Supreme Court On Shaheen Bagh Protest: Does A Well-Meaning Judicial Anguish Become A Binding Law?
By Arghya Sengupta
22
November, 2020
The
judgment of the Supreme Court in the Shaheen Bagh case has been met with
near-universal dismay by commentators. The dismay appears warranted since the
Court has opined on a delicate question of constitutional law rather bluntly,
holding unequivocally that “public ways and public spaces cannot be occupied in
such a manner and that too indefinitely”. It has also said that protests need
to be in “designated places” without any indication of the method of
designation or what kinds of spaces can be designated.
Representational image | Shaheen Bagh protest | Manisha Mondal |
ThePrint
-----
The phrase
“in such a manner”, though quite obviously referring to the Shaheen Bagh
protests occupying a stretch of an arterial road, is left vague. Is it the
permanent nature of the protest that is disallowed in the future or tents being
set up on the road or perhaps tents being set upon a particular kind of road?
Further, what is “indefinitely” – does a week count as indefinite? A fortnight?
What is the basis for determining when a protest is continuing indefinitely?
These
questions may appear pedantic, but when dealing with constitutional law
judgments, these are precisely the kinds of questions that the Court ought to
be asking itself and we ought to be asking of the Court. Unambiguous principles
of constitutional adjudication (like the way in which the opinion of the Court
in this case has been received) are usually suspect, which is why they are so
rare. Constitutional questions require dissection with a sharp surgical knife;
what the Court used in this case instead was a hacksaw.
Representational image |
Shaheen Bagh protest
-----
Much has
been written about how the judgment of the Court limiting the right to protest
will be used by governments against citizens. While this is possible, I argue
in this piece that the judgment of the Supreme Court in this case is not
binding law. If governments do want to use it in future cases or to justify
future executive action removing protests, they would be incorrect in their
reading of the law. Here’s why:
The ABC of
reading judgments, something that is taught in the first week of law school, is
that only the ratio decidendi of a judgment is binding. The ratio decidendi (or
simply ratio) of a judgment is that part of the judgment which is the principle
on which the case was decided. For example, in the NJAC case, the National
Judicial Appointments Commission was struck down on the ground that primacy of
judges in judicial appointments is necessary for judicial independence which is
part of the basic structure of the Constitution. Ergo—primacy of judges in
judicial appointments is necessary for judicial independence— is the ratio
decidendi of this judgment. Imagine it to be the core principle without which
the judgment would not remain the same.
Now, in this
case, there was no ratio decidendi whatsoever. This is because there was simply
no case which had to be decided. With the onset of the pandemic, the protests
at Shaheen Bagh were disbanded and all obstacles on the roads were removed. The
Court notes that this ought to have been the end of the matter when it writes:
“Thus really speaking, the reliefs in the present proceedings have worked
themselves out.” (Para 12).
With the
protests themselves having ceased, the matter which related to the legality of
the protests, had no legs to stand on. Ordinarily, the Court ought to have
disposed of the petition without delivering any judgment, since none was called
for. That it did not choose to do so is a separate question, which I have
written about elsewhere. For the purpose of this article, it is sufficient that
there was no case to be decided, and hence no principle on which the case was
decided, and hence no ratio decidendi. There is thus no part of this opinion
that is binding law. This implies that the opinion does not bind future courts
or governments in any manner whatsoever.
Representational image |
Shaheen Bagh protest
-----
But even if
it is not binding, does it have persuasive value? This gets us to an analysis
of a second Latin term, taught together with ratio decidendi in law school,
obiter dicta. Obiter dicta refers to that which is said in passing, that is not
necessary for the decision in this case. Everything in a judgment except the
ratio decidendi is obiter dicta. In today’s parlance, it is anything that is
said BTW.
But what
happens in a case which has no ratio decidendi? Purely as a matter of logic, if
the entire judgment is given by the way, then it is not a judgment at all, but
rather a lecture given by a judge from the Bench. A lecture by a Supreme Court
judge deserves our greatest respect. But it is not binding on future courts or
governments.
Even
otherwise, if we assume that it is indeed obiter dicta (and everything in the
judgment is obiter dicta), as far as its persuasive value is concerned, the
Supreme Court has itself held in a number of cases (there are a few exceptions
which need not detain us) that it is not persuasive by virtue of the fact that
it is obiter dicta per se. It will be persuasive in law only if it is
persuasive in substance.
Looking at
the substance of the Court’s opinion in this case, the position of law asserted
by the Supreme Court—public ways and spaces cannot be occupied for protests
indefinitely and have to be in designated places—may appear reasonable to many
at first glance. But for it to be persuasive it needs to remain reasonable
after being carefully considered.
Any public
protest in the physical world will have to be in a public space; if it is in
someone’s home then by definition, it is not a public protest. The moment it is
in a public space, it will cause someone else who legitimately wanted to use
that space for a different purpose, some inconvenience.
Representational image |
Shaheen Bagh protest
-----
The
question here is not whether such a protest can carry on indefinitely;
protests, unlike milk packets, don’t ordinarily come with an expiry date.
Instead, the question is when does the fundamental right to protest give way to
the competing fundamental right to travel freely, work, play or whatever else
may be hindered as a consequence of the protest. Imagine if even a small group
blocked the roads leading into and out from a major railway station protesting
against the imminent privatisation of the railways. It is not about such a
protest being indefinite, it is about such a protest irreversibly impeding the
freedom of others to travel where they please, even if it takes place for an
hour or two. Again, an indefinite non-violent protest against tampered electric
meters by an individual sitting outside her own house may not cause much
inconvenience to anyone at all. Again, it is not about such protest being
indefinite that is determinative of whether it should be allowed to continue or
not.
An
assessment of the reasonableness of a protest and action in removing such a
protest will necessarily have to be assessed and balanced in light of the facts
in a given case. In some fact situations, the protest may not be indefinite; in
some others, it may. It all depends.
Second, it
is a logical leap for the Court to go from the statement that protests cannot
be carried on indefinitely to a distinct statement that protests must take
place in designated sites alone. This can be stated differently—if the attempt
of the Court is to balance the freedom of protest with the freedom of
non-protesters to go about their daily lives without hindrance, then it needed
to have first assessed the basis on which governments demarcate legally
accepted sites of protest and whether that is reasonable. It has not done so in
this case.
Without an
assessment of whether limiting protests to such designated sites is reasonable
or not, the Court cannot itself jump the gun and require all protests to be at
designated sites. That is simply not the job of the courts. It may persuade
someone so inclined in the first place, but it is certainly not persuasive as a
matter of law or logic.
Indefinite
protests can easily be conflated with anarchy, which may have led the judges of
the Supreme Court to express their anguish. Equally eminent judges have
expressed similar sentiments in the past. But well-meaning judicial anguish
does not become binding law. If the law
matters in the country, then its fundamental rule of ratio decidendi taught
dutifully to first-year law students for decades, ought to matter too.
-----
Arghya Sengupta is Research Director, Vidhi
Centre for Legal Policy. Views are personal.
Original Headline: Supreme Court’s Shaheen Bagh
judgment is well-meaning judicial anguish, not binding law
Source: The Vidhi Legal Policy
New
Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism