Amit Sahni vs Commissioner Of Police on 7 October, 2020


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

Amit Sahni vs Commissioner Of Police on 7 October, 2020

Author: Sanjay Kishan Kaul

                                                                                    REPORTABLE

                                      IN THE SUPREME COURT OF INDIA
                                       CIVIL APPELLATE JURISDICTION

                                         CIVIL APPEAL NO. 3282 OF 2020


          AMIT SAHNI                                                             …APPELLANT

                                                        Versus



          COMMISSIONER OF POLICE & ORS.                                         …RESPONDENTS




                                                  JUDGMENT

SANJAY KISHAN KAUL, J.

1. Our country made tryst with destiny on the midnight hour of 15 th August

1947, shedding the colonial yoke. Despite the pain and turbulence of the partition,

the best of the legal and political minds assembled together in the Constituent

Assembly to give us one of the most elaborate and modern Constitutions.

2.
Signature Not Verified One of the bedrocks of the Constitution of India is the separation of powers
Digitally signed by
Anita Malhotra
Date: 2020.10.07

between the Legislature, the Executive and the Judiciary. It is the function of the
17:34:25 IST
Reason:

Legislature to legislate, of the Executive to implement the legislation, and of the
1
Judiciary to test the constitutional validity of the legislation, if a challenge is so

laid.

3. The Legislature, in its wisdom, enacted the Citizenship (Amendment) Act,

2019, which has its share of supporters and opponents. The Legislature performed

its task. A section of the society, aggrieved by this legislative amendment, has filed

petitions before this Court under Article 32 of the Constitution of India, assailing

the constitutionality and legality of this amendment, which is pending

consideration. There is no stay of the legislation for the purpose of record.

4. There have been protests against this legislation in Delhi and in different

parts of the country. We had noted in our order dated 17.02.2020 that despite the

law facing a constitutional challenge before this Court, that by itself will not take

away the right to protest of the persons who feel aggrieved by the legislation. We,

however, simultaneously noted that the question was where and how the protest

can be carried on, without public ways being affected.

5. The aforesaid was in the context of a petition which was originally filed

before the Delhi High Court, as Writ Petition (Civil) No. 429/2020, which was

disposed of on the very first day, i.e., on 14.01.2020. The grievance made in the

petition was that the persons opposing the Citizenship Amendment Act and the

National Register of Citizens, the details of which were yet to be propounded, had
2
adopted a method of protest which resulted in the closure of the Kalindi Kunj-

Shaheen Bagh stretch, including the Okhla underpass from 15.12.2019. It was

submitted that the public roads could not be permitted to be encroached upon in

this manner and, thus, a direction be issued to clear the same.

6. The High Court directed the respondent authorities to look into the

grievances ventilated by the petitioner in the writ petition in accordance with the

law, rules, regulations and Government policies, but simultaneously, it asked the

respondent authorities to keep in mind the larger public interest as well as the

maintenance of the law and order. It was also emphasised that the respondents had

all the powers, jurisdiction and authority to control traffic wherever protests or

agitations were going on, in the larger public interest. In such a situation, it was

observed that no specific writ, order or direction can be issued as to how to handle

the agitation or protest, or even the place of protest and traffic, as the same would

be determined based on the ground reality and the wisdom of the police, especially

where situations may keep changing every 10 minutes.

7. However, since the situation remained the same, the petitioner therein filed

the present appeal by way of a Special Leave Petition against this order of the High

Court.

3

8. We may note that intervention applications were also filed by parties

claiming to have the best interests of the agitators in mind, or rather having

sympathy for them. In our order dated 17.02.2020, we had put to the learned

counsel of one of these applicants our concern that there may be persons of

different points of view who may tomorrow seek to emulate this protest and such a

scenario would only lead to a chaotic situation. Such kind of protests were, thus,

required to cease on public ways everywhere.

9. In our endeavour of pursuing an out of the box solution, we had considered

it appropriate to appoint two interlocutors – Mr. Sanjay R. Hegde, learned senior

counsel who was present in Court and Ms. Sadhana Ramachandran, who is a

mediator trainer, to meet the protestors at the site. The interlocutors made

appreciable effort and submitted a report before this court, which was taken note of

by us on 24.02.2020. We had perused the report and found that the nature of

demands was very wide and that it did look difficult to find a middle path towards

at least facilitating the opening of the blocked public way. However, unfortunate

developments in other parts of Delhi required us to adjourn the proceedings.

