Didn’t Supreme Court miss something in Shaheen Bagh verdict?

Anti-CAA Protesters at Shahen Bagh, New Delhi.
Anti-CAA Protesters at Shahen Bagh, New Delhi.

The verdict of the apex court in a petition filed by BJP MLA Nand Kishore Garg has mostly focused on the constitutional and administrative aspects of the last winter’s Shaheen Bagh sit-down agitation that had caused great inconvenience to the public in a crowded part of Indian capital for a long time. The sit-down strike ended in March and the verdict has come seven months later. The long time gap is reflective of rather low priority with which the apex court treated the matter.

The court verdict has not touched on the political and social parameters inherent in the case obviously because the petitioner had not made any direct reference to those areas in his petition. The argument of the petitioner was as this: “It is disappointing that the state machinery is muted and a silent spectator to hooliganism and vandalism of the protesters who are threatening the existential efficacy of the democracy and the rule of law and had already taken the law and order situation in their hand.” This was the first part of the petition and in the second part the petitioner had urgently approached the court that public places must not be allowed to be abused and misused for ulterior and mala fide purposes such as staging a protest against the constitutional amendment in the heart of the capital city and thereby causing incalculable hardships and difficulties to the common people.” The first part of this sentence is loaded with political undertones which the apex court has not taken cognizance of. Hardships and difficulties to common people are the fallout of certain activity by the specific people. The court has addressed the fallout and not the source of the hardship.

Those not disposed to examine the court verdict critically will argue that the court has responded to the plea of the applicant and decreed that public places are not to be used for protest rallies. Therefore, the Supreme Court verdict remains confined to law and order aspect and the issue of causing public inconvenience only. In simpler language, the verdict conveys that it is an administrative matter. There are clear rules and regulations set forth how a democratic state is expected to deal with such situations.

In the larger perspective, one may say that the government has failed to take recourse to the established law of the land in handling the situation in Shaheen Bagh, and as mildly hinted at by the court verdict has it tried to hide behind the court for its inactivity. This is precisely what the court has meant by the comment “Authorities have to act on their own and cannot hide behind courts.” The Supreme Court has censured the government is mild and polite words.

But it has to be noted that the Supreme Court has not reacted to the plea of the petition that “hooliganism and vandalism of the protesters (of Shaheen Bagh) are threatening the existential efficacy of the democracy and the rule of law and had already taken the law and order situation in their hand.” A serious charge of “threat to the existential efficacy of the democracy and the rule of law” has been very conveniently overlooked. A deeper and impartial analysis of the incident should have been attempted to arrive at the crux of the issue.

The apex court of India enjoys supreme powers because of the democratic dispensation of our country. But when there is a petition before it alleging that an existential threat has been posted to the efficacy of democracy and the rule of law in the country, the Supreme Court is obliged to examine whether there is a threat to democracy or not. In either case, it has to justify its ruling. The Supreme Court has simply brushed the matter aside.

Who is threatening democracy and why and how is the crucial issue that arises from the contents of the petition? The least that the Honorable Court could have done was to ask the petitioner to elucidate the charge of threat to democracy and ascertain how the “state machinery was muted and a silent spectator to hooliganism and vandalism of the protesters.” No elucidation is not reflected in its verdict.

The narrative becomes more intricate when we find that the lockdown was implemented by a particular community in a particular area with particular geography and demography. It is not saying too much that the method and manner in which the protest sit down was conducted wore communal complexion. There has been a protest against CAA and domicile rule in some more parts of the country but the protests at Shaheen Bagh resembled the pattern of protests simultaneously held at a couple of Muslim majority towns in the country. It is also worth noting that the entire protest activity was meticulously planned and carried out through agents thoroughly briefed beforehand. For example, anti-national and communal slogans were raised under the banner of the national flag which meant the abuse of the national icon.

The government has now the report of the inquiry commission on the Shaheen Bagh incident. The report is not publicized obviously because of the finger of responsibility points towards a particular community. It is also said that collaborators had travelled to Shaheen Bagh from as far as Kolkata and Trivandrum. Antecedents of some of these collaborators are known to the intelligence authorities. What had brought them to Shaheen Bagh and what was the mission they were assigned and by who? The court verdict does speak of the responsibility of the government in curbing the illegal protest but it does not reprimand the Delhi government for its failure in controlling the situation which was reported to have been soft paddling with the miscreants.

What is more surprising is that the Supreme Court has not taken cognizance of the type of slogans that were raised by the protestors. Moreover, how the media was not allowed by the protestors to enter the cordoned-off area and talk to those who were on sit down strike speaks a lot about the intentions of the protestors. If they were genuinely protesting they would have allowed the media to perform its normal role so that their case would receive a national response.

The fact of the matter is that a widespread anti-national movement by the radicals with roots outside India has been behind the Shaheen Bagh agitation. The agitation was meticulously planned. The women were particularly motivated to leave their homes and kitchens and enjoy the privileged biryani that was served to the sitting mobs for nearly two months. Who funded their catering service, how did they abandon their homes and the daily chores of life and felt relaxed and comfortable in a state of prolonged protest are some of the intriguing questions that ask for an answer.

Finally, the threat to the efficacy of the democratic dispensation lies in mobs violating the law passed by the parliament through due process and the state government choosing to become a silent spectator to the scenario till law and order are taken by the mobs in their hand. The civil society has a right to dispassionately and objectively debate the verdict of the Supreme Court on Shaheen Bagh incident.

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