Introduction
The Supreme Court’s judgement in Amit Sahni v. Commissioner of Police (Amit Sahni) was always going to be tested sooner rather than later. The protests by farmers in Punjab and other places across India have, again, brought into focus the contours of the right of assembly. Was the Court right in circumscribing this important right by making it contingent upon the inconvenience caused to commuters? This post will argue that the judgement is contrary to human rights law. Specifically, the judgement does not conform to international human rights standards on the right of peaceful assembly, as recognized in Article 21 of the International Covenant on Civil and Political Rights (ICCPR).
Background
Briefly, the case arose out of a petition filed against the blockage of a crucial road in Delhi. The road was occupied by protestors in the Shaheen Bagh area, in opposition to the Citizenship (Amendment) Act, 2019. The protestors had erected tents on the road, creating a semi-permanent protest site where protests went on for weeks. Subsequently, Covid-19 measures forced the protestors to disperse. However, the Court in an interim order had noted that the larger question of ‘where and how’ protests can take place needed deliberation. In its judgement, the Court noted that considerable inconvenience was caused to commuters as a result of the protest, and that protests in public spaces cannot go on indefinitely. It also held that protests must be confined to areas designated for those particular purposes.
Analysis
First, human rights law requires that any restriction on the right of assembly must be necessary in a democratic society. This means that restrictions imposed on the right of assembly must be supported by relevant reasons to justify the necessity of the restriction. Further, the principle of proportionality demands that any limitation imposed must be the least restrictive measure possible. The judgement, however, neither provides a detailed justification for imposing limitations on this right nor tests the proportionality of the restrictions it imposed. Instead, the Court anchors its reasoning on the inconvenience caused to commuters by the road blockage.
The Court sought to base its decision on the ground of public order, relying on an earlier decision in Himat Lal K. Shah v. Commissioner of Police. However, ‘public order’ is not equivalent to a mere law and order situation. For instance, in Lee v. The Republic of Korea, the Human Rights Committee (HRC) noted that public order considerations would entail examining a ‘real threat’ to the democratic order. More recently, the Ugandan Constitutional Court has held that mere disruptions in public life cannot be considered a ground of public disorder. The Human Rights Committee’s observations in GC 37 are especially pertinent in this regard. Paragraph 44 states that since peaceful assemblies can be inherently disruptive, prohibitions of public disorder in national laws should not be used to restrict peaceful assemblies. The inconvenience caused to commuters as a result of an assembly does not reach the level of a real threat to public order. Further, states are under a positive obligation to facilitate the right of assembly in such cases by finding alternate means, including diverting traffic and similar measures. On this basis, therefore, the inconvenience argument is simply not enough to fulfil the requirements of a public order restriction.
Second, the Court’s reasoning in Amit Sahni is underpinned by the assumption that assemblies can only be temporary. This view excludes long-term sit-ins and extended demonstrations from the protective scope of the right of assembly. At the outset, it can be argued that such over-broad restrictions are disproportionate per se, because they foreclose any consideration of the peculiar circumstances of future assemblies. Consider, for example, the farmer’s protests which might require a different approach given the particular circumstances of the situation. Professor Michael Hamilton, in a recent paper, points out that temporariness is not a distinctive characteristic of ‘assembly’, and that temporariness is inherently difficult to measure. That is, it is difficult to pin-point precisely the temporal range of a lawful assembly. Any court would find it difficult to ascertain the lawfulness of an assembly based on the time it took for the assembly to disperse. According to Hamilton, long-term assemblies ought to be afforded protection as they are often meant to serve as a constant reminder to those in power.
Moreover, while earlier definitions of ‘assembly’—such as the one by Manfred Nowak—have used ‘temporary’, the definition in GC 37 does not. The Joint Report of three United Nations Special Rapporteurs on the proper management of assemblies notes that an assembly includes ‘extended sit-ins and occupy-style protests’. The guidelines provided by the African Commission on Human and Peoples’ Rights (ACHPR) also do not describe an assembly as ‘temporary’. This would indicate that sit-ins and occupy-style protests fall within the scope of Article 21 of the ICCPR.
Traffic disruptions and Designated Places
The traffic disruption argument is used quite often in the context of protests, especially where the participants of the assembly are unpopular. Human rights law mandates that where a balance is sought to be struck between the rights of the protestors and the interests of the commuters, it must be done in order to aid the right rather than to restrict it. And in every case where traffic disruptions are used as a ground for disallowing protests, it must be shown that there were no alternate means, available, that would have allowed the assembly to take place. The Court in Amit Sahni fails to do this. Justice Aharon Barak of the Israeli Supreme Court puts it eloquently thus: “Just as my right to demonstrate on city streets is limited by the right of free passage possessed by my fellow, my fellow’s right of free passage is restricted by my right to hold an assembly or a procession“. In the same case, Justice Landau warns us that if such considerations are accepted as legitimate, it would practically end the right to demonstrate because every protest is expected to cause some disturbance.
Also, for the right of assembly to be meaningful, participants should be allowed to choose a place within the ‘sight and sound’ of the targeted audience. Here, the Court held that protests must take place ‘only in designated areas’ without examining whether these designated areas would accord with the ‘sight and sound’ principle. The Court essentially left it to the authorities to determine who gets to demonstrate and where. Further, designated areas must not mean a place on the outskirts of the city, where the message of the demonstrators may not be effectively communicated. More generally, people often possess limited means of effectively communicating any particular message to the government. For this reason also, the exact extent of spatial restrictions needs to be precisely defined. The historically difficult relationship between protestors and the state should also be taken into account before prescribing such measures. As the Bonavero Institute’s report on the right of assembly points out, limiting protests to only designated places may invite ‘undue risk of reprisals and surveillance’ from the government.
Conclusion
At bottom, what is at stake, is a right central to constitutional democracy—the right to freely assemble. The South African Constitutional Court has aptly noted that “the right of assembly allows ordinary people to meaningfully contribute to the constitutional objective of advancing human rights and freedoms“. The Supreme Court of India should, therefore, take any pleas that arise out of the farmer’s protests as an opportunity to reconsider its decision in Amit Sahni. A right as important as the right of assembly ought to rest on a firmer basis and not depend on the smooth functioning of vehicular traffic.
(This post is authored by Adnan Yousuf. Adnan is a final year law student at the Faculty of Law, Jamia Millia Islamia.)
Cite As: Adnan Yousuf ‘The Supreme Court’s Judgement in Amit Sahni Case and International Human Rights Law’, (The Contemporary Law Forum, 29th December, 2020) <https://tclf.in/2020/12/29/the-supreme-courts-judgement-in-amit-sahni-case-and-international-human-rights-law> date of access.