Right to Protest

The protests in 2026 against exam paper leaks highlight the aspects of Constitutional Right to Protest, Police Powers, and Democratic Policing. Read here to learn more.

The ‘Chalo Sansad’ protests have once again highlighted the delicate balance between the fundamental right to protest and the State’s responsibility to maintain public order.

The episode has renewed discussions on constitutional safeguards, police accountability, internet shutdowns, proportional use of force, and the need for democratic policing based on the rule of law.

Constitutional Basis of the Right to Protest

The Constitution of India does not expressly mention the “right to protest.” However, it is derived from multiple Fundamental Rights under Part III.

• Article 19(1)(a): Guarantees Freedom of Speech and Expression, enabling citizens to express dissent and criticize government policies.
• Article 19(1)(b): Provides the Right to Assemble Peacefully and Without Arms, forming the constitutional foundation of peaceful demonstrations.
• Article 19(1)(c): Guarantees the Right to Form Associations and Unions, enabling collective action.
• Article 21: The Right to Life and Personal Liberty has been interpreted to include the right to live with dignity and peacefully voice grievances.

Collectively, these provisions recognize protest as an essential feature of participatory democracy.

Constitutional Limitations

The right to protest is not absolute.

Article 19(2)

Reasonable restrictions may be imposed on free speech in the interests of:

• Sovereignty and integrity of India
• Security of the State
• Friendly relations with foreign States
• Public order
• Decency or morality
• Contempt of court
• Defamation
• Incitement to an offence

Article 19(3)

Restrictions on peaceful assembly may be imposed in the interests of:

• Sovereignty and integrity of India
• Public order

Thus, protests may be regulated, but cannot ordinarily be prohibited unless public order is genuinely threatened.

Statutory Framework Governing Protests

Section 163, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

• Empowers Executive Magistrates to issue prohibitory orders during emergencies to prevent disturbance of public peace.

Delhi Police Act, 1978

Allows regulation of:

• Protest locations
• Routes
• Timing
• Crowd management
• Traffic arrangements

What Constitutes an Unlawful Assembly?

Under the Bharatiya Nyaya Sanhita (BNS), 2023, an assembly of five or more persons becomes unlawful only when its common object involves:

• Criminal force
• Resistance to law
• Commission of offences
• Intimidation
• Coercion

A peaceful assembly does not automatically become unlawful merely because it causes inconvenience.

Standards Governing Police Action

Principle of Democratic Policing

The National Human Rights Commission (NHRC) emphasizes that police exist to:

• Protect citizens’ rights
• Uphold rule of law
• Use force only as a last resort

UN Basic Principles on the Use of Force (1990)

Force must always satisfy:

• Legality
• Necessity
• Proportionality
• Accountability

Principle of Minimum Force

The BNSS and Police Code of Conduct require police to prioritize:

• Negotiation
• Persuasion
• Warnings
• Dialogue

Physical force should be used only when absolutely unavoidable.

Identification of Police Personnel

The Supreme Court in D.K. Basu v. State of West Bengal (1997) directed that officers making arrests must wear:

• Visible identity cards
• Name badges

However, similar explicit provisions for crowd-control personnel remain inadequate, raising accountability concerns.

Important Supreme Court Judgments

Ram Manohar Lohia v. State of Bihar (1965)

Distinguished:

• Law and Order (localized disturbance)
• Public Order (disturbance affecting society)

Restrictions are justified only when public order—not merely law and order—is threatened.

Himat Lal K. Shah v. Commissioner of Police (1973): Held that while the State may regulate assemblies, it cannot extinguish the right to protest.

In Re: Ramlila Maidan Incident (2012)

Declared that:

• Peaceful protest is a constitutional right.
• Police must exercise maximum restraint.
• Force should remain the last resort.

Anita Thakur v. State of J&K (2016): The Court held that excessive force against protesters violates Fundamental Rights and awarded compensation to injured demonstrators.

Mazdoor Kisan Shakti Sangathan v. Union of India (2018): Reaffirmed that police regulation of protests cannot amount to prohibition.

Amit Sahni v. Commissioner of Police (2020)

Held that:

• Dissent is protected.
• Public roads cannot be occupied indefinitely.
• Rights of protesters must be balanced with rights of commuters.

Concerns Highlighted by the protests

Excessive Use of Force

Allegations include:

• Tear gas
• Pellet guns
• Shock batons
• Lathi charge
• Preventive detention

Such measures raise questions under the Doctrine of Proportionality.

Internet Shutdowns

Restrictions on internet services affect:

• Freedom of speech
• Business
• Education
• Emergency communication

In Anuradha Bhasin v. Union of India (2020), the Supreme Court held that internet restrictions must satisfy:

• Legality
• Necessity
• Proportionality
• Publication of orders
• Periodic review

Accountability Deficit

Concerns include:

• Police without visible identification
• Masked personnel
• Difficulty fixing responsibility

These undermine public confidence.

Gender Concerns

• Reports of manhandling women protesters, inadequate deployment of women police, arbitrary detention raise issues under Article 21 and statutory safeguards requiring women to be handled by women police except in exceptional circumstances.

Political Interference

Police neutrality is affected by frequent executive influence over:

• Transfers
• Postings
• Investigations

Manpower Shortages

India has approximately 155 police personnel per lakh population, significantly below the UN norm of 222, with around 21% vacancies.

This contributes to:

• Fatigue
• Burnout
• Increased reliance on coercive methods

Colonial Legacy

• Most States continue to function under the Police Act, 1861, originally designed to maintain colonial control rather than democratic policing.

Need for Police Reforms

Implement Prakash Singh Reforms (2006)

Operationalize:

• State Security Commissions
• Police Establishment Boards
• Independent Police Complaints Authorities

to enhance autonomy and accountability.

Separate Investigation from Law & Order

As recommended by the Second Administrative Reforms Commission (2nd ARC) and the Malimath Committee, this would:

• Improve investigation quality
• Reduce dependence on coercive methods
• Enhance professionalism

Standard Operating Procedures (SOPs)

Develop clear SOPs emphasizing:

• Negotiation
• Crowd psychology
• Human-rights compliance
• Graduated use of force

Modernization of Police

Accelerate the Modernization of Police Forces (MPF) scheme by:

• Filling vacancies
• Introducing body-worn cameras
• Expanding CCTV coverage
• Enhancing forensic capabilities
• Upgrading communication systems

SMART Policing

Promote the vision of SMART Policing:

• S- Strict and Sensitive
• M- Modern and Mobile
• A- Alert and Accountable
• R- Reliable and Responsive
• T- Tech-savvy and Trained

Strengthen Human Rights Training

Regular training should cover:

• Crowd de-escalation
• Gender sensitivity
• Human rights standards
• Constitutional values

Conclusion

The right to protest is an indispensable pillar of India’s constitutional democracy, enabling citizens to peacefully express dissent and hold governments accountable. At the same time, maintaining public order remains a legitimate constitutional responsibility of the State.

The Chalo Sansad episode underscores that restrictions on protests and police action must always satisfy the principles of legality, necessity, proportionality, transparency, and accountability.

Strengthening democratic policing through institutional reforms, independent oversight, modernization, and faithful implementation of Supreme Court directives is essential to ensure that public security and civil liberties reinforce, rather than undermine, one another.