Author- Deepti
Student at MERI Professional and Law Institute
Introduction
There’s more to a democracy than just elections, legislatures, and governments. It is also a space that accommodates dissent. The capacity of citizens to question government actions, contest laws, challenge decisions, seek accountability and articulate dissent openly is among the foundational traits of a constitutional democracy. As such, protest may be seen not as a disruption of government in a democracy but as one way in which a democracy remains responsive to the people whom it governs.
Protests, however, inevitably produce a constitutional tension. While the intent of a demonstration may be peaceful, its effects may nonetheless be disruptive. A march may convey a legitimate political point while adversely impacting traffic flow. A sit-in may shed light on an issue ignored by authorities but may prevent access for other citizens on a public thoroughfare. An assembly may be entirely non-violent but may nevertheless give rise to significant police arrangements and mobility restrictions. The State can hardly claim an option to choose between supporting protesters and upholding public order. It is constitutionally mandated to manage the intricate territory between the two.
This distinction becomes especially pertinent to India, given the Constitution not only upholds the right to dissent but also seeks to protect public order interests. Article 19(1)(a) enshrines freedom of speech and expression, while Article 19(1)(b) guarantees the right peaceably and without arms to assemble. At the same time, Article 19(3) allows for reasonable restriction of the right of peaceful assembly on the grounds of the sovereignty and integrity of India or public order. Article 19 thus simultaneously includes freedom and grounds for restriction of freedom.
The resulting question, then is not whether there is a right to protest for Indians. Constitutional jurisprudence has unequivocally acknowledged peaceful protest as a right, an expression of fundamental freedoms. The question is rather about the limits of such right and the duty of the State to preserve public order.
This question assumes particular significance in the age of mass protests, long sit-ins, political mobilizations via social media, preventative restriction of demonstrations and increasing executive control over assemblies. This tension is amplified with the recent substitution of Section 144 of the Code of Criminal Procedure, 1973 with Section 163 of the BharatiyaNagarik Suraksha Sanhita, 2023 which introduces preventive and regulatory provisions relating to public gatherings.
The constitutional equilibrium can be maintained by not treating every protest as an invasion of public order and also not treating the right to protest as an unrestricted license to obstruct public space. It lies in recognizing the constitutional value of peaceful dissent while demand that it be reconciled with the rights and security of the broader citizenry.
The Constitutional Foundation of the Right to Protest
There is not a distinct fundamental right called the right to ‘protest’. The right arises from the interplay of several fundamental rights namely most important articles namely Articles 19 (1) (a) and 19 (1) (b) of the Constitution. Under 19(1)(a), there is an assured right of free speech and expression.
At its heart, a protest is an act of communication.
One way in which an Individual communicates his views may be through a newspaper but it can also be done in different form of manifestations of his ideas and opinions, as carrying a banner, raising slogans, addressing to the group, participating in procession and also the public gathering and public Demonstration of individual on social or political question form the manifestation of one’s ideology and sentiments, and as such an act comes under purview of ‘speech and expression’. Under Article 19(1)(b), an Individual communicate his beliefs and opinion collectively to the others by assembly peacefully and unarmed. Article 19(1)(b) of Constitution guarantees right of the citizens to assemble peacefully and to make use of their common opinion for political and other activities and to protest for a desired outcome. It ensures that collective communication can be made.
The Constitution protects an Individual’s ability to come together and voice dissent together on an important socio/political issue.
Indian Constituent of Law acknowledges a distinction between freedom of speech, assembly, association rights etc of an Individual and that of the crowd demonstration and public protest/ demonstration. A Constitution allows to protect both as they perform different roles. Indian Courts maintain a healthy distinction between a violent riot or unauthorized crowd demonstration/procession and peaceful expression of rights through demonstration / march etc.
The Indian judiciary in the leading case like Kameshwar Prasad v State of Bihar a provision under a rule for Government Servant providing to the employee for prohibition of demonstration with in reference to any terms and service of the Govt. The SC after having analysis, was convinced that if a protest takes the shape of demonstration then it comes within “speech and expression”. But, further distinguishing it from any disorder demonstration The Constitution however does not protect violence at any cost and any riot, disorders on the behest of any public / political cause is criminal.
