Right to protest in India: What the Constitution, laws and Supreme Court say
A protest march directed toward Parliament coincided with the opening of the Monsoon Session and led to clashes between demonstrators and the Delhi Police near a designated protest venue in the national capital.
The demonstration followed an extended hunger strike at the protest site; law enforcement removed the protester from the location citing health and public-order concerns.
Visuals of crowd-control measures, including baton use and tear gas, circulated widely, reviving public debate on the legal boundaries of peaceful assembly in India.
The episode has renewed scrutiny of the constitutional guarantee of assembly, the statutory power to impose prohibitory orders, and the judicially evolved rules on where and how protests may be held in Delhi.
Article 19(1)(b) — Right to Assemble Peaceably and Without Arms
Article 19(1)(b) of the Constitution guarantees all citizens the right "to assemble peaceably and without arms." Courts have read this to include public meetings, processions, and even hunger strikes, since the right to freedom of speech and expression under Article 19(1)(a) and the right to assemble are closely linked in the context of protest.
Key Details
- The right is available only to citizens, not to all persons (unlike Articles 14 and 21).
- Article 19(3) permits the State to impose "reasonable restrictions" on this right in the interests of the sovereignty and integrity of India or public order.
- Unlike freedom of speech under Article 19(2), the grounds for restricting assembly under Article 19(3) are narrower — limited to sovereignty/integrity and public order, and do not include grounds such as decency or morality.
- The right is not a right to assemble at any place or at any time; it is subject to regulation of time, place and manner.
The protest march and the subsequent police action sit exactly at this fault line — the constitutional guarantee of peaceful assembly under Article 19(1)(b) versus the State's reasonable-restriction power under Article 19(3) to preserve public order near Parliament.
Prohibitory Orders — Section 163, BNSS (successor to Section 144, CrPC)
Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which came into force on 1 July 2024, re-enacted the prohibitory-order power earlier found in Section 144 of the Code of Criminal Procedure, 1973. It allows a District Magistrate, Sub-Divisional Magistrate, or a specially empowered Executive Magistrate to issue orders in urgent cases of nuisance or apprehended danger, including restricting assemblies.
Key Details
- Orders under Section 163 BNSS can be issued for a maximum of two months (extendable up to six months by the State Government in specific circumstances), mirroring the earlier Section 144 CrPC limit.
- The power can be exercised ex parte in urgent cases, subject to later representation by affected persons.
- Section 163 explicitly extends to restricting the use of mass communication/electronic messaging for organising assemblies, a provision absent in the older Section 144.
- Areas around Parliament House and North/South Block in Delhi have historically seen repeated prohibitory orders restricting assembly, citing security concerns.
The clash near Parliament during the protest illustrates how Section 163 BNSS (the direct successor of the once-ubiquitous Section 144 CrPC) is the primary statutory tool used to regulate — and at times restrict — protests in sensitive zones of the capital.
Landmark Supreme Court Doctrine on the Right to Protest
Three cases define the current legal position on protest in India. In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad (decided 1972, reported AIR 1973 SC 87), the Supreme Court held that the State cannot impose a blanket ban on all public meetings on streets — it can only regulate time, place and manner in the interest of public order, and struck down a police rule that gave unguided discretion to refuse permission. In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Court examined repeated prohibitory orders under the then-Section 144 CrPC around Parliament Street and Jantar Mantar, holding that restrictions must be proportionate and cannot amount to a permanent, blanket prohibition on protest in the designated area. In Amit Sahni v. Commissioner of Police (2020) — arising from the Shaheen Bagh protests — a three-judge bench held that the right to protest, while fundamental, is not absolute, and public ways cannot be occupied indefinitely in a manner that infringes the rights of other citizens to move freely; protests must be confined to designated areas.
Key Details
- Himat Lal K. Shah (1972/73) — foundational case establishing assembly on public streets as a qualified right subject to reasonable, non-arbitrary regulation.
- Mazdoor Kisan Shakti Sangathan (2018) — reaffirmed Jantar Mantar's status as a designated protest site in Delhi and required proportionate, not blanket, restrictions.
- Amit Sahni v. Commissioner of Police (2020) — the "Shaheen Bagh case," holding indefinite occupation of public roads impermissible even for a constitutionally protected protest.
- Together, the three cases establish a doctrine of "regulated, not prohibited" assembly — protest is a right, but its exercise can be confined to time, place and manner restrictions that are proportionate to the public-order concern.
The current episode — a march toward Parliament during the Monsoon Session, ending in clashes near a historically designated protest site — is a direct real-world application of this three-case doctrine on how far the right to protest extends before it collides with public-order regulation.
- Article 19(1)(b): right to assemble peaceably and without arms; restrictable only on sovereignty/integrity and public order grounds under Article 19(3).
- Section 163, BNSS (2023) replaced Section 144, CrPC (1973) effective 1 July 2024; maximum initial duration of prohibitory order: two months.
- Himat Lal K. Shah v. Commissioner of Police: AIR 1973 SC 87, decided 1972.
- Mazdoor Kisan Shakti Sangathan v. Union of India: decided 23 July 2018.
- Amit Sahni v. Commissioner of Police: decided 7 October 2020, arising from the 2019–20 Shaheen Bagh protests against the Citizenship (Amendment) Act.
- Jantar Mantar has functioned as Delhi's judicially recognised designated protest venue since the 2018 Mazdoor Kisan Shakti Sangathan ruling.