In a significant victory for free speech, the Supreme Court has ruled against a total ban of assemblies at the traditional stamping grounds of protest in the capital — Jantar Mantar and Boat Club. The ban, imposed on Boat Club several years ago and in Jantar Mantar by the National Green Tribunal last October, had effectively muted the voice of protest. From a distance, it could not be as audible in the corridors of power in the heart of Delhi. The court has struck a judicious balance between the right of local residents not to be disturbed, and that of protesters to be heard. The commissioner of police is to draw up guidelines for legitimate protest in the next two months.
The court has supported protest as a constituent of the right to free speech, and an essential feature of participatory democracy. It is the last word, the mode of communication which remains when all others have been exhausted. And yet, a body established by an Act of Parliament had restricted the right to protest, and the Supreme Court was required to provide relief. While the court’s intervention is enormously welcome, it also underlines the burden on it. This is only one of a staggering gamut of matters that the court addresses, when other institutions fail to step up to them. While lifting curbs on the right to protest, for instance, the court is also pondering Section 377 of the Indian Penal Code, since Parliament has abdicated its responsibility here.
Historically, the court has been a crusader on behalf of the people, including and especially the marginalised and oppressed, the dissenters and protesters. Dispensing with the niceties of locus standi, and allowing anyone with knowledge of illegal detention to file a petition, was a crucial intervention in the application of habeas corpus. From the tragedy of P Rajan, who died in custody during the Emergency without ever seeing a magistrate, to the Panthers Party successfully filing an application on behalf of the imprisoned Anna Hazare, a vast distance has been traversed. Public interest litigation has proved to be a powerful alternative to the class action suit in other countries. It does not require an affected party to move court. An observer of injustice suffices, or the court itself, and the court only needs to be convinced that the people are affected. The very principles of green law, crucial for public health, evolved in the course of cases fought out in the Supreme Court. Without its innovations and interventions in the public interest and for expanding the space for freedoms — in the case of Jantar Mantar and Boat Club, quite literally so — India would have been a lesser nation.