The Supreme Court of India, Right to Protest and the Indefinite Occupation of Public Space

[Pranay Lekhi is a Legal Advisor – Not Admitted UK – at Allen & Overy, London. He graduated first-class from the University of Cambridge with a specialization in International Law. Views are strictly personal.]

On October 7 2020, the Supreme Court of India held that public places cannot be occupied indefinitely while exercising the right to peacefully protest (para 17). The judgement has faced criticismon the basis that it disregards the relevant principles of international law. However, in this post it will be argued that international law provides articulate limitations to the right to peaceful protest, including providing a margin of appreciation to States to balance the right with general public convenience.

While analyzing the applicable principles of international law to the right to protest, it is important to understand the nature of the protest that was before the Court for adjudication. Protests against the Indian Citizenship Amendment Act, 2019 began in December 2019 and ended in March 2020 because of the intervention of the COVID-19 pandemic. Throughout it duration, the protestors encroached upon a busy arterial road by creating facilities such as “a library, a large model of the India Gate and a big metallic three-dimensional map of India located upon a very strong metal scaffolding…anchored by heavy stones” (para 10) in addition to having over 300 people as late as March 2020. In this context it was argued on behalf of the protestors that there existed an absolute right to peaceful protest, both in terms of space and numbers (para 13).Conversely, the Court stated that in the case before it, it attempted to reach a conclusion by balancing the rights of protestors with that of commuters (para 16). This response conforms to principles of international law.

At the outset, it must be unequivocally emphasized that the rights to freedom of assembly are protected under Article 20 of the UDHR and Articles 21 and 22 of the ICCPR. As noted by the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association in 2016 – these rights also include a right to use public spaces for protests (para 32). However, the Special Rapporteur is swift to circumscribe these rights by stating that international law allows for restrictions on the basis of inter alia “the protection of the rights and freedom of others” besides being “lawful, necessary and proportionate to the aim pursued” (para 29). Thus, while assemblies remain an equally legitimate use of public space as movement of vehicles and pedestrian traffic, the right is far from absolute and subject to proportional restrictions.

The test of legality is unquestioned. The Indian Constitution recognizes restrictions to the freedom of speech and assembly in Articles 19(2) and 19(3) respectively. Further, in deeming whether a particular restriction is “necessary”, States are provided with a margin of appreciation in international law as repeatedly confirmed by the jurisprudence of the European Court of Human Rights since the case of Handyside v. UK (para 48). The question that remains is one of proportionality, which must be answered on a case-by-case basis.

In human rights law, any derogation must be limited to the extent strictly required by the exigencies of the situation. As demonstrated by UNHRC General Comment 31, any restrictions on the rights in the ICCPR must be “proportionate to the pursuance legitimate aims” (para 6). The legitimate aim that the Supreme Court of India identified was the protection of the freedom of commuters. In this context, it is also relevant to note Security Council Resolution 2341, which emphasizes the importance of a State ensuring the reliability of its critical infrastructure. The EU defines critical infrastructure as “an asset, system or part thereof” that is “essential for the maintenance of vital societal functions, health, safety, security, economic or social well-being of people” and its disruption would have an impact “as a result of the failure to maintain those functions” (art 2). Across jurisdictions, roads and transportations form an essential part of a State’s critical infrastructure. Accordingly, international law puts a duty on States to ensure there is no disproportionate blockade of its transport systems.

Thus, it is important to note that the Supreme Court of India acknowledged that the democratic polity come with a right to protest and express dissent (para 16). However, it was equally conscious of the consequences of indefinite occupations of public ways everywhere in emulation of the protests that the Court was adjudicating upon (para 8). Further, the Supreme Court of India did not suggest a blanket ban on the occupation of public areas. On the contrary, it reflected exclusively on the nature of the protest it had before it for adjudication. Therefore, its adjudication that the occupation of public ways and public spaces “in such a manner and that too indefinitely” is not within the legitimate right to protest and is subject to restrictions (para 17).

With the world having previously witnessed a range of “Occupy” protests with protests on Bay Street in Toronto and Wall Street in New York, the adjudication of the Supreme Court of India has revived focus on the privatization of public spaces while exercising a right to protest. Although the judgement of the Supreme Court of India appears in conformity with principles of international law, it would be important to see where this debate progresses in the context of indefinite occupation of public spaces.