Judicial Review and Public Protests in India

Synopsis: The timely judicial review of the constitutional validity of laws would have reduced the number of protests in India.

Background:

• In the Shaheen Bagh protest case, in 2020, SC held that there is no absolute right to protest and public spaces cannot be occupied and that too indefinitely. It affects the right of the general public to move freely without hindrance.
• Recently, the supreme court has refused to review its earlier verdict on the Shaheen Bagh protest.

Why the SC decisions on protests are seen as arbitrary?

• First, Many protests took place because laws passed by the parliament (economic reservation, CAA, Farm laws) were not subject to timely Judicial review.
  • • Almost all the major protests that happened recently in India, involved legal and constitutional issues. The court could not deliver the required immediate and effective adjudication over the constitutional validity of bills.
    • If the courts have delivered a timely judgment on the validity of the laws the protests could have been probably reduced.
• Second, the court is attempting to mediate the issue rather than providing a solution to that.
  • • For example, Shaheen Bagh protest case verdict. The court balanced its verdict by upholding the right to peaceful protest while stating public spaces cannot be occupied indefinitely.

Why SC’s refusal to review its earlier judgment is not right?

The court’s judgment was against the indefinite occupation of public space in Shaheen Bagh protest case. It provides a licence to the police to commit atrocities against the legitimate protest in the name of the occupation.

During the agitations against farm laws also, the protesters had to face repressive actions of the state. 

• Protesters prosecuted by the state on serious charges of sedition and terrorism.
• Not only the protesters but also their supporters, including comedians and journalists were prosecuted. For example, Disha Ravi climate activist recently charged for ‘conspiracy against the government’.
• Protesters were denied the freedoms of expression and peaceful association under Article 19 of the Constitution.

SCs globally are seen as guardians of the right to dissent. But it has not provided the protesters with the required support against the state action.

What is the way forward?

• A fair and effective justice mechanism on constitutional matters can reduce the protest on the streets.
  • • For example, according to Sociologist Luke Martell the radical green movement in Britain was at a lower scale when compared with other parts of Western Europe.
    • This is because the “public enquiry system” in the United Kingdom is good. It “process ecological demands, and integrate them into the political system.
    • This minimised the radicalization of the movement arising out of exclusion and marginalisation.
• The spirit of judgment in Himat Lal K. Shah vs Commissioner of Police (1972) should be upheld.
  • • The Court struck down the rules framed by the Ahmedabad Police Commissioner because it conferred arbitrary power on the police officers in the matter of public meetings.
    • Justice Kuttyil Kurien Mathew, in Himat Lal K. Shah, explained that “freedom of assembly is an essential element of a democratic system” and that “the public streets are the ‘natural’ places for expression of opinion and dissemination of ideas”.