An Inconvenient Truth

The judgment of the Supreme Court of India last month to a petition filed in January this year asking for the Shaheen Bagh protests to be cleared, on the grounds that the protests inconvenienced several commuters by shutting off an arterial road, assumes crucial significance.

This is because the judgment, delivered even though the petition itself had been rendered infructuous over the past seven months because of the protestors having voluntarily cleared the protest site due to the Covid pandemic (in paragraph 12 of the judgment, the bench itself states that “really speaking, the reliefs in the present proceedings have worked themselves out”), deals a further body blow to the right to civil protests in India.

It does so by holding that the occupation of public ways indefinitely anywhere “for protests is not acceptable and the administration ought to take action to keep the areas clear of encroachments or obstructions”. It further rules that “demonstrations expressing dissent have to be in designated places alone”. To drive home the point, it expressly posits that “future... protests are subject to the legal position… enunciated above”.

This is the second of a three-part series to analyze and critique the judgment, and shall use a principled as well as prudential perspective to break down the objective and rationale of civil protests. The first part used a legal lens to compare and contrast the judgment with the Supreme Court’s jurisprudence on the matter of civil protests, and the third part shall use a historical one that looks back at how civil protests of the very kind proscribed by the judgment are interwoven into the rich tapestry of independent India’s history.

An inconvenient truth: Protests must disrupt the status quo

The Supreme Court’s ruling essentially holds that protests and demonstrations cannot occupy public ways indefinitely, and must be restricted to being held at designated spots only.

In order to recognize the speciousness of this position, we must step back and start off with some elementary questions: why do people organize and participate in civil protests, and what is the objective of said protests?

Who are these protestors, and why do they protest?

Protestors are citizens who take to the streets because they have a grievance of some sort with the State, and they see no other way to raise it. The very purpose of demonstration is to ensure that voice of demonstrators is heard by the decision makers so that it has adequate impact, and action and reform takes place. These people may have tried to lodge their grievances with the State, or may not even be in a position to enter a dialogue with the State.

When one cannot get their government to work for them through, for instance, voting in an election, participating in an election rally, or sending comments on proposed bills to legislatures, and those in power continue to ignore them, in spite of their desperation for justice, occupying streets and thereby inconveniencing commuters is taken up as the last resort measure to get their voice registered with their government.

Even in the context of the context of the Shaheen Bagh protests, while they started off, and continued to remain, as an expression of dissent against the Citizenship Amendment Act (CAA) and the proposed National Register for Citizens (NRC), in the course of its 100+ days existence, protestors also raised other pressing issues facing the country such as the rising unemployment rate, women’s safety, the brutal attacks on students inside the Jamia Milia Islamia (JMI) and Jawaharlal Nehru University (JNU) campuses by the Delhi police and unidentified assailants respectively, the suffering of Kashmiri Pandits exiled from the Kashmir valley in 1990, and the shameful riots in north-east Delhi. All of these are issues that are actively ignored by the Union Government, and clearly not treated as areas of priority, even though they materially affect the lives of several Indian citizens.

Moreover, look at the profile of those that made up the protests: it was kick-started by mostly elderly Muslim women, who were then joined by other residents of the Muslim-majority neighborhood, most of whom live in cramped, unauthorized settlements, and later, by university students, men and women from all religious backgrounds from different parts of the city, and, among others, even Punjabi farmers.

They range from ordinary, middle-class citizens with no real power to those at the very margins of society who have actively been oppressed and denied power by social and political institutions. These are not the kind of people who matter in elections, or have any representatives in the corridors of power. All of them organically came together, because they realize that individually, they don’t matter to the State.

Perhaps it is because most of the protestors belonged to marginalized groups, with low social status, limited economic resources, and no political power, that they were perceived as threatening and uncivil by the State, public and mainstream media.

These are people with no structural leverage over institutions of power, so they have to collectivize and resort to extraordinary measures to articulate their demands. This is how direct democracy works for such citizens, which is why the fundamental right to civil protests and assemblies is guaranteed by the Indian Constitution.

Why do they have to inconvenience others to protest?