Protest Is More Than a Political Activity
The importance of the right to protest becomes more obvious when protest is understood not just as a public gathering but as an expression of democratic participation.
Formal democratic institutions do not always offer direct access to those with decisionmaking power. Elections take place only periodically. Parliamentary and legislative processes often are slow and formal. Administrative decisions may impact individuals who have little direct control over those who take them. The courts are one-way citizens have access to remedy, but litigation can be costly, time-consuming and unreachable for many.
Protest remedies this democratic gap.
It allows citizens directly to convey their complaints and grievances to the political community. Protest can inject issues not addressed by the formal system into public discourse, leading to political pressure to address those issues. Many of our most important social and political movements of the past have succeeded through reliance on mass public mobilization.
This is crucial for groups that lack conventional political power. A constitutional democracy does not presuppose that every legitimate complaint will find itself represented in the elections. Peaceful protest offers citizens and groups another way to engage politically.This is why protecting the constitutional right to protest cannot be a matter of convenience. A democracy in which citizens may speak only when it does not offend anyone is one in which speech has little practical protection from constraint.
What Does “Public Order” Actually Mean?
The term “public order” may seem surprisingly straightforward. In effect, however, it is one of the most critical and potentially strongest justifications for derogating from guaranteed fundamentalfreedoms.
‘Public order’ is not synonymous with the ease of government. Furthermore, all inconvenience resulting from a demonstration is not necessarily a danger to public order. Indian constitutional law has generally made a distinction between “ordinary breach of peace or disturbance of law and order” and that of “disturbance affecting the public order”. The reason for this distinction is thatArticle 19(3)does not vest the state with an untrammelled power to put down any gathering that causes inconvenience. The restriction must relate to a constitutionally envisaged restriction.
This is crucial in a democracy, as protests by definition, can be troublesome. A march, for example, occupies space. A demonstration will attract onlookers. A public meeting may impede traffic. If every outcome of a protest is a public order problem, then exercise of the constitutionally bestowed right will become virtually impossible.Therefore, the state needs to find more than just inconvenience. It must be able to show a real connection between the proposed restriction and the maintenance of public peace, safety or tranquillity.
Nevertheless, the threshold cannot be so high that the state should wait for riot to occur before taking the preventive step. It has an inherent preventive dimension. When there is a real and imminent danger of riot, significant obstruction or danger to the individual’s life and safety, the state has a duty to act.
It is thus a question of judgment-of preventing genuine disorder without allowing the possibility of disorder to become an excuse for stifling dissent.
Reasonable Restriction Is the Constitutional Safeguard
Here, the phrase “reasonable restriction” plays an essential function. The State may prohibit the demonstration but that would not be reasonable in all circumstances. The prohibition would have to be related to the pursuit of a permissible constitutionally recognized purpose and would have to be proportionate to that purpose.
Take the situation in which the police are informed that two feuding factions are going to demonstrate at the same location and time and that previous protests between the factions have resulted in violence.
Here, it may perfectly reasonable for the state to alter one protest’s route or give the two sides different time slots or assign them separate locations. This is all very different from the state finding out about the demonstration of a single, non-violent protest group that would be embarrassing to the government administration. The State would certainly not permit such an administration to outlaw the latter, any more than it would permit any administrator anywhere to forbid speech with which they disagreed. The state should indeed allow the former.
From Regulation to Prohibition: Where Should the Line Be Drawn?
Among the primary concerns in protest jurisprudence is the distinction between regulating protest and suppressing protest. The state may take regulations concerning the time, place and manner of protests legitimately. Massive gatherings may require control of traffic, coordination of emergency measures with local authorities and police protection. Such regulations may not actually compromise protest.
Indeed, in many situations the regulations on a mass demonstration protect participants more.
However the state runs afoul when regulations begin to limit or even prohibit a protest.
