The recent judgment of the Supreme Court that refused to review its earlier verdict on the Shaheen Bagh protest is inseparable from its political context. The verdict of October 7, 2020 declared that there is no absolute right to protest, and it could be subjected to the orders of the authority regarding the place and time. Apart from thinking about the legal and constitutional issues, it can also lead to a discourse on the moral authority of the top court in dealing with such fundamental questions related to freedom.

Both the judgments came out at the time of ongoing street agitations. Protest “at anytime and anywhere” has not been as simple as conceived in the judgments. The agitations against the Citizenship (Amendment) Act (CAA) and the farm laws also brought out the immense agony and hardship that the protesters had to face. In the anti-farm laws struggle, they experienced suffering over almost the entire winter for a cause which they believe as one that concerns the whole nation. They had to pay a heavy price for their convictions. Many were subjected to malicious prosecution by the state on serious charges of sedition and terrorist activities. Not only the protesters but also their supporters, including comedians and journalists, were not spared. All freedoms under Article 19 of the Constitution, from freedom of expression to that of peaceful association, were seriously impaired.

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Even today, many languish in jail for the offence of dissent and the more serious offence of ‘andolan’. Disha Ravi, a 22-year-old climate activist, was booked recently for ‘conspiracy against the government’. Such arrests continue because the protests are a political challenge to the existing regime, a theme which the Court did not even address with contextual details.

There is a more significant question that a citizen could pose against the Court’s pronouncements on the Shaheen Bagh protest. The agitations on the street became an imperative because the issues were not subjected to a timely judicial examination. The subject matter of almost all the major protests which have happened recently in India, be it over ‘economic reservation’, the CAA or the farms laws, involved legal and constitutional issues requiring immediate and effective adjudication in terms of their constitutional validity. The top court could not exercise its constitutional role and ensure judicial scrutiny on an aggrandising executive and an equally imposing Parliament by exercising its counter-majoritarian function. Having failed to do so, the kind of ‘balancing’ which the Court now tries to attain by way of the Shaheen Bagh orders will pose more questions than it answers.

In the original judgment on Shaheen Bagh, the Court attempted to “mediate” the issue and admitted in the judgment that it “did not produce any solution”. The Court’s duty during the testing times is to adjudicate, and not to mediate. A reconciliatory approach is not a substitute for juridical assertion. The review petition provided the Supreme Court an opportunity to revisit its earlier folly where it merely acted as a judicial extension of the executive. It could have taken empirical lessons from a political situation that was almost proximate to an internal Emergency.

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Constitutional morality is a philosophy that should primarily apply to the constitutional courts. Dr. B.R. Ambedkar used this idea in terms of institutions and not of individuals. Had there been a timely adjudication of the validity of the laws which was questioned by the process recognised by the law, the torment on the street could have been probably reduced.

A fair and effective adjudicative mechanism in constitutional matters can meaningfully sublimate the agitation on the street. Studies have shown that social movements could be less radical and less oppositional when the issues could be effectively sorted out by way of fair litigative means. Sociologist Luke Martell was of the opinion that the radical green movement in Britain has been at a slower pace when compared with other parts of western Europe, because the “public enquiry system” in the United Kingdom could “process ecological demands, integrate them into the political system and minimise radicalisation of the movement arising out of exclusion and marginalisation”. The principle can have application across the constitutional democracies.

The textbook theory of “balancing” the right to protest and the right to move along the road does not need any reiteration in the constitutional climate of the present day. When fear is the new normal for the average Indian, the Court’s only role is to act as the guardian of the right to dissent.

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In the review petition, the petitioners rightly apprehended that the observations in the earlier judgment against the indefinite occupation of public space “may prove to be a license in the hands of the police to commit atrocities on legitimate voice of protest”. The Court, by its present rejection of the plea, has reinforced an illiberal state’s intimidating stand during another unjust political situation. Its affirmation of the earlier view is not merely insensitive or surreal. It illustrates an instance of “abusive judicial review”, as described by David Landau and Rosalind Dixon, where the Court not only refuses to act as the umpire of democracy but aids the executive in fulfilling its strategies. In the process, it legitimises very many illegitimate state actions.

In the 2020 verdict,the Supreme Court has also failed to properly appreciate and contextualise the earlier Constitution Bench judgment in Himat Lal K. Shah vs Commissioner of Police (1972) even after referring to it. It is the state’s intrusion into the realm of rights that should worry the Court. In Himat Lal K. Shah, the Court said that the rule framed by the Ahmedabad Police Commissioner conferred arbitrary power on the police officers in the matter of public meetings and, therefore, was liable to be struck down. Justice Kuttyil Kurien Mathew, in Himat Lal K. Shah, explained that “freedom of assembly is an essential element of a democratic system” and that “the public streets are the ‘natural’ places for expression of opinion and dissemination of ideas”.

In the review petition, it was not the cause alone that was tried. It was also the Court.

Kaleeswaram Raj is a lawyer at the Supreme Court of India

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