The pressing need to adjudicate, not mediate
NEWS The recent judgment of the Supreme Court (SC) that refused to review its earlier verdict on the Shaheen Bagh protest is inseparable from its political context.
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. This judgement of SC can possibly lead to a discourse on the moral authority of the top court in dealing with such fundamental questions related to freedom apart from thinking about the legal and constitutional issues.
- Protest “at any time 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.
- The agitation of Saheen Bagh protest on the street became an imperative because the issues were not subjected to a timely judicial examination.
- And when it was examined, the SC could not exercise its constitutional role and ensure judicial scrutiny on an aggrandizing executive and an equally imposing Parliament by exercising its counter-majoritarian function.
- 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”.
PREVIOUS JUDGEMENTS OVERLOOKED
- In the 2020 verdict, the Supreme Court has failed to properly appreciate and contextualize the earlier Constitution Bench judgment in Himat Lal K. Shah vs Commissioner of Police (1972) even after referring to it.
- 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 case 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”.
- 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.
- Studies have shown that a fair and effective adjudicative mechanism in constitutional matters can meaningfully sublimate the agitation on the street.
- There is the need to balance the right to protest and the right to move along the road in the constitutional climate of the present day, as the Court’s only role is to act as the guardian of the right to dissent.
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