Public Order and Right to Protest

Right to Protest vs. Public Order includes a discussion of the constitutional limits on preventive policing. Read here to learn more.

Protests in New Delhi demanding the resignation of Chief Election Commissioner Gyanesh Kumar have triggered a debate over the right to peaceful assembly, prohibitory orders and police powers.

Authorities detained large numbers of demonstrators and imposed restrictions ahead of planned rallies. The Supreme Court subsequently directed authorities to prevent illegal detentions, maintain normal public transport and internet services subject to law, and ensure that journalists and other professionals could perform their duties.

The episode has renewed scrutiny of Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and the use of preventive police powers under Sections 170 and 172.

What Is Public Order?

Public order refers to the conditions necessary for the peaceful functioning of society and the maintenance of public tranquillity. It is distinct from an ordinary breach of law and order and from threats to the security of the State.

In Dr Ram Manohar Lohia v. State of Bihar (1966), the Supreme Court explained the distinction through the idea of three concentric circles:

• Law and order: The broadest category, covering ordinary offences and disturbances affecting individuals.
• Public order: Disturbances that affect the community’s normal life or public tranquillity.
• Security of the State: The narrowest category, involving threats to the State’s existence or security.

Not every violation of law threatens public order. Authorities must assess the nature, scale and likely consequences of the conduct rather than treating every protest or breach of a restriction as a threat to public order.

Constitutional responsibility

Under the Seventh Schedule, public order and police fall under Entries 1 and 2 of the State List, respectively. In the National Capital Territory of Delhi, however, Article 239AA excludes public order, police and land from the Delhi Legislative Assembly’s legislative competence, leaving these matters principally under Union control.

Criminal law and criminal procedure fall under the Concurrent List, allowing both Parliament and State Legislatures to legislate within constitutional limits.

Section 163 of the BNSS, 2023

• Section 163 replaces Section 144 of the Code of Criminal Procedure, 1973. It empowers a District Magistrate, Sub-Divisional Magistrate or another specially empowered Executive Magistrate to issue written orders in urgent cases involving a nuisance or apprehended danger.
• An order may direct an individual or the public in a specified area to abstain from an act or take particular action where this is necessary to prevent obstruction, injury, danger to human life, health or safety, disturbance of public tranquillity, riots or affrays. It may be issued ex parte in emergencies where advance notice is impracticable.
• Duration: An order ordinarily remains in force for no more than two months. The State Government may extend it by notification for a further period not exceeding six months, subject to the statutory conditions.
• Section 163 does not automatically prohibit every gathering of five or more people. Such restrictions depend on the terms and scope of the order. The threshold of five persons is associated with the law on unlawful assemblies under the Bharatiya Nyaya Sanhita, not a universal prohibition created by Section 163 itself.

Concerns over misuse

• Routine invocation: Emergency powers may become administrative shortcuts if imposed without a specific and immediate threat.
• Overbroad restrictions: Area-wide orders can restrict peaceful demonstrators, commuters, journalists and ordinary residents who pose no threat.
• Insufficient transparency: Inadequate disclosure of reasons can make it difficult for affected persons to challenge restrictions.
• Disproportionate consequences: Restrictions on movement, assembly and access to public transport may affect people far beyond the intended protest site.

Understanding Preventive Police Powers under the BNSS

Preventive action aims to avert an anticipated offence or disturbance rather than punish a person for a crime already established in court.

It must be distinguished from punitive detention following conviction and from preventive detention under special laws.

Section 170: Arrest to prevent cognizable offences

• Section 170 permits a police officer who knows of a design to commit a cognizable offence to arrest the person concerned without a warrant or Magistrate’s order if the offence cannot otherwise be prevented.
• Custody under this provision cannot exceed 24 hours unless further detention is authorised under another applicable law.
• This is a limited preventive arrest power, not a general authority to detain anyone who intends to participate in a protest.

Section 172: Compliance with lawful police directions

• Section 172 requires people to comply with lawful police directions issued in the discharge of duties under the relevant chapter of the BNSS.
• A police officer may detain or remove a person who resists, refuses, ignores or disregards such a direction, and may take the person before a Magistrate or release them as soon as possible within 24 hours in petty cases.
• The requirement that directions be lawful is crucial. Section 172 cannot independently validate an unlawful order or justify indiscriminate detention.

Preventive arrest vs preventive detention

• Preventive arrest under the BNSS is different from formal preventive detention under laws such as the National Security Act, 1980.
• Preventive detention under special legislation involves distinct statutory procedures and constitutional safeguards.
• Article 22 provides specific protections concerning arrest and detention, while Article 21 requires deprivation of personal liberty to follow a procedure established by law that satisfies constitutional standards.
• The applicable safeguards depend on the legal basis of the custody; not every temporary police detention is equivalent to preventive detention under a special statute.

Constitutional Basis of the Right to Protest

The Constitution does not contain a separate, unlimited fundamental right labelled the “right to protest”. Peaceful protest is protected principally through:

• Article 19(1)(a): Freedom of speech and expression.
• Article 19(1)(b): The right to assemble peaceably and without arms.
• Article 21: Protection of life and personal liberty.

These rights are not absolute. Articles 19(2) and 19(3) permit reasonable restrictions on specified constitutional grounds, including public order.