10. We had the benefit of a second report received on 22.03.2020 and perused

the same. We believe that the interlocutors had done their best, but their efforts

could not fructify into success, although the number of people at protest site had

4
eventually diminished. The report suggested that the views reflected in private

conversations with the protestors were somewhat different from the public

statements made to the media and to the protesting crowd in attendance. While the

women protestors had sat in protest inside the tent, there was a huge periphery

comprising mainly of male protestors, volunteers and bystanders who all seemed to

have a stake in the continuance of the blockade of the road. Even after the arrival

of the pandemic, when a visit was made to the site on 20.03.2020, it was found that

there were about 35-40 takhts inside the tent and each takht had 2-3 women

occupying the space, resulting in a rough estimate of about 75-100 women inside

the tent, as well as 200 or more outside the tent having a connection with the

protest. While the tent was occupying half of the carriageway, the remaining half

of the carriageway had been blocked by creating facilities such as a library, a large

model of India Gate and a big metallic three-dimensional map of India located

upon a very strong metal scaffolding and was anchored by heavy stones making its

removal very difficult. It appeared that an absence of leadership guiding the protest

and the presence of various groups of protesters had resulted in many influencers

who were acting possibly at cross-purposes with each other. Thus, the Shaheen

Bagh protest perhaps no longer remained the sole and empowering voice of

women, who also appeared to no longer have the ability to call off the protest

themselves. There was also the possibility of the protestors not fully realising the

5
ramifications of the pandemic, coupled with a general unwillingness to relocate to

another site.

11. We are conscious that we chartered a different path and thought of an out of

the box solution towards an effort which can loosely be called a mediation.

However, this did not produce a solution. But then, we have no regrets as we are of

the view that it is better to try and fail, than not to try at all!

12. The hand of God subsequently intervened and overtook the situation as not

only our country, but also the world grappled with the Coronavirus pandemic. This

pandemic, by its very definition, required coordination across the country and even

beyond the borders of our country. This resulted in repeated appeals of the

desirability of seclusion as a method to fight the disease. Greater wisdom prevailed

over the protestors at the Shaheen Bagh site and the site was cleared, albeit with

some police action to remove the aforementioned structures. The pandemic has,

however, not seen its end and we are still battling with the same. Thus, really

speaking, the reliefs in the present proceedings have worked themselves out.

13. We, however, pen down a few more lines for clarity on the subject on account

of its wider ramifications. Learned counsel for the applicants Mr. Mehmood

Pracha has sought to canvass that there was an absolute right of peaceful protest,

both in respect of space and numbers. He submitted that the right under Article
6
19(1)(a)
and 19(1)(b) of the Constitution of India are only circumscribed by the

provisions of Clauses (2) & (3), and the only applicable aspect would be ‘public

order’, but such restriction must be reasonable in character. On the other hand, the

appellant herein sought to contend that such a situation should be avoided in the

future and some norms may be laid down.

14. Mr. Tushar Mehta, learned Solicitor General referred to judicial

pronouncements to rebut the case sought to be made out by the applicants. In

Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr.,1 a challenge

was made to the rules framed by the Commissioner of Police, Ahmedabad, by the

powers conferred under Section 33(1)(o) of the Bombay Police Act, 1951. One of

these rules required prior permission to be taken for the holding of public

meetings. The Supreme Court opined that the State can only make regulations in

aid of the right of assembly of each citizen and can only impose reasonable

restrictions in the interests of public order. With regard to whether or not these

rules violated Article 19(1)(b) of the Constitution of India, it was held that while

the State cannot impose any unreasonable restrictions, a right to hold meetings on

public streets was subject to the control of the appropriate authority regarding the

time and place of the meeting and subject to considerations of public order.

However, as the rule requiring prior permission of the concerned authority did not

1 (1973) 1 SCC 227

7
contain any guidance as to when such permission to hold a public meeting may be

refused, it was found that the same conferred arbitrary powers and gave an

unguided discretion to the concerned authority, and this was accordingly held to be

ultra vires Article 19(1)(b) of the Constitution.

15. In Mazdoor Kisan Shakti Sangathan v. Union of India & Anr.,2 this Court

was concerned with regulating the aspect of demonstrations in the earmarked space

by the concerned authorities at Jantar Mantar. The judgment endeavoured to

emphasise on the principle of balancing the interests of the residents in the area

vis-à-vis the interests of protestors to hold demonstrations at Jantar Mantar. The

concerned police authority was directed to devise a proper mechanism for the

limited use of the Jantar Mantar area for peaceful protests and demonstrations and

to lay down parameters for the same. With regard to the orders being passed under

Section 144 of the Code of Criminal Procedure, 1973 prohibiting activities like

holding public meetings, processions, etc. in areas in and around the Parliament

area, the Court noted that the tenor and language of such orders indicated that the

concerned authority was to examine every request and take a decision as to

whether it should or should not allow the proposed demonstration, public meeting

etc., keeping in view its likely effect, namely, whether it would cause any

obstruction to traffic, danger to human safety or disturbance to public tranquility,

2 (2018) 17 SCC 324

8
etc. However, as such orders were repeatedly being passed, the same were held to

amount to create a situation of perpetuity, and also amounted to what would be

equivalent to the “banning” of public meetings, demonstrations, etc. The police and

other concerned authorities were accordingly directed to formulate proper and

requisite guidelines for regulating protests in and around the area.

