AMIT SAHNIversusCOMMISSIONER OF POLICE & ORS.

                        [2020] 12 S.C.R. 151                             151


                           AMIT SAHNI                                    A
                                  v.
              COMMISSIONER OF POLICE & ORS.
                   (Civil Appeal No. 3282 of 2020)
                        OCTOBER 07, 2020                                 B
    [SANJAY KISHAN KAUL, ANIRUDDHA BOSE AND
                    KRISHNA MURARI, JJ.]
      Constitution of India – Arts.19(1)(a), (b) – Right to protest,
subject to reasonable restrictions – Citizenship (Amendment) Act,        C
2019 – Protests in different parts of the country – Kalindi Kunj-
Shaheen Bagh stretch, including Okhla underpass blocked in Delhi
– Public roads encroached – Writ Petition filed before Delhi High
Court – Disposed of with directions to authorities – Situation
remained the same – Present appeal; intervention applications by
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various parties – Two interlocutors appointed, their efforts not
successful – Arrival of Coronavirus pandemic – Site cleared with
some police action – Held: Reliefs in the present proceedings though
worked themselves out – Art.19 confers upon its citizens, the right
to freedom of speech and expression and the right to assemble
peacefully without arms – However, these rights are subject to           E
reasonable restrictions – Present case was not even one of protests
taking place in an undesignated area, but was a blockage of a
public way causing grave inconvenience to commuters – Such kind
of occupation of public ways for protests is not acceptable – Public
ways, spaces cannot be occupied indefinitely.
                                                                         F
      Disposing of the appeal, the Court
      HELD: 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   G
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. These rights are subject to reasonable restrictions,
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                                 151
152            SUPREME COURT REPORTS                       [2020] 12 S.C.R.


A     which, inter alia, pertain to the interests of the sovereignty and
      integrity of India and public order, and to the regulation by the
      concerned police authorities in this regard. 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 the
B
      Court to reach a solution where the rights of protestors were to
      be balanced with that of commuters. However, while appreciating
      the existence of the right to peaceful protest against a legislation,
      it is made unequivocally clear that public ways and public spaces
      cannot be occupied in such a manner and that too indefinitely.
C     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. The plea of
      the applicants that an indeterminable number of people can
D
      assemble whenever they choose to protest cannot be accepted.
      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. The High Court also should have
E     monitored the matter rather than disposing of the Writ Petition
      and creating a fluid situation.[Paras 16, 17, 19 and 20][158-A-G'
      159-E-F]
            Mazdoor Kisan Shakti Sangathan v. Union of India &
            Anr. (2018) 17 SCC 324 : [2018] 11 SCR 586; In re
F           Ramlila Maidan Incident (2012) 5 SCC 1 : [2012]
            4 SCR 971; Himat Lal K. Shah v. Commissioner of
            Police, Ahmedabad & Anr. (1973) 1 SCC 227 : [1973]
            2 SCR 266 – relied on.
                              Case Law Reference
G     [1973] 2 SCR 266                   relied on          Para 14
      [2018] 11 SCR 586                  relied on          Para 15
      [2012] 4 SCR 971                   relied on          Para 16

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       AMIT SAHNI v. COMMISSIONER OF POLICE & ORS.                             153


      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3282                      A
of 2020.
         From the Judgment and Order dated 14.01.2020 of the High
Court of Delhi at New Delhi in Public Interest Litigation Writ Petition
(Civil) No. 429 of 2020.
       Tushar Mehta,SG, Ms. Aishwarya Bhati,ASG, Balraj Dewan,                 B
Abhishek Chauhan, Ms. Rajshree Dudey, Gurmeet Singh Makker, Anmol
Chandan, Pranay Ranjan, Ms. Swati Ghildiyal, Rajat Nair, Kanu Agrawal
for B. V. Balaram Das, Sanjay R.Hegde, Mansoor Ali, Chirag M.Shroff,
Ms. Sanjana Nangia, Ms. Abhilasha Bharti, Advs. for the appearing
parties.                                                                       C
       In-person - Amit Sahni, Ashutosh Dubey.
       The Judgment of the Court was delivered by
       SANJAY KISHAN KAUL, J.
      1. Our country made tryst with destiny on the midnight hour of           D
  th
15 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. One of the bedrocks of the Constitution of India is the separation   E
of powers between the Legislature, the Executive and the Judiciary. It is
the function of the Legislature to legislate, of the Executive to implement
the legislation, and of the Judiciary to test the constitutional validity of
the legislation, if a challenge is so laid.
       3. The Legislature, in its wisdom, enacted the Citizenship              F
(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.                             G

       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
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154             SUPREME COURT REPORTS                           [2020] 12 S.C.R.


A     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.
B     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 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
C     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
D     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
E     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
F     therein filed the present appeal by way of a Special Leave Petition against
      this order of the High Court.
             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
G     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.

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     AMIT SAHNI v. COMMISSIONER OF POLICE & ORS.                                     155
              [SANJAY KISHAN KAUL, J.]

       9. In our endeavour of pursuing an out of the box solution, we had            A
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
                                                                                     B
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              C
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 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                  D
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               E
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             F
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                   G
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 ramifications of the pandemic, coupled with a general
unwillingness to relocate to another site.                                           H
156                SUPREME COURT REPORTS                       [2020] 12 S.C.R.


A            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!
B            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
C     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.
D            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 19(1)(a) and 19(1)(b)
E     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.

F             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
G     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

      1
H         (1973) 1 SCC 227
        AMIT SAHNI v. COMMISSIONER OF POLICE & ORS.                               157
                 [SANJAY KISHAN KAUL, J.]

these rules violated Article 19(1)(b) of the Constitution of India, it was        A
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 contain any guidance
                                                                                  B
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                    C
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        D
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          E
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, etc. However, as such orders were repeatedly being passed,           F
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.
                                                                                  G
       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
2
    (2018) 17 SCC 324                                                             H
158                SUPREME COURT REPORTS                         [2020] 12 S.C.R.


A     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
B
      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
C     of the sovereignty and integrity of India and public order, and to the
      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
D
      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
E     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
F     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
G     exist primarily for other purposes and the social interest promoted
      by untrammeled exercise of freedom of utterance and assembly in
      public street must yield to social interest which prohibition and

      3
          See In re Ramlila Maidan Incident, (2012) 5 SCC 1
      4
          (supra)
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     AMIT SAHNI v. COMMISSIONER OF POLICE & ORS.                                   159
              [SANJAY KISHAN KAUL, J.]

regulation of speech are designed to protect. But there is a                       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      B
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          C
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                 D
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.
       19. We have, thus, no hesitation in concluding that such kind of
occupation of public ways, whether at the site in question or anywhere             E
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   F
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     G
a lapse of a considerable period of time, there was neither any
negotiations nor any action by the administration, thus warranting our
intervention.

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160            SUPREME COURT REPORTS                        [2020] 12 S.C.R.


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


C     Divya Pandey                                            Appeal disposed of.




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