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) 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., (1973) 1 SCC 227 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 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., (2018) 17 SCC 324, 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, 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 selfruled 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 regulation by the concerned police authorities in this regard [In re Ramlila Maidan Incident, (2012) 5 SCC 1]. 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 case had eloquently observed that “Streets and public parks 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 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 fueled 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.

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.