When the State mandates that protest take place at a distant, inaccessible site which cannot meaningfully convey the message of the protest, formal notice and regulation might still appear proper under regulations which would not have any actual impact upon the ability of individuals to protest. Also, the requirement for a permit may not automatically trigger the conclusion that the regulation of protest rights is unlawful; rather the process of regulating permits must satisfy objective and reasonable guidelines, rather than to grant undue discretion to state authorities based on the political bent of demonstrators.
These parameters form a central feature of protest doctrine jurisprudence and the way that a variety of governments seek to balance various societal concerns while at the same time protect freedom of assembly and association.
Himat Lal K. Shah and the Use of Public Spaces
The Himat Lal K. Shah v Commissioner of Police case is a crucial decision in the constitutional history of public demonstrations. The central dispute was about the restrictions on public meetings and use of streets and public places.
The court acknowledged that public assembly is a fundamental aspect of democratic practice but also noted that regulated use of public places is appropriate and permissible.
The basic constitutional principle which comes out of the decision is not about an untethered right on the part of every citizen to hold a meeting on every possible piece of land, but rather that the power to regulate public property must not assume an arbitrary power to preclude citizens from participating in activities which are their fundamental rights. This distinction is important and is very much applicable today. A street does not become private property because there was a demonstration thereon. Nevertheless a street does not have an unfettered right for the state to prohibit a demonstration thereon.
Public property represents the people who are the democrats. The use of public places must be regulated in relation to the differing demands upon them.
In Re: Ramlila Maidan Incident and the Duty of Restraint
The ruling in the Ramlila Maidan case underlined the importance of the State’s duty to respect constitutionally guaranteed freedoms. The case involved the exercise of force by the Police against a gathering. While the court acknowledged that police were exercising power over those exercising rights for the sake of public order it was careful to make a distinction to the effect that any exercise of State power must not exceed all reasonable bounds.
The implications of the decision are far more extensive than merely defining a specific boundary.
The ruling clearly identifies the State’s ongoing accountability to the constitution even where it faces mass public unrest. It points out that a crowd is of no help to the state and could act as evidence against the State at an appropriate time.
Mazdoor Kisan Shakti Sangathan : Balancing Two Sets of Rights
Mazdoor Kisan Shakti Sangathan v Union of India may be the clearest modern judicial pronouncement on the balancing approach. It stemmed from discontent with protests at Jantar Mantar in New Delhi and their effects on residents in the vicinity. The Court accepted that the right of persons to conduct peaceful protests and demonstrations, is a fundamental right protected by Articles 19(1)(a) and 19(1)(b).
However, it found that the considerable inconvenience and distress suffered by residents would indicate that one right cannot be allowed to totally obliterate the other.
This principle is central to the balancing approach and for good reason. Balancing doesn’t mean setting one right above the other, for all situations. If people exercising their rights make that quite impossible for residents exercising theirs, this truly isn’t a balance, just as giving residents a right that cannot realistically coexist with protests, also denies reasonable exercise of protest rights. Balancing means limiting one right so that the other may subsist and this principle could be most useful for the constitutional question at hand.
The Shaheen Bagh Judgment and the Problem of Indefinite Occupation
Another key moment in the debate over the right to protest came in the Shaheen Bagh protests. Amit Sahni v Commissioner of Police saw the Supreme Court balance an acknowledgement of the right to peaceful protest with the issue of long-term blocking of roads and public spaces. The Court stated that while the right to peaceful protest is a protected right, public ways/spaces cannot be occupied indefinitely if it leads to an ongoing public inconvenience.
This decision does not imply that no protest may take place without any disruption whatever. That could be unrealistic. A demonstration may work best when it commandeers public notice and indeed public space. Temporary diversion of traffic, temporary closure of roads and temporary disruption would be incidental to the right to free assembly. The difficulty arises when temporary disruption becomes indefinite occupation.
It does make a fundamental difference when a march temporarily traverses the road along an organized route and an indefinite road closure preventing public access to a crucial road.
The constitutional right protects the former much more concretely than the latter. The Shaheen Bagh lesson therefore is that one may use public spaces for a protest but such spaces cannot remain ‘ownerless’ just because a protest has set up camp.
