In a distinct departure from recent tradition, the Supreme Court of India, the sentinel on the qui vive, has chosen to acknowledge “nation-wide protests” and address “issues that the protests have brought to the forefront”. The Supreme Court initiated suo motu proceedings into the alleged rape and murder of a trainee doctor at R G Kar Medical College and Hospital in Kolkata, thus choosing to recognise the “agitations and protests as a moment of national catharsis” and worthy of institutional response. This is an opportunity to revisit the thorny relationship that the courts, and public opinion generally, have had with widespread public protests in the recent past.
In the present case, the popular protests centre on the sexual assault and murder of a trainee doctor inside hospital premises, while she was on a long, 36-hour shift. The gruesome murder was followed, it seems, by a series of lapses and procedural breaches by the hospital and the investigating authorities. It was widely felt that there was an attempt to deflect and evade responsibility, which resulted in a public outcry. It was the brutality of the murder and, equally, the perceived obduracy of the authorities that made people angry and brought them onto the streets.
In the first hearing, the court clarified that the incident in the hospital may have been the immediate cause of the suo motu proceedings, but it intended to consider wider issues related to violence at the workplace. The court did not, however, contemplate “intersectionalities” — the point where several “margins” intersect. Life at this intersection, where several forms of discrimination and exclusion overlap, as if in a sorry Venn diagram, becomes most vulnerable. Imagine vulnerability to sexual assault and access to justice from the point of view of a woman who works in the unorganised sector and is typecast as an “illegal immigrant”, who is homeless and has a physical or mental impairment. If there were to be an assault on such a woman, how would public opinion form? Would her alleged status as an “illegal immigrant” overshadow the fact of the sexual assault and lack of any state response? Would protests to demand justice for such a person be deemed anti-national? The court, in this instance, has not included within its ambit rape on the margins and how state and society react to those instances of violence. But even in terms of the less nuanced view, which examines sexual violence in the mainstream, as a problem of all women, the court has limited itself to a particular context. It has framed issues only in relation to monitoring violence against healthcare professionals on hospital premises.
Moreover, the directions seeking to make hospitals safer for health professionals are focused on greater policing and increased surveillance. Frisking and armed guards at hospitals (or universities) is a very particular reaction to the problem of violence. Alternative responses would require more informed debates on public health spending, healthcare workers’ rights and also transparency of treatment protocols. In the event, the court has essentially taken a policy decision, preferring enhanced securitisation to other possibilities for systemic change.
However, the order has provided three other openings on related issues.
The court, on this occasion, goes beyond simply monitoring investigations and seeks to peg accountability for the alleged breaches on the principal of the hospital and on state authorities.
Second, the Supreme Court order validates the importance of media reports in a context where the protesting public cannot trust state narratives. The state’s response in the past has often been to discourage reporting from contentious protest sites, even to arrest journalists for sedition (for questioning the authority’s version of events), or for inciting violence, or even for promoting enmity between groups. A case in point is the Hathras gang rape case, where the prosecution justified the prolonged detention of some journalists because their reporting would encourage demands for resignations of state ministers and other authorities.
Finally, the most important endorsement by the court is towards the legitimacy of peaceful protests. The court said repeatedly during the hearing: “Let not the power of the state be unleashed on peaceful protestors. People [are] speaking to the media to communicate their views. Let us deal with them with a great deal of sympathy. It’s a time of national catharsis.” In the formal order, too, the fact of protests by doctors, students and civil society is recorded.
This might be our cue to attend to the present constitutional crisis, where illegal and selectively retaliatory action against demonstrators by the state has become normalised. Thus far, the courts have been ambivalent about aggravated actions by governments against protestors, which range from putting photographs and names of alleged protestors on public billboards, to demolishing their homes and businesses.
As the court cautions the state from putting its might against protestors, it might be a good time to question the forms that such state action takes: Sometimes, the state simply dismisses a cause as fake or motivated, and chooses not to engage with it (as happened with the farmers’ or wrestlers’ protests); at other times it actively delegitimises protestors as “biryani eaters”, “urban naxals” and “andolanjeevis” (as with Shaheen Bagh), and follows this up with lathi charges, arrests and prolonged criminal prosecutions.
The court has also distinguished between “protestors” and the “mob” of hecklers that came to break the protest, and has chastised the police for retreating as disruptive goons vandalised property and intimidated the protestors. This chain of events is familiar, too, and akin to vigilante mobs intimidating, threatening and sometimes attacking protestors for being “traitors”, and the police using these threats as justification to forcibly dismantle protests. Often, in the past, the police has left protestors to the mercy of such mobs, or used disproportionate force themselves, for example attacking students in their libraries and hostels, but their unkindest cut has been to blame and prosecute protestors for provoking a mob into violence. Perhaps the court’s distinction between protestors and mobs that break up protests will discourage the police from relying so often on the heckler’s veto.
The state may, in its defense, try to distinguish “good” protests and protestors from “bad” protests and protestors. The state might claim that in the latter case, protests were disruptive and not peaceful. But the court’s sympathetic treatment, in the present case, of the Indian Medical Association’s withdrawal of medical services in protest, which may be perceived as being rather disruptive, provides us space to rethink good/bad protests. It is often the state and statist media that frames them one way or the other, and public opinion is formed on that basis. It is also often the state that makes selective and unsubstantiated allegations about certain protests being in bad faith, violent or disruptive. The courts have been equivocal in their response to disproportionate state action upon protestors based on unproven allegations of violence. Public opinion has been equally uncritical. Perhaps this is an opportunity to have new jurisprudence on the law of protest – one that doesn’t judge protests as good/bad on the basis of one’s political preferences, or on the basis of the state’s dismissal of them, or even on public opinion.
Many protestors remain in jail years after the event. This order sees citizen action differently. It may open up the space for criminal cases against protest leaders to be taken up all together, suo motu, and re-examined.
The writer is a Supreme Court advocate