How do people with no political power register their voice with the State? When it cannot be done by asking politely, or following the rules set by the very institutions that have failed them, it must be done in a disruptive manner that pulls attention to the issues at hand. It is easy to hector protestors to not disturb the status quo and restrict their protests to areas designated for protests by the State, but when the status quo is threatening to upend our Constitution, and the State is guaranteed to ignore protests at designated zones, then some citizens, in their minds, are left with no choice but to challenge and actively shake the status quo. Protesting peacefully is a fundamental right, not an exhibition or a performance, and to that extent citizens must not be required to seek to seek permission from the State to imminently exercise their fundamental rights.

Civil disobedience has to inconvenience the rest of public for it to take notice of its problems. According to Mr. Benjamin Jealous, former president of the National Association for the Advancement of Colored People in the USA, blocking highways is legitimate tactic for activists “who feel like they have no other way to get their community and the world to stop and take notice of what’s happened.”

Such obstruction inconveniences commuters; it may even anger and upset them. At the same time, it will draw their attention to what is ailing some of their fellow citizens and national community members.

If the protestors had another way of getting our political leaders to listen to their demands instead of protesting, they would surely take it. They would certainly not want to inconvenience anyone or make anyone’s life worse, any more than they would want to spend their time doing anything other than standing or sitting or walking for hours in the open, bearing the heat or cold for hours at end, shouting themselves hoarse every single day.

Yet, the unfortunate truth is that policymakers are more likely to act when lives are disrupted, and engage with the protestors in order to placate them, persuade them to leave and thereby appease the angered, inconvenienced public. If protestors obediently demonstrate at a place designated for them by the State, without disrupting the status quo, then no one, neither the State nor the public, is likely to pay them any attention.

If history of the advancement of society and human rights has taught us something, it is that meaningful social change is usually fought for and hard-won through direct action and peaceful protests by ordinary people (some such instances in modern Indian history shall be discussed in the next part). Such protests, especially those that are held without the State’s permission and those that end up blocking public ways, are usually unpopular and polarizing at that time.

However, with the benefit of hindsight, such events are remembered differently, and far more generously by posterity. The participants in these demonstration, sometimes villainized in their time, the sort surreptitiously referred to as “apparent weaknesses’ and “fair share of chinks” in the judgment, are always on the right side of history and of morality, and their disruption is necessary.

Criticism of protestors comes from a place of privilege

The judgment, let us recollect, came in response to a petition originally filed before the Delhi High Court requesting for a direction to be issued that public roads could not be encroached upon in the manner as the Shaheen Bagh protest had, resulting in the closure of the Kalindi Kunj-Shaheen Bagh stretch, including the Okhla underpass.

Now, it goes without saying that the closure of a key arterial road for over three months is bound to have inconvenienced thousands of commuters (even though, as stated in the previous part, this inconvenience was exacerbated by the Delhi and Uttar Pradesh Polices’ decision to block other alternate routes). That some people are more concerned with blocked traffic than the violation of the basic structure of the Constitution of India is one of reasons underpinning the protest in the first place.

Notice, then, that almost all such people who respond to protests, not by engaging on the actual issue, but by debating on the appropriate or permissible ways of protesting, enjoy socio-political, economic or majoritarian privilege. Such people rest assured in the knowledge that the state machinery will never turn against them.

They are urged to acknowledge and recognize that the fact that they are not personally being affected by whatever it is that the demonstrators are protesting about is an indicator of their privilege. Once they identify their privilege, they ought to use it to direct their anger about the disruption at the State, and use their privilege to persuade the State to end the conditions that have created the unrest in the first place.

Regardless of what we personally think about the idea of protest or the particular issue being protested about, it is important to keep two things in mind before reacting to the protest: A. Peaceful protest is a constitutionally-guaranteed fundamental right, and B. Protestors are fellow citizens, and ordinary people who are trying their best to make their lives and the world around them incrementally better. Calls for civility, politeness and tranquility are tone-deaf, and serve to silence these fellow citizens by changing the subject, be it on social media posts, in newspaper columns, in political campaign speeches, or in a Supreme Court judgment.

Read the first part here.

Vineet Bhalla is a Delhi-based lawyer.