The Rights of the People Who Are Not Protesting
It is one of the biggest takeaways of the recent Indian judicial thinking on protest that the constitutional discourse need not be solely about protesters. Those citizens impacted by protests have rights too. Article 19(1)(d) secures freedom of movement.
People need to traverse public space not just to get to offices, colleges, courts and houses but also hospitals; not only are livelihoods dependent on this movement but also children’s education and treatment of the sick.
Deeper still, there is the concern of Article 21 – a protest that holds back an ambulance from getting to a hospital or puts citizens at serious risk must be viewed in its stark reality, not reduced to a mere inconvenience. The constitutional dilemma then is not whether protesters may assemble but whether the right is so exercised as to make the movement of others and the ability to do things they might need to do impossible. That’s why it is significant that Mazdoor Kisan Shakti Sangathan “has ensured the discourse doesn’t descend into a clash between protesters versus non-protesters… rather a search for equilibrium between competing interests.” The approach is not to label one category of citizens as superior over another, in the eyes of the Constitution.
The New Legal Framework: Section 163 of the BNSS
Legislative changes have been implemented to the public-order framework as well.
The BharatiyaNagarik Suraksha Sanhita, 2023 came into effect on July 1, 2024 and has replaced the Code of Criminal Procedure, 1973, as India’s dominant criminal-procedure legislation. Within the section dealing with “Maintenance of Public Order and Tranquility” in the Sanhita, section 163 provide the current statutory tool for urgent orders in situations of nuisance or apprehended danger.
163 provides that “When any Executive Magistrate deems it to be his duty….in the interest of public order and tranquility, he may by written order, direct a person to refrain from a particular act or to do something specific with his property”. The section deals with various conditions “which involve physical obstruction or danger to any personlawfully engaged in their occupation or profession, danger…to human life, health or safety… Disturbance… Riot and affray.”
The section is an important provision for protest law, as mass demonstrations typically constitute the very sorts of circumstance where the State wishes to have the authority to initiate preventive intervention.
Nonetheless, the existence of 163 cannot be used to suggest that all protests can simply be prohibited through executive order.A statutory power can never itself exist outside of the Constitution. The order issued by an Executive Magistrate must have a basis in law, fulfill the criteria under the section and is always open to constitutionality testing. Indeed, the plain text of 163 mandates that a written order cite the material facts on which the direction to do or refrain from doing is based.
This factor is critical as without a clear recitation of factual reasons, fundamental rights cannot meaningfully be evaluated when rights have been circumscribed solely on the basis of vague assurances.
Public Order Cannot Become a Code Word for Political Discomfort
The gravest of the constitutional dangers in this region is when “public order” is just the administrative catchphrase used by the government whenever it finds political protest inconvenient.
Governments will be criticized. Parties will be opposed. Statutes will be challenged. Administrative orders will be called into question. The institutions of the state will on occasion be demonstrators’ targets.
It cannot be permitted by the constitutional system that the government should be allowed to decide that a demonstration is illegitimate, simply because it is politically inconvenient.
The state can be permitted to control the behaviour of a demonstration when needed. It cannot be permitted to suppress the content simply because it doesn’t like what is being said. That is the central feature of the right of free speech.
A democracy which only protects the views of the majority does not need any constitutional backbone; it is where the speech of the unpopular, the critical and the inconvenient takes centre stage that we test Article 19’s worth.The right to protest, in particular, needs to serve its function most critically when the government wishes no such demonstration had been held.
The Importance of Time, Place and Manner
But an obviously reasonable constitutional alternative is regulating time, place and manner.
There’s no sense in arguing a demonstration loses its purpose unless it’s held in the location precisely chosen by its organisers or for precisely the number of hours by its organisers.
Governments are perfectly capable of legislating that any protest will be held and any demonstration will run between one particular hour, in a specific, generally adjacent place that continues to provide reasonable access to relevant officials, provided this doesn’t functionally undermine the communication intent.
