A Catch and Many Ironies in Supreme Court’s Shaheen Bagh Order

In this era of utter disdain for dissent, it was remarkable of the Supreme Court to recognise the right of citizens to protest in its order to constitute a three-member committee to negotiate with the protesters at Shaheen Bagh to relocate to another site. This was the reason why the Supreme Court’s order was widely welcomed.

But there is now a belated realisation about a catch inherent in the Supreme Court’s order. The catch springs from the Supreme Court’s order defining the end-goal of the committee—it has the task of persuading the protesters of Shaheen Bagh to evacuate the road where they have been sitting for more than 60 days. 

There are no ifs and buts here. The committee cannot offer any guarantee to Shaheen Bagh that its demand for reversal of the new policy on determining citizenship will be withdrawn or even re-looked. This has been Shaheen Bagh’s precondition for evacuating the road they have occupied.

The order, in a way, traps the protesters of Shaheen Bagh in their own rhetoric.  For two months now, they have spoken of the constitutional principle prohibiting the Indian state from discriminating against a group of citizens on the ground of religion, among others. They have railed against religion-based citizenship. They have, as have citizens elsewhere in the country, read out the Preamble of the Constitution, in a show of affirming their faith in it.

Can they now refuse to spurn the committee’s bidding, at the behest of the Supreme Court, to shift to another site of protest? After all, the same Constitution, to which they have sung paeans, binds all citizens to adhere to the orders and verdicts of the Supreme Court, which is charged with the responsibility of testing the constitutionality of any legislative enactment. Their refusal to shift will invite the charge of hypocrisy.

In appointing the committee to negotiate with the Shaheen Bagh protesters, the Supreme Court has taken upon itself an executive role, as lawyer Kaleeswaram Raj has rightly argued. It is the executive’s responsibility to negotiate with a group of citizens to redress their grievances and wean them away from the path of protest and confrontation.

Shaheen Bagh, for over two months, has been saying it will not call off its protest until the discriminatory Citizenship Amendment Act is withdrawn, the exercise to update the National Population Register is, at least, suspended, and guarantees given not to prepare the National Register of Indian Citizens.

Let alone allay Shaheen Bagh’s fear, the Union government has sought to heighten it, as was palpable in the Bharatiya Janata Party’s campaign during the Delhi Assembly elections. For instance, Home Minister Amit Shah, the very person who should have overseen any negotiations with Shaheen Bagh, demonised the protesters. His subordinates even sought to instigate violence against them.  

On the face of it, the Supreme Court’s decision to step into the vacuum created by the government’s adamant refusal to negotiate with Shaheen Bagh is of some relief. Yet it is not—the apex court cannot meet the demands of Shaheen Bagh regarding the CAA-NPR-NRIC triad. That is in the realm of the executive, although the Supreme Court can invoke Art 142 of the Constitution to pass any order for “doing complete justice.”

There are multiple ironies inherent in the Supreme Court stepping into the vacuum created by the Union government.

For instance, the protesters at Shaheen Bagh would have packed up and left had the Supreme Court stayed the CAA, in late January, when it heard about 140 petitions challenging its constitutional validity. This had been the plea of senior lawyers Abhishek Singhvi, who pointed out that the Uttar Pradesh government had initiated the implementation of the CAA even without the rules for it being framed. 

Singhvi told the three-member bench, headed by Chief Justice of India SA Bobde, “Without any rules being framed, 40 lakh people have been marked doubtful [citizens]. Their right to vote will be lost… Kindly stay the process… This will prevent a lot of chaos and insecurity.” The Supreme Court did not.

The Supreme Court, generally, does not stay laws as it follows the doctrine of presumption of constitutionality, which means the judiciary presumes that the executive has adhered to the Constitution in enacting a law or passing an order. 

Yet the Supreme Court set aside this doctrine to stay the VP Singh government’s decision to implement, in 1990, the Mandal report, which had recommended 27% reservation for the Other Backward Classes. Then the streets in north India had bristled with elite-caste protesters, some of whom, tragically, immolated themselves. The Supreme Court’s stay of the Mandal decision saw the streets slip into quietude.

Yet the presumption of constitutionality was adhered to when the Modi government introduced, in 1990, a 10% reservation for the Economically Weaker Section. Nor was the Maharashtra government’s decision, taken in 2018, to grant quota to the Marathas. About these orders, K Chandru, a former judge of the Madras High Court, was scathingly critical.

In an interview to this writer, Chandru said, “…once students are admitted to educational institutions and jobs are filled up under the Maratha quota, what will happen to people who are already on the gaddi [government posts and seats in educational institutions] if the Supreme Court’s final decision is against the two government orders?” 

Might not a question be asked: what will happen to those whose Indian nationality is marked doubtful and also denied the protective shield of the CAA, which seeks to grant and expedite citizenship for those who migrated, because of religious persecution, from Bangladesh, Pakistan, and Afghanistan? 

This is not an unfounded fear. The Aadhaar authorities recently served a notice on a Muslim resident, in Hyderabad, to present documents to prove his citizenship against an allegation that he had secured the Aadhaar card by submitting false documents, and that he was an illegal immigrant. 

To the list of ironies, add the Supreme Court’s judgement on the central government’s acquisition of land in Ayodhya, after the Babri masjid was demolished, on 6 December 1992, and in its place a makeshift temple came up there. The Supreme Court ruled that the prevailing status quo must be observed, in effect rewarding those who had demolished the mosque.

The irony of that judgement continues to echo today. The government has drafted into the trust, constituted to oversee the construction of the Ram temple, Nritya Gopal Das and Champat Rai Bansal, both accused in the Babri masjid demolition case, which continues to languish in a trail court.

There is no denying that the protest at Shaheen Bagh has caused traffic snarls and brought hardship to commuters in Delhi, which has prompted the Supreme Court to appoint the committee to reconcile the right to protest with the necessity of maintaining public order. They must therefore shift to another site and allow the road to be opened for the smooth flow of traffic.

Yet the Supreme Court was not particularly moved by the hardship caused by the lock-down in Kashmir, undertaken in the wake of the government reading down Art 370. It did not show alacrity in ending the disruption of the routine life in Kashmir. Seven months after the reading down of Art 370, the internet there continues to work in fits and starts, hundreds remain in jail, and a clutch of political leaders have been detained under the draconian Jammu and Kashmir Public Safety Act. 

One of the Muslim protesters at Shaheen Bagh drew an analogy to justify the agitation to Sanjay Hegde and Sadhna Ramachandran, the two lawyers who are members of the committee. She said Delhiites endured traffic snarls during the years the metro line was being constructed. They did it to have a better future. In much the same manner, Shaheen Bagh wants to protect its future.

You can say that she understands the catch inherent in the Supreme Court’s order, but not the irony marking the august institution’s attitude towards protests, nor the lack of empathy of many to her cause, because of which she and many remain on the road of tumult. 

The author is a freelance journalist. The views are personal.