01-08-2025
Religion vs dissent: Which right wins?
The Supreme Court has, through multiple judgments, affirmed the right to protest while imposing 'reasonable restrictions' on its exercise in public spaces. The Court's rationale has been that the right to protest cannot be exercised at the expense of public order, with considerations such as the smooth flow of traffic weighing on the court's mind. As the Kanwar Yatra ended this year, the Delhi Police saw a surge in complaints on traffic congestion, excessive noise and disturbances well into the night over the span of a few days. There have been reports of hooliganism, aggression and violence by the kanwariyas. In India, streets are not just for commuting: The everyday affairs of community, religion, celebration, mourning, and social life play out on them too. (ANI)
There are few legal challenges to these acts or restrictions on the Kanwar Yatra. Religious practice, the reasoning goes, must be given a longer rope. But does such accommodation on disruption of regular life in the city pass muster?
Every year, several groups of kanwariyas traverse the streets of North India. In recent years, the Kanwar Yatra has grown in both popularity and scale — large trucks are hired, food stalls set up (with QR codes displaying information on the seller's religion in some places) and roaring boomboxes announce its arrival. It may seem that the yatra has turned into an opportunity for unrestrained revelry and lawlessness. Often, the yatra seems no more about personal, pious observations, but a means of loud and disruptive assertion. By and large, the kanwariyas have a de facto immunity — actions that would normally invite the attention of law enforcement agencies are ignored and even actively permitted.
In India, streets are not just for commuting: The everyday affairs of community, religion, celebration, mourning, and social life play out on them too. But the access to this public space, and the degree to which rights can be exercised, are differentiated. Who may occupy a public space and for what purpose is neither universal nor equal.
In Mazdoor Kisan Shakti Sangathan (2018), the Supreme Court held that the rights under Articles 19(1)(a) and 19(1)(b) of protestors have to be balanced with the rights of commuters. Permission for a demonstration or public meeting should be granted keeping in view its effect on traffic, human safety, and public tranquillity. Similarly, in Himat Lal Shah (1973), the Court held that the right to a public street can be regulated so that all can enjoy that right. In the wake of protests at Shaheen Bagh against the Citizenship Amendment Act, the Supreme Court found in 2020, that the right to dissent could not be at the cost of inconvenience to commuters and authorities must take action to prevent undue encroachments and obstructions in public spaces.
In 2021, during the farmers' protests, the Supreme Court once again remarked that protests could not inconvenience the general public and lead to roads being blocked. The only time that the Kanwar Yatra has been made subject to legitimate restrictions was in 2021, when the Supreme Court took suo motu cognisance of the yatra held despite the rising cases of Covid-19.
No doubt, all sects have a right to profess and practise religion, subject to 'public order, morality and health'. The right to protest is restricted by similar considerations. Should the State then not be equally concerned by the civic inconveniences caused by religious processions, as it is by the peaceful public gathering of dissenters?
If freedom and liberty are the cornerstones of our Constitution, their equal application is its chief anchor. The popular saying 'your right to swing your wrist ends where my nose begins' must apply in equal measure to all those who lay claim to a public space.
Katyayani Suhrud and Trisha Chandran are lawyers practising in the Supreme Court of India. The views expressed are personal.
