The Citizenship (Amendment) Act, 2019 (CAA) was passed on December 12, 2019. The law excluded Muslims from its scope of grant of citizenship and led to hundreds of protests being organised in different parts of the country, starting from two universities in New Delhi and later, at Shaheen Bagh in the national capital, which became an inspiration for protest sit-ins elsewhere. The Shaheen Bagh protest had blocked one side of a road connecting Delhi with Noida. Hundreds of petitions were filed in the Supreme Court challenging the legality of the CAA as the protests went on.
In September 2020, the Central government passed three laws which seriously affect the rights of the farmers. Again, several protests have emerged — largely from Punjab and Haryana — to oppose these laws. The Singhu Border, on the outskirts of Delhi, has become the focal point of the protests. These protests have also blocked one side of the national highway connecting Delhi to Karnal and Ghaziabad to Delhi.
The issue of anti-CAA protesters was as genuine as the farmers’ concerns. The nature of the grievances of the affected class of citizens are similar in many ways and both the protests remained peaceful. However, the political class, institutions and the police system have treated the protests very differently.
The first batch of the petitions challenging the CAA was listed on December 18, 2019, and thereafter, on many other dates, related matters were listed. However, despite so many protests going on against the CAA, the Supreme Court did not grant a stay on the legislation. On the other hand, in the backdrop of these protests, without any serious challenge to the farm laws by the affected parties, the Supreme Court considered it appropriate to grant a stay on the implementation of all three farm laws till further orders.
For the Shaheen Bagh protest, the politicians in power made direct attacks by inciting a class of persons to uproot the protest. As a result, both the Shaheen Bagh and the Jamia protests saw incidents of youth firing at the protestors with the police watching. The police also allegedly used force against student protestors from two well-known universities. Though the farm law protestors were also vilified, the government invited them for talks to reach a peaceful resolution and at least 10 meetings have taken place in regard with the Cabinet ministers in attendance. During the anti-CAA protests, the government did not offer to hold any dialogue with the protestors.
At the farmers’ protest sites, the police found ways to make the best use of available road space to minimise public inconvenience whereas, during the Shaheen Bagh protests, the police blocked the clear side of the road to show that the public inconvenience was excessive. While dealing with the issue of public order in relation to Shaheen Bagh protest, the court stated that the “mode and manners of dissent against colonial rule cannot be equated with a dissent in a self-ruled democracy” and such an occupation of public ways, whether at Shaheen Bagh or anywhere else, for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions. The order also noted that despite a lapse of a considerable time, there was neither any negotiations nor any action by the administration, thus warranting intervention.
The Shaheen Bagh judgment needs a closer look. The Court’s observation of taking action and clearing obstruction by police, especially since it is apparent that there has been selective action by the police in such matters, shall have a drastic effect on protesters from vulnerable sections of the population. The judgment gave primacy to one aspect of public importance making another aspect of public importance — the right to criticise government policies by assembling peaceably at places of importance without arms and other rights guaranteed under Article 19 of the Constitution — nugatory and placing them at the mercy of the police. In the case of farmers protests, the Supreme Court ordered that the “farmers’ protest should be allowed to continue without impediment and without any breach of peace either by protestors or by the police”.
In a 2017 judgment, the Supreme Court stated that the right to protest, apart from being recognised as a fundamental right, “is crucial in a vibrant democracy like India but more so in the Indian context to aid in the assertion of the rights of marginalised and poorly represented minorities”.
In this context, the very principle of balancing different fundamental rights by completely segregating the right of protestors to designated and abandoned places makes the right a meaningless exercise, more so when a majoritarian politics is attempting to persecute the country’s marginalised minorities. To set things in order, the CAA needs to be stayed and the Shaheen Bagh judgment reviewed to ensure equal protection to citizens of India.
The writer is advocate-on-record at the Supreme Court of India