The central question is whether a restriction is legally authorised, necessary and proportionate to the threat.

Important Supreme Court Judgments

1. Babulal Parate v. State of Maharashtra (1961)

• The Supreme Court upheld the constitutional validity of anticipatory prohibitory orders under the former Section 144 CrPC.
• The power to act in advance can be legitimate, but it remains subject to constitutional limits and judicial scrutiny.

2. Madhu Limaye v. Sub-Divisional Magistrate, Monghyr (1970)

• The Court emphasised the exceptional and urgent nature of Section 144 powers.
• The provision is not an ordinary administrative instrument; the circumstances must justify the preventive action and its scope.

3. Ramlila Maidan Incident v. Home Secretary, Union of India (2012)

• The Supreme Court examined the dispersal of a gathering and stressed the need to protect fundamental rights while maintaining public order.
• Police action against a gathering must comply with legal safeguards and avoid unjustified or excessive force.

4. Mazdoor Kisan Shakti Sangathan v. Union of India (2018)

• The Court recognised peaceful demonstrations as a fundamental right under Articles 19(1)(a) and 19(1)(b).
• It also acknowledged the rights of residents and the public, requiring a balance rather than the complete extinction of either side’s rights. Regulated protest spaces and reasonable conditions can facilitate that balance.

5. Anuradha Bhasin v. Union of India (2020)

• In the context of restrictions on internet access, the Court emphasised proportionality, publication of orders and judicial review.
• Although the case concerned communications restrictions, its proportionality principles are relevant to evaluating restrictions that affect speech and democratic participation.

6. Amit Sahni v. Commissioner of Police (2020)

• In the Shaheen Bagh matter, the Court held that public ways cannot be occupied indefinitely and that the rights of protesters must be balanced against the rights of other citizens.
• The judgment does not eliminate the right to protest; it addresses its exercise in shared public spaces.

Preventive Action and Constitutional Safeguards

The constitutional concern is not whether the State can act preventively; it can, but whether the action is based on law and supported by relevant circumstances.

• Legality: Every restriction or detention must have a valid legal basis.
• Necessity: Authorities should establish a genuine risk that cannot reasonably be addressed through less restrictive measures.
• Proportionality: The extent, duration and geographical scope of restrictions should correspond to the actual threat.
• Non-discrimination: Peaceful protesters should not be treated as violent offenders merely because they participate in the same demonstration.
• Accountability: Written orders, records of custody, access to legal remedies and judicial review help prevent abuse.
• Freedom of the press: Journalists must be able to report lawfully without arbitrary obstruction or detention.

Detention and Arrest

The words “detention” and “arrest” are often used loosely in public discussion, but their legal implications differ.

An arrest is a formal exercise of legal authority to take a person into custody. Detention is a broader term describing the restriction of a person’s liberty and may occur under different legal powers.

• A temporary preventive arrest under Section 170 BNSS is not the same as long-term preventive detention under a special statute.
• For an ordinary arrest, Article 22(1) protects the right to be informed of the grounds of arrest and to consult and be defended by a legal practitioner.
• Article 22(2) generally requires production before a Magistrate within 24 hours, excluding necessary journey time.
• Specific constitutional exceptions and statutory provisions must be considered where applicable.

Preventive detention under Article 22(3) has a different constitutional framework, including safeguards under Article 22(4) and related provisions.

• It should not be conflated with every short-term police action taken during crowd control.

Civil Disobedience and Democratic Dissent

• Mahatma Gandhi’s philosophy of non-violent civil disobedience treated peaceful dissent as a means of challenging authority without resorting to violence.
• His approach remains relevant to constitutional democracy: citizens must be able to express dissatisfaction with public institutions, while demonstrations must also respect lawful restrictions and the rights of others.
• The constitutional protection of peaceful dissent does not make every act committed during a protest lawful.
• Equally, unlawful conduct by some participants does not automatically justify treating every demonstrator as a threat.

Measures to Balance Protest and Public Order

1. Use Section 163 selectively: Orders should identify the material facts, the anticipated danger, the affected area and the duration of the restriction.
2. Facilitate peaceful assemblies: Authorities should provide accessible protest locations and clear permission procedures while considering traffic, safety and public convenience.
3. Adopt graduated crowd-control measures: Dialogue, warnings and targeted action should be preferred where feasible; force should be necessary and proportionate.
4. Differentiate individuals by conduct: Action should focus on persons who engage in violence or other unlawful conduct rather than indiscriminately targeting peaceful participants.
5. Improve transparency: Publish prohibitory orders promptly, state reasons, and provide an accessible process for review or modification.
6. Strengthen accountability: Maintain records of arrests and detentions, ensure compliance with custodial safeguards and investigate credible allegations of excessive force.
7. Ensure independent scrutiny: Courts and appropriate oversight bodies should be able to examine the legality of restrictions and the treatment of detained persons.

Conclusion

A constitutional democracy requires both public order and the freedom to dissent. The BNSS equips authorities with preventive powers, but these powers are not a substitute for evidence, necessity or accountability.

The appropriate balance is achieved when peaceful protest is facilitated, genuine threats are addressed through lawful and proportionate action, and every person’s liberty remains protected by constitutional safeguards.