A protest aimed at hospital access, for example, which was restricted to a location adjacent to the entrance, might still constitute permissible regulation; a demonstration about hospital access which was moved to a remote site many miles away where its proponents cannot communicate it meaningfully, however, less certainly so.
The distinction is about substance, not just geography.
The State Has a Duty to Facilitate Peaceful Protest
Constitutional duty of the state ought not to be construed simply as a coercive power to prevent
Police and administration also have a positive part in peaceful protesting. A large assembly may require traffic diversions, barricades, security forces and emergency facilities including the provision of medical help. None of the above measures amounts to an assault on the right to protest. When framed properly, each can actually assist in enabling this right. The question in the administration ceases to be “how can the protest be prevented?”, but turns into “how can the protest be allowed to take place safely?”. This shift in thought process has a constitutional dimension. The argument for accommodation based on reasonable regulation, when a peaceful protest may be allowed, is constitutionally potent rather than the immediately invoked prohibition. A state that can tolerate disagreement is closer to a democracy than a state that uses coercive force to prevent disagreement.
Protesters Also Have Constitutional Responsibilities
Having a constitutional right does not absolve one exercising it of responsibility. Protesters do not receive constitutional protection to carry out arson, violent conduct, battery or criminal mischief just because they happen to be carrying on political protest. The constitutional line separating an peaceful assembly and unlawful behavior must therefore be preserved.
Responsible protest should retain its peaceful nature to receive its constitutional protection.
The State officials should cooperate with traffic and security regulations which are necessary and reasonable, ensure emergency access and encourage protestors against using violence.
In parallel, the illegal behavior of a small number of individual protesters should not serve to make a violent characterization of each protestor.
Similarly, the State must draw a line between protestors who exercise political protest and perpetrators of criminal conduct whenever such a division is possible.
The constitutional principle of proportionality has application to law enforcement as well as to regulation.
The Real Meaning of Constitutional Balance
The term ‘constitutional balancing’ sounds like a compromise where everyone has some, but not enough. This is not what it is about, constitutionally at least. It isn’t about diluting rights just for the sake of a compromise.
It is about understanding that there may be different constitutional rights operating simultaneously and that the state must reconcile them.
A protestor should not have to forgo the right to criticize just because a protest causes an inconvenience; a commuter should not have to forego the right to reach work forever, just because the road is occupied by a demonstration. The question therefore isn’t whether inconvenience exists: some inconvenience will exist in any democracy. The question is whether the inconvenience is proportional, necessary and has a reasonable relation to the right: this is why Mazdoor Kisan Shakti Sangathan (MKSS) so famously stated that it cannot be called balancing when one right is given absolute supremacy thereby rendering other rights non-existent. Accommodation should be the constitutional aim.
Conclusion
The Right to Protest versus the State’s need to maintain public order are often presented as mutually exclusive constitutional values where one’s victory inevitably means another’s defeat. The more complex reality is otherwise.
Both values are recognised by the Constitution. Article 19(1)(a) protects the fundamental right to freedom of speech and expression allowing citizens to voice their opposition and Article 19(1)(b) the right to peaceful assembly thus channelling dissent into collectivity. However, Article 19(3) stipulates that freedom of assembly may be reasonably restricted for reasons of public order.
To the existingconstitutional framework we now add Section 163 of the BharatiyaNagarik Suraksha Sanhita, 2023 which grants Executive Magistrates preventive power in any urgent case requiring immediate prevention or speedy remedy. It also deals with various matters, including obstruction of public pathways, danger to human life, health or safety, disturbance of public tranquillity and riot or affray.
A statutory power is never a substitute for constitutional immunity. Any measure that infringes a Fundamental Right must be constitutional and its restricting nature must pass the test of constitutional scrutiny.
A protest, if it is peaceable, does not need to be subdued merely because it is inconvenient, diplomatically uncomfortable or because the powerful dislike the words of criticism uttered by the protestors. Similarly the right to protest cannot be a tool for perpetually occupying public spaces and blocking access to essential services and for transgressing on others’ fundamental rights.
