Shaheen Bagh and dissent in a democracy
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 should the administration 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.” This is a comment made by Justice Sanjay Kishan Kaul of the Supreme Court on the Delhi High Court’s order of January 14 this year in the case of the Shaheen Bagh protest against the Citizenship (Amendment) Act of 2019.
I have known Sanjay Kishan since the 1980s when I was a young teacher in Delhi University’s law faculty and he a student there pursuing the basic law degree course. When, after about two decades of practice at the Bar, he was appointed a judge of the Delhi High Court, my faculty colleagues and I eagerly waited to see what policies he would adopt as a dispenser of justice. He did not disappoint us and in fact earned our admiration for his balanced verdicts giving high priority to the people’s human and constitutional rights.
I was especially enamoured by his dictum in the criminal proceedings against nonagenarian artist Maqbool Fida Husain who had been accused of obscenity and sacrilege. “Democracy has wider moral implications than mere majoritarianism” and “freedom of speech has no meaning if there is no freedom after speech,” Sanjay Kishan had observed, and quashed all summons and warrants of arrest. After his elevation as the Madras High Court Chief Justice, Sanjay maintained his zeal for protecting authors’ and artists’constitutional freedoms against the growing intolerance in society. His 2016 judgment in another obscenity case, involving celebrated Tamil writer-professor Perumal Murugan, too long but brilliant, was no less appreciable. The wake-up call was issued in that judgment: “It is a matter of concern that as an evolving society, our tolerance level seems to be on the decline.” It added to his stature as a people’s judge always ready to protect their rights and freedoms.
With the pleasant memories of these observations of the liberal judge of Maqbool-Murugan fame fresh in my mind, when I looked at his October 7 judgment in the Shaheen Bagh case, I was a bit disappointed. I had publicly appreciated in my media columns the apex court’s initial handling of the matter with the wisdom and pragmatism expected from a judicial body having a constitutional obligation to protect the citizens against arbitrary actions of the powers that be. By saying in the judgment that “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 feel aggrieved by the legislation” and “we are conscious that we charted a different path and thought of an out-of-the-box solution towards an effort which can loosely be called a mediation”, the court has reminded itself of its people-friendly stand at the beginning.
The final judgment is, however, disappointing in that there is not even a whisper in it on the background events that had led to the Shaheen Bagh protest — suppression of young citizens’ constitutional rights on the campuses of the Capital’s two educational institutions of international fame which had prompted a section of women citizens to stage the Shaheen Bagh protest, knowing well that it would be like sitting on a volcano. The Delhi High Court decision of January 14 and the apex court’s order of February 17 had the effect of protecting the peaceful protesters from state agencies’ notorious modalities for stifling democratic dissent. This judgment may be misused to undo their salutary effect of taming the beasts of atrocities.
The judgment concludes with the words: “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 self-ruled democracy.” With respect, I differ from this viewpoint. Must not the citizens of a self-ruled democracy have greater freedom to censure the actions of their elected rulers?
Shaheen Bagh was not an ordinary protest by ordinary people against an ordinary state action. It was an extraordinary protest by extraordinary people against an extraordinary action unduly taken by the state authorities. The intellectuals who had hailed it, and appreciate it till date, are not pygmies or lesser patriots than those who have been attributing sinister designs to it. Impartial journalists have written books on Shaheen Bagh. They never had political aspirations and their well-researched works cannot be brushed aside as fiction.
Sanjay Kishan has concluded his judgment by saying, “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.” To this pious hope, he could have also added a word of caution to the custodians of state authority to refrain from taking an indiscriminate action that has the potential of sparking a genuine protest by duty-conscious citizens. This would have added another feather to his cap.
