Author: Chandramani Bhaskar, ILS Law College, Pune
To the Point
The right to protest is not expressly named as a separate fundamental right in the Constitution of India. It emerges, however, from the combined operation of Article 19(1)(a), which protects freedom of speech and expression, and Article 19(1)(b), which protects the right to assemble peaceably and without arms. The constitutional protection is subject to the limitations contained in Articles 19(2) and 19(3). Accordingly, the State may regulate protest where the restriction is authorised by law, pursues a constitutionally permissible objective, and remains reasonable in relation to the harm sought to be prevented.
The central constitutional question is therefore not whether citizens possess a right to protest—they do, when protest takes the constitutionally protected form of peaceful expression and assembly—but where legitimate regulation ends and unconstitutional suppression begins. Indian jurisprudence demonstrates that the answer depends upon the nature of the protest, the actual threat to public order, the place and duration of the demonstration, and the effect of the protest on the rights of others.
The contemporary legal position is best understood as a constitutional balance: peaceful dissent must be facilitated, but violence, indefinite obstruction, and disproportionate interference with public rights may legitimately attract regulation. The challenge is to ensure that administrative powers are not exercised so broadly that lawful dissent is chilled before it can be heard.
Use of Legal Jargon
Peaceful assembly: A gathering protected by Article 19(1)(b) when it is conducted peaceably and without arms. The constitutional protection does not extend to violent or armed assemblies.
Reasonable restriction: A constitutionally permissible limitation on a fundamental right. The restriction must have a legitimate statutory basis and bear a rational and proportionate relationship to the constitutionally recognised objective.
Prior restraint: A governmental measure that prevents or limits expression or assembly before the protected activity occurs. In the context of protest, advance prohibitory orders or licensing systems may raise prior-restraint concerns where they confer unguided discretion upon authorities.
Doctrine of proportionality: A structured method of reviewing restrictions on fundamental rights. It requires the Court to examine whether the measure pursues a legitimate objective, is suitable to achieve that objective, is necessary in the circumstances, and maintains an appropriate balance between the right and the competing public interest.
Public order: A constitutional ground for restricting speech and assembly that concerns disturbances affecting the community or public at large. It is conceptually distinct from every breach of ordinary law and order and from threats to the security of the State.
Preventive jurisdiction: The authority of the executive magistracy to act before an apprehended danger materialises. Under the Bharatiya Nagarik Suraksha Sanhita, 2023, Section 163 now provides the power to issue orders in urgent cases of nuisance or apprehended danger, corresponding broadly to the former Section 144 of the Code of Criminal Procedure, 1973.
The Proof
The constitutional foundation begins with the text of Article 19. Article 19(1)(a) guarantees freedom of speech and expression, while Article 19(1)(b) guarantees the right to assemble peaceably and without arms. Article 19(2) permits reasonable restrictions on speech on specified grounds, including public order, while Article 19(3) permits reasonable restrictions on peaceful assembly in the interests of the sovereignty and integrity of India and public order.
The distinction is significant. Protest is ordinarily a composite constitutional activity: it may involve speech, slogans, placards, processions, meetings, and collective presence. Kameshwar Prasad v. State of Bihar recognised that a demonstration may constitute an expression of opinion and may fall within Articles 19(1)(a) and 19(1)(b). The Court nevertheless distinguished peaceful demonstrations from violent or disorderly conduct. Thus, constitutional protection attaches to the lawful character of the protest rather than to every act committed under the label of protest.
The power of the State to regulate public demonstrations is equally recognised. In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, the Supreme Court accepted that public meetings and processions may be regulated to preserve public order and protect the rights of other citizens. At the same time, regulatory power cannot become an unguided licensing power through which a constitutional freedom is transformed into a privilege dependent upon administrative discretion.
The requirement of proportionality becomes particularly important when preventive powers are invoked. Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 permits an Executive Magistrate to issue urgent orders in cases of nuisance or apprehended danger. The existence of such power does not dispense with constitutional scrutiny. The order must remain connected to the danger apprehended, must not be broader than necessary, and must be capable of justification by concrete circumstances rather than generalised apprehension.
The Supreme Court’s decision in In re: Ramlila Maidan Incident demonstrates the other side of the constitutional equation. The State has a duty to maintain public order, but that duty does not authorise disproportionate force against peaceful demonstrators. The legality of police intervention depends not merely on the existence of an executive order but also on the manner in which the State implements it.
The jurisprudence subsequently developed a stronger emphasis on competing rights. In Mazdoor Kisan Shakti Sangathan v. Union of India, the Supreme Court recognised peaceful demonstration as a fundamental right while requiring a workable regulatory framework for protest sites. The Court’s approach illustrates that the State need not choose between an absolute prohibition and unrestricted protest; regulation concerning location, time, numbers, noise, sanitation, and other practical considerations may reconcile competing constitutional interests.
Amit Sahni v. Commissioner of Police, commonly associated with the Shaheen Bagh road-blockade litigation, reinforces the principle that public ways cannot be occupied indefinitely in the name of protest. The Supreme Court did not treat the existence of a legitimate grievance as extinguishing the right of commuters and other members of the public. The constitutional objective is therefore accommodation, not the unilateral victory of either protesters or the administration.