The strength of a democratic system, as understood by constitutional law, comes from its capacity for tolerating disagreement and dissent without succumbing to disorder, while maintaining order without quelling dissent.
Thus, the constitutional question will not be the right to protest versus the maintenance of public order but recognizing that a democracy is not functional without them simultaneously.
Public order alone without the protection of liberty degenerates into autocracy and protection of liberty at the expense of the other person’s rights and safety degenerates into chaos.
The Constitution demands something much harder than either extreme: a State able to maintain order but also a State able to tolerate dissent and mature enough to understand that peaceful differences are not the enemy of a democracy but one of its defining characteristics.
Frequently Asked Questions
Is the right to protest a fundamental right in India?
The right to protest has not been framed explicitly by its title in the form of a fundamental right. Nevertheless, it is protected under the Constitution from the perspective of freedom of speech and expression under Article 19(1)(a) and the right to peacefully assembly and carry no arms under Article 19(1)(b). Peaceful demonstrations and protest are in fact recognized as an extension of Fundamental Rights by Supreme Court.
Can the government prohibit a peaceful protest?
If there exists valid reason in support of the grounds protected by the Constitution where it has called for an intervention like disturbance in the public order, then restrictions can be imposed. However, the mere act of demonstration inconveniencing or opposition from politicians, is not sufficient. Restriction ought to have legitimate reason.
Can the protesters block public roads?
It is an erroneous interpretation that any person has unrestricted rights to use public roads by stopping/blocking them. According to the landmark judgment passed by the Supreme Court, “It cannot also be stated as there is an unfettered freedom to trespass and occupy public area”. It is impossible to claim indefinite, obstructionary, per manent blockage of public space.
Although blocking of road for temporary time in process of marching in demonstration may come within protection afforded.
What is Section 163 of BNSS?
Section 163 of the BharatiyaNagarik Suraksha Sanhita, 2023 empowers the specified Executive Magistrate for prevention when the case indicates any impediment/obstacle, endangerment to human life, health, safety/disturbance of peace/tranquility/riot or Affray. This is contemporary form in place of 144 of CrPC the preventive mechanism which is broadly recognized.
Can police control location of a protest?
Yes, Police can regulate the time, place and manner of conducting public demonstrations subject to ensuring there are sufficient restrictions placed at necessary places or in the vicinity as well as in relation to the protection of public peace, traffic movement or as the case may be; but restrictions do not turn to prohibitive to affect or harm the right to exercise peaceful protest.
Does the right to protest protect violent protest?
No. It should not be forgotten, protest is protected only when it is an extension of peaceful gathering without arms. The Right to freedom to speech & expression does not include the act of riot, vandalism, arson, attack etc.
Can the government prevent protest due to government policy criticism?
The government cannot justify imposition of restriction with reference to opposition from it; because of criticism made by way of protest against the government, in accordanceance with the provisions cited earlier. A criticism can be prevented through restrictions imposed, as it meets necessary pre-requisites in a lawful manner in relation to specific subject.
Why is public order considered in case of a protest?
Maintaining of the public order, it means to the extent of preventing disturbances from breaking-out in an organized riot and from such public displays of protest as could disturb the quiet enjoyment of society, also constitutes public interest according to the public at large.
The Right to freedom of assembly to do acts which are to an extent a disturbation (which can be a minor one) or an impedance but still does not harm / jeopardize public order as above should be permissible in a liberal society.
References
- Constitution of India, arts 19(1)(a), 19(1)(b), 19(1)(d), 19(2) and 19(3).
- Kameshwar Prasad v State of Bihar, AIR 1962 SC 1166.
- Babulal Parate v State of Maharashtra, AIR 1961 SC 884.
- Himat Lal K. Shah v Commissioner of Police, (1973) 1 SCC 227.
- In Re: Ramlila Maidan Incident, (2012) 5 SCC 1.
- Mazdoor Kisan Shakti Sangathan v Union of India, (2018) 7 SCC 192.
- Amit Sahni v Commissioner of Police, (2020) 10 SCC 439.
- BharatiyaNagarik Suraksha Sanhita, 2023, particularly ss 148–163.