Rights to Protest and the State’s authority to deny it

07 Aug Rights to Protest and the State’s authority to deny it

Posted at 07 Aug 2026 in Prelims facts, PSIR Optional by Bijendra Jha 0 Comments

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The Cockroach Janata Party led protest started on June 20 at the core of the city of Delhi which demanded resignation from the Union Education Minister Dharmendra Pradhan. The protest was led by Sonam Wangchuk, a noted scholar, innovator and educator from the Ladakh region along with young leaders like Abhijit Dipike, Surav Das and others. People from all parts of India supported this movement. However, some media houses described the movement as politically motivated and funded by India’s enemy. By July 20, 2020 movement swelled in unprecedented way and police and paramilitary forces (read the state) imposed section 163 of the Bhartiya Nyaya Samhita (BNS) and later the state brutally assaulted protesters with Lathi, pellet guns and tear gases along with stone pelting, chasing and other methods. The basic question is what is the right to protest, what are the obligations that a citizen should follow while exercising the right to protest, and what are key laws that empower the state to prevent such protest.

Is the right to protest available in the Constitution?

Although the right to protest is not mentioned in the Constitution yet citizens of India have the right to protest under Art. 19 (1) (a) gives the right to freedom of speech and expression and Art. 19 (1) (b) gives the right to assemble peaceably and without arms. It includes the right to hold public meetings, demonstrations and take out processions. This freedom can be exercised only on public land and the assembly must be peaceful and unarmed. This provision does not protect violent, disorderly, riotous assemblies, or one that causes breach of public peace or one that involves arms. This right does not include the right to strike.

However, these rights are not absolute and every right has a corresponding obligation. Rights provided by Art. 19 (1) (a) and Art.19 (1) (b) have reasonable restrictions imposed by Art.19(2) and Art. 19 (3). Article 19 (2) imposes reasonable restrictions on freedom of speech and expression on grounds like sovereignty and integrity of India., security of the state, friendly relations with foreign states, public order, decency and morality, contempt of court, defamation, incitement to an offence. Further, Art. 19(3) imposes restrictions on assembly in the interest of sovereignty and integrity of India, and public order. Therefore, the State can impose reasonable restrictions on the exercise of right of assembly on two grounds, namely , sovereignty and integrity of India and public order including the maintenance of traffic in the area concerned.

Under which law Authority is empowered to prevent assembly?

Section 189 of the Bharatiya Nyaya Sanhita (BNS) (replacing Section 141 of the former Indian Penal Code (IPC) ) defines and prohibits unlawful assembly, an assembly of five or more persons with a common illegal object. This section outlines various common objects that could make an assembly unlawful, such as using criminal force to overawe government or public servants, or to resist the law. Penalties for forming or participating in an unlawful assembly include imprisonment, fines, or both. Further, BNS 163 (the provisions that replaced Section 144 of the Code of the Criminal Procedure) empowers Executive Magistrates and District Magistrates to issue emergency orders—such as banning public gatherings or prohibiting the carrying of weapons—to maintain public peace, safety, and tranquility. The provision is designed as an emergency measure and such order remains in force for not more than two months unless extended according to the law.

Is protest including the CJP protest unlawful?

Indian democracy has seen many protests and movements like the J P movement that began with student protests in Gujarat and extended to Gujarat Nav Nirman Andolan to all India total revolution by Jay Prakash Narayan. This movement led to dethrone the Congress government. In the 21st century, the Anna Movement was one of the largest movements against corruption in the Government and demanded the institution of Lokpal and Lokyukta for accountability and transparency in the government. In the last one decade, India has witnessed several protests like farmers protest, protest against Citizenship Amendment Act, 2019 and now currently CJP protest and Sansad March is aiming to compel the government to take resignation from the Union Education Minister due to lapses in education system and systematic paper leak issues.

What was the government response?

The Government in the initial phase remained ignorant to the protest. But when it spread due to the joining of gen ‘Z’ (young students) and their supporters from all over India, the police authority issued a notice that no permission has been sought and we have not given any permission for the march in the city. In the middle of the 20th March, Police used tear gas and lathi charge on young students (protesters) to disperse protesters attempting to move towards the Parliament. The crackdown also included closing of metro stations and suspension of mobile networks to disrupt communication. Social media videos also show police molested young girls and treated them against human dignity. The authorities’ responses come under severe criticism by the general public, lawyers and celebrities. Meanwhile, mainstream media depicted protesters as people funded by India’s enemy and want to disrupt the peace, order and stability in the capital city.

What was the Judiciary response?

On June 21, when a lawyer approached the Supreme Court and requested to intervene by looking into videos circulated in social media. The Supreme Court responded that it has no time to look into videos and the Judge is not interested in such videos. However, the High Court sought repose from the Central government and Delhi police on brutality and excessive use of force.

How has the supreme court viewed protest movements in the past?

Over the years, the Supreme Court has laid guidelines for the right to protest of citizens and their obligation. The SC in Himat Lal K Shah v. Commissioner of Police (1973) held that while the state may regulate public gathering on streets but cannot impose an arbitrary exclusion that effectively deprives citizens of their right to assemble. Freedom of assembly is an essential element of any democratic system. In Anita Thakur v. State of Jammu Kashmir(2016), the Supreme court held that the use of excessive force against the citizen protesting against the government violates fundamental rights. The Court emphasised that the police action must be reasonable and accountable.

Against repeated issuance of the section 163 of the BNS (earlier Section 144 of the IPC), the Court elaborated on these principles in the MKSS v. Union of India (2018) case. The Case challenged the repeated issuance of section 144 orders prohibiting public meetings. The Court upheld the validity of section 144 as an emergency power but stressed that it could not become the permanent mechanism to prohibit protests.

Two years later, in Amit Sahni v. Commissioner of Police (2020), (which arose from the Shaheen Bagh Protest) the SC held that protests must be held in “identified areas” and protesters cannot block public roads and cause inconvenience to others. In Kaniz Fatima vs. Commissioner of Police, 2021, the Supreme Court upheld Shaheen bagh Judgement. Further the Court opined that the right to protest cannot be at any time and anywhere.