16. India, as we know it today, traces its foundation back to when the seeds of

protest during our freedom struggle were sown deep, to eventually flower into a

democracy. What must be kept in mind, however, is that the erstwhile mode and

manner of dissent against colonial rule cannot be equated with dissent in a self-

ruled democracy. Our Constitutional scheme comes with the right to protest and

express dissent, but with an obligation towards certain duties. Article 19, one of the

cornerstones of the Constitution of India, confers upon its citizens two treasured

rights, i.e., the right to freedom of speech and expression under Article 19(1)(a)

and the right to assemble peacefully without arms under Article 19(1)(b). These

rights, in cohesion, enable every citizen to assemble peacefully and protest against

the actions or inactions of the State. The same must be respected and encouraged

by the State, for the strength of a democracy such as ours lies in the same. These

rights are subject to reasonable restrictions, which, inter alia, pertain to the

interests of the sovereignty and integrity of India and public order, and to the

9
regulation by the concerned police authorities in this regard. 3 Additionally, as was

discussed in the Mazdoor Kisan Shakti Sangathan case, each fundamental right, be

it of an individual or of a class, does not exist in isolation and has to be balanced

with every other contrasting right. It was in this respect, that in this case, an

attempt was made by us to reach a solution where the rights of protestors were to

be balanced with that of commuters.

17. However, while appreciating the existence of the right to peaceful protest

against a legislation (keeping in mind the words of Pulitzer Prize winner, Walter

Lippmann, who said “In a democracy, the opposition is not only tolerated as

constitutional, but must be maintained because it is indispensable”), we have to

make it unequivocally clear that public ways and public spaces cannot be occupied

in such a manner and that too indefinitely. Democracy and dissent go hand in hand,

but then the demonstrations expressing dissent have to be in designated places

alone. The present case was not even one of protests taking place in an

undesignated area, but was a blockage of a public way which caused grave

inconvenience to commuters. We cannot accept the plea of the applicants that an

indeterminable number of people can assemble whenever they choose to protest.

Justice K.K. Mathew in the Himat Lal case4 had eloquently observed that “Streets

and public parks exist primarily for other purposes and the social interest
3 See In re Ramlila Maidan Incident, (2012) 5 SCC 1
4 (supra)

10
promoted by untrammeled exercise of freedom of utterance and assembly in public

street must yield to social interest which prohibition and regulation of speech are

designed to protect. But there is a constitutional difference between reasonable

regulation and arbitrary exclusion.”

18. Furthermore, we live in the age of technology and the internet where social

movements around the world have swiftly integrated digital connectivity into their

toolkit; be it for organising, publicity or effective communication. Technology,

however, in a near paradoxical manner, works to both empower digitally fuelled

movements and at the same time, contributes to their apparent weaknesses. The

ability to scale up quickly, for example, using digital infrastructure has empowered

movements to embrace their often-leaderless aspirations and evade usual

restrictions of censorship; however, the flip side to this is that social media

channels are often fraught with danger and can lead to the creation of highly

polarised environments, which often see parallel conversations running with no

constructive outcome evident. Both these scenarios were witnessed in Shaheen

Bagh, which started out as a protest against the Citizenship Amendment Act,

gained momentum across cities to become a movement of solidarity for the women

and their cause, but came with its fair share of chinks – as has been opined by the

interlocutors and caused inconvenience of commuters.

11

19. We have, thus, no hesitation in concluding that such kind of occupation of

public ways, whether at the site in question or anywhere else for protests is not

acceptable and the administration ought to take action to keep the areas clear of

encroachments or obstructions.

20. We are also of the view that the High Court should have monitored the

matter rather than disposing of the Writ Petition and creating a fluid situation. No

doubt, it is the responsibility of the respondent authorities to take suitable action,

but then such suitable action should produce results. In what manner the

administration should act is their responsibility and they should not hide behind the

court orders or seek support therefrom for carrying out their administrative

functions. The courts adjudicate the legality of the actions and are not meant to

give shoulder to the administration to fire their guns from. Unfortunately, despite a

lapse of a considerable period of time, there was neither any negotiations nor any

action by the administration, thus warranting our intervention.

21. We only hope that such a situation does not arise in the future and protests

are subject to the legal position as enunciated above, with some sympathy and

dialogue, but are not permitted to get out of hand.

22. We, accordingly, close these proceedings, once again expressing our

appreciation of the difficult roles played by the interlocutors.
12

23. The Civil Appeal stands disposed of, leaving the parties to bear their own

costs.

…………………………….J.

[SANJAY KISHAN KAUL]

…………………………….J.

[ANIRUDDHA BOSE]

…………………………….J.

[KRISHNA MURARI]
NEW DELHI.

OCTOBER 07, 2020.

13



Source link