The international dimension strengthens this constitutional understanding. Article 21 of the International Covenant on Civil and Political Rights recognises the right of peaceful assembly, while Article 20(1) of the Universal Declaration of Human Rights recognises the freedom of peaceful assembly and association. These instruments do not displace the Constitution, but they provide a useful human-rights context for understanding peaceful collective action as an important component of democratic participation.
Abstract
The right to protest is a foundational component of democratic participation, yet Indian constitutional law does not treat it as an absolute entitlement to demonstrate at any place, in any manner, or for any duration. The right is primarily derived from Articles 19(1)(a) and 19(1)(b) of the Constitution of India and operates within the framework of reasonable restrictions under Articles 19(2) and 19(3). This article examines the constitutional and human-rights foundations of peaceful protest, the State’s preventive and regulatory powers, and the judicial standards used to distinguish legitimate regulation from disproportionate interference. It analyses the Supreme Court’s decisions in Kameshwar Prasad, Himat Lal K. Shah, In re: Ramlila Maidan Incident, Anita Thakur, Mazdoor Kisan Shakti Sangathan, and Amit Sahni. The analysis shows a consistent judicial attempt to preserve democratic dissent while protecting public order, public ways, and the rights of third parties. The article argues that the principal contemporary difficulty is not the absence of constitutional doctrine but the breadth of administrative discretion in applying preventive measures. Stronger procedural safeguards, reasoned orders, narrowly tailored restrictions, and prompt judicial review are therefore essential to ensure that public-order powers regulate protest without chilling lawful dissent.
Case Laws
Kameshwar Prasad v. State of Bihar, (1962) Supp. 3 S.C.R. 369. The Supreme Court invalidated a blanket prohibition on demonstrations by government servants insofar as it covered peaceful demonstrations incapable of disturbing public tranquillity. The decision established that peaceful demonstration can fall within Articles 19(1)(a) and 19(1)(b). It also clarified that there is no fundamental right to strike.
Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, (1973) 1 S.C.C. 227. The Court recognised the State’s regulatory authority over public meetings and processions but rejected an unguided licensing discretion. Regulation of time, place, and manner may be constitutionally permissible; arbitrary refusal of permission cannot be used to convert a fundamental right into a privilege.
In re: Ramlila Maidan Incident, (2012) 5 S.C.C. 1. The Supreme Court examined the police action at Ramlila Maidan in June 2011 and emphasised the fundamental nature of peaceful assembly and protest. The State’s responsibility to maintain order must be exercised through lawful and proportionate means. The case is significant for demonstrating that excessive State force may itself violate constitutional rights.
Anita Thakur v. State of Jammu & Kashmir, (2016) 15 S.C.C. 525. The Court recognised peaceful demonstration as constitutionally protected while also noting that the particular protest before it had become violent. It stressed that reasonable restrictions are permissible and that, once force is used, the police must not employ excessive force beyond what the circumstances require. The decision is therefore useful for analysing both protester obligations and State obligations.
Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 S.C.C. 324. The Supreme Court balanced the right to protest with the Article 21 interests of residents and other affected persons in the Jantar Mantar area. Instead of treating the conflict as requiring an absolute victory for one side, the Court favoured regulated protest through guidelines addressing practical concerns such as time, numbers, and disturbance.
Amit Sahni v. Commissioner of Police, (2020) 10 S.C.C. 439. In the Shaheen Bagh litigation, the Supreme Court reaffirmed the importance of dissent while holding that public ways cannot be occupied indefinitely so as to obstruct the general public. The judgment places responsibility on the administration to address such situations and reflects the principle that the right to protest must coexist with the rights of commuters and other citizens.
Conclusion
Indian constitutional law occupies a middle ground between two extremes: an unrestricted conception of protest that disregards the rights of others and an administrative model in which peaceful dissent is treated as an inconvenience to be eliminated. Articles 19(1)(a) and 19(1)(b) protect the constitutional space necessary for citizens to communicate grievances collectively, while Articles 19(2) and 19(3) recognise that such freedoms operate within a democratic order in which public order and competing rights must also be respected.
The case law establishes several propositions with reasonable clarity. Peaceful protest is constitutionally protected; blanket prohibitions are constitutionally suspect; public meetings may be regulated through lawful and guided restrictions; police force must remain proportionate; and prolonged occupation of public ways cannot be justified merely by invoking the language of dissent. At the same time, regulation cannot become suppression through vague, standardised, or excessively broad preventive orders.
The transition from Section 144 of the Code of Criminal Procedure to Section 163 of the Bharatiya Nagarik Suraksha Sanhita has not altered the underlying constitutional requirement that restrictions on fundamental rights must remain legally authorised and constitutionally justified. The more pressing issue is therefore procedural: authorities should record specific reasons, identify the nature and immediacy of the apprehended danger, consider less restrictive alternatives, and periodically review continuing restrictions.
A mature constitutional democracy should not ask whether protest is convenient. It should ask whether the protest is peaceful, whether the restriction has a lawful and legitimate basis, whether the means adopted are proportionate, and whether the rights of both protesters and the wider public have been fairly accommodated. The enduring constitutional task is to preserve dissent without permitting disorder and to maintain public order without extinguishing the democratic freedom that gives public order its legitimacy.
