains the same insofar as sensitivity of the area and specific/peculiar conditions prevailing, such orders in repetitive form are necessitated.
The bench held: “Even if we accept this position and proceed on that basis, this would only mean continuous regulation of the proposed public meetings, processions, demonstrations, etc. by not allowing the same in ‘unrestricted’ manner. However, in reality, no such activities are allowed at all and, therefore, the situation which is created amounts to ‘banning’ these public meetings, demonstrations, dharnas, etc. altogether rather than ‘regulating’ the same.”
The MKSS wanted the Boat Club area in New Delhi to be available for demonstrations. The centre argued that mere apprehension of breach of peace was sufficient to prohibit any demonstration or dharna. Section 144 permitted anticipatory action and, thus, even on anticipation that a particular demonstration may lead to breach of peace, was sufficient to invoke the provision, and prohibitory orders could be passed, the centre submitted. Likely obstruction to traffic, danger to human safety and disturbance of public tranquility were cited as reasons.
The bench agreed with the respondents that the Supreme Court has not adopted “clear and present danger test” as applied by US courts, and instead it is the “apprehension of breach of peace test” which is to be used in order to decide whether a particular demonstration or dharna is to be allowed or not. The bench clarified that a provision can be made for taking prior permission from the police commissioner (or his designated authority) for holding a demonstration by a particular group. And while examining such proposals, the parameters can be laid down which shall be looked into in order to decide whether the permission is to be granted or not.
The National Green Tribunal (NGT) had held on October 5, 2017 that loud demonstrations were increasing by the day in the Jantar Mantar area and were causing hearing problems, blood pressure, hypertension and other serious diseases relating to the heart. The environmental conditions at Jantar Mantar Road in relation to noise pollution, cleanliness, management of waste and public health had grossly deteriorated.
The NGT, therefore, found merit in the original application filed by the residents of the Jantar Mantar area and directed authorities not to permit demonstrations there. It had directed authorities to make available the Ramlila Maidan in the capital as an alternative to Jantar Mantar for the purpose of holding protests and demonstrations.
The petitioners stressed before the Supreme Court that the purpose of holding such demonstrations and raising slogans is that they reach the concerned persons for whom they are meant. The bench answered their concern by saying that technology would help them, especially electronic and print media, including social media applications such as WhatsApp, Twitter, Instagram, and so on.
It added that nobody can claim that he or she has a right to hold a demonstration in one particular area only. “While regulating such demonstrations in public interest, particular areas can be earmarked. On the other hand, it is also to be acknowledged that Ramlila Maidan may not be sufficient to cater to this requirement. Again, this place in old Delhi is a part of a very congested area and it has its own limitations when it comes to using this area for such purposes.
“Therefore, some other area is required. Since, Jantar Mantar was the area chosen by authorities and has been in use for quite some time, balancing can be done by permitting a limited part of this area for holding peaceful public meetings, processions etc. at least to small groups, and in such a manner, that there is no disturbance or inconvenience of any nature whatsoever, insofar as residents are concerned,” the bench held.
On Jantar Mantar as the site of protests for many decades, the bench observed: “The dharnas and protests were allowed to be stretched almost on the entire Jantar Mantar road, on both sides, and even across the width of the road. Instead, a particular area could have been earmarked for this purpose, sufficiently away from the houses etc. so that there is no unnecessary blockage of roads and pathways. Likewise, the demonstrators were allowed to go on with non-stop slogans, even at odd hours, at night, and that too with the use of loudspeakers, etc. the authorities could have ensured that such slogans are within the parameters of noise pollution norms and there are no shoutings or slogans at night hours or early morning hours.”
The bench indicated that dharnas, agitations and processions could be prohibited on certain occasions, whenever some foreign dignitaries visit and pass through the area or at other sensitive times. The authorities could also ensure that the protesters do not bring their trucks/buses and park those vehicles in and around the residential buildings; the protesters are not allowed to pitch their tents and stay for days together; they are not allowed to bathe or wash their clothes using Delhi Jal Board tankers or defecate in the open, and create any unhygienic situations.
The authorities, the bench said, could refuse permission for any such demonstration when the number of protesters who are likely to participate is going to be abnormally large, which, if allowed, would per se create hardships for the residents.
The Supreme Court’s balancing of the two fundamental rights through reasonable restrictions on the right to assemble peaceably will hopefully make available public spaces for legitimate purposes, including the exercise of citizens’ right to mobilise opinion on issues of concern.