Pros and cons of a ban on protests

Hearing a petition by a farmers’ organisation (not connected to the protests) for permission to congregate at Jantar Mantar in Delhi, a two-judge bench of the Supreme Court asked the question: Do the farmers have the right to protest against the three farm laws when the judicial challenge to them is under the court’s consideration and the matter is sub-judice?

The hon’ble judges gave a glimpse of their inner thinking when they also observed that the farmers have “strangled” Delhi for months and now have the temerity to want to come to Jantar Mantar. They have now proposed to deliberate on these issues.

Where was the need for these comments when the matter is already settled by the same court in a number of judgments? The latest was in December 2020, when the then CJI Bobde, in a decision of considerable import, pleasantly surprised us all by ruling that protest is a fundamental right, that public protests are permissible and legal provided they don’t involve violence or disturb the public order, that the court would not therefore intervene in the matter.

Circumstances have not changed since then to warrant second thoughts, except that the government itself has been trying its best to instigate violence, first at Karnal and then at Lakhimpur Kheri.

Over the last few months, some hope had been aroused that the Supreme Court had finally resolved to confront a rampaging executive and stand up more assertively to protect the constitutional rights of the citizens. Some even dared to hope that a kind of judicial Arab spring was in the air. But questions now being asked by the court on the very rationale of the farmers’ protests appear to indicate a shift in the wind, that perhaps the hopes were too premature.

A lawyer friend donned the mantle of a Devil’s Advocate and sought to justify the Court’s latest queries by posing four questions. These are questions which must also be plaguing the mind of the average citizen (not lawyers, because they have all the answers!) and therefore it would be useful to consider them.

I reproduce them below, along with my response to them:

1 If farmers have moved the Supreme Court, what is the point of continuing with the protests? The matter is sub-judice, how then can the protests continue?

The answer to this is pretty simple, but since there is no politically correct way to say it, here it goes: the protests are continuing because the farmers (like large swathes of the citizenry) have lost faith in the Supreme Court. The credibility of the court has never been lower than it has been over the last few years. This is primarily because of the perception that it is reluctant to confront the government, that all major decisions have of late gone in favour of the government, and where that is not possible the matters are simply kept in limbo.

Secondly, the protesting groups of farmers under the umbrella of the Samyukta Kisan Morcha, have not gone to the Supreme Court. Six petitions challenging the three farm laws have been filed by the Bharatiya Kisan Union, one DMK Member of Parliament, one RJD MP, the Chhattisgarkh Kisan Congress, and a couple of others, but not by the SKM.

The SKM has always maintained that the farm laws have not just legal implications but also economic, social and political dimensions and therefore the opposition to them cannot be limited to the court rooms. One doesn’t play poker with a rigged pack of cards.

Thirdly, in a democracy the courts are only one of the options available to citizens to challenge the government. A legal or constitutional challenge to an unpopular law is only the first step. Even if a law is legally sound, it still has to pass the test of acceptability by the people- legality and legitimacy are two separate concepts. The Supreme Court can decide on the first one, not the second- that is a political and social issue, between the government and the people, and it would be unwise and unconstitutional for any court to interfere in the process by banning protests. Popular legitimacy is as important as constitutional validity for any law.

2 Farmers have a choice to either approach the court or to hit the road. They cannot do both.

This in fact is the essence of the question posed by the two judge bench. But they are wrong, as Justice Madan Lokur (retired) reiterated in a recent interview to The Wire that the pendency of a petition in court does not negate the option to protest. The court itself has held, in numerous judgments, that the right to protest is a fundamental right in a democracy. It synthesizes within itself key guarantees provided in our Constitution: Article 19(1)(a)- freedom of speech and expression, Article 19(1) (b)- right to assemble peacefully, Article 21- right to protection of life and liberty.

These rights run pari passu with Article 32- the right to constitutional remedy, and the two are not mutually exclusive, they co-exist, they can be invoked separately or together, in sequence or simultaneously.

In my view, the doctrine which the bench appears to be postulating is dangerous for democracy, as an editorial in The Tribune on 7th October has pointed out. In a democracy the streets are as important as the courts as arenas for opposing a government, especially so when Parliament has been emasculated. Any attempt to put a gag order on street protests by using the doctrine of “ sub-judice” will be anti-democratic and unconstitutional.

All it would take to “strangulate” (the court’s favourite word) any opposition to government policies would be one fixed/ contrived petition in the court for or against the policy. And this is not speculation: it is already happening with this government, including on the farm laws. The Supreme Court should not make the mistake of believing that it is the only guardian of democracy--the people on the streets often make better sentinels.

3 The farm laws have been stayed by the SC, so why continue with the protests?

Because farmers do not trust this government either to keep its word or to respect judicial orders. Remember the Rafale case where it lied to the court about the CAG having presented its audit report to Parliament? Or the Aadhaar judgment prohibiting the linking of Aadhaar to non-welfare schemes, which is being violated on a daily basis with impunity? Or the more recent Pegasus issue, where the government refused to file an affidavit even when asked by the court to do so? Moreover, a stay or injunction is an interim and temporary order and can be lifted at any time, it does not provide a permanent solution.

Secondly, if the SC finally decides that the laws are legal and constitutional, the stay would then be automatically vacated and the laws would become effective. The farmers would then be left in the lurch, having observed the stay and foregone their right to protest. It’d be impossible for them to rekindle the momentum the protests have acquired.

Finally, public protests are a means of spreading the message throughout the country, in the absence of the financial resources and lapdog media which the government has at its command to broadcast propaganda and misinformation. Suspending the protests would enable the government to quietly implement the three laws in an insidious manner, as it has been doing with Aadhaar and even with CAA. The status quo would favour only the government at the cost of the farmers.

4 The Supreme Court can fast track hearings so why not wait for the decision?

The constitutional challenges to the farm laws have been pending for almost a year now, with no end in sight. Even the report of the Expert Committee set up by the court was submitted a few months back but has not been made public for some inexplicable reason, let alone taken up for consideration.

This appears to have become a pattern now whenever some contentious matter concerning the executive is involved. Other important cases have also been pending with the court for years--Electoral Bonds, abrogation of Article 370, The Kashmir Reorganisation Act, CAA, and NRC, UAPA--even applications for urgent hearing have not speeded up their disposal. Once again, the status quo suits the government.

I had earlier argued that the Supreme Court should concern itself with only the legal challenges to the three farm laws, and should keep away from the subject of the protests themselves. The latter are not within its domain, nor does it have the expertise or training to adjudicate on them.

The protests are a politico-socio-economic movement to be resolved either in Parliament or in the country’s public spaces, not in courtrooms. I stand by this position with even greater conviction today. It is not the job of the judiciary to pull the executive’s chestnuts out of the fire.

One swallow does not make a summer, but it can at least be a harbinger of the spring we are all waiting for.

(From the retired IAS officer’s blog ‘View From Greater Kailash’. Views are personal)