Right to Protest vs Public Order in India

Balancing Right To Protest With Public Order And Law

Why in the News ?

The recent “Chalo Sansad” protest in New Delhi, followed by clashes between protesters and the Delhi Police, has revived the debate on the constitutional right to protest, the scope of police powers, and the legal framework governing the use of force under the BNSS, 2023.

Right to Protest vs Public Order in India

Constitutional Right to Protest and Legal Framework

  • The Constitution of India guarantees every citizen the Right to Assemble Peacefully and Without Arms under Article 19(1)(b), making peaceful protest an essential feature of a democratic polity.
  • This right is not absolute and is subject to reasonable restrictions under Article 19(3) in the interests of public order, sovereignty and integrity of India, and other constitutional considerations.
  • Under the Bharatiya Nyaya Sanhita (BNS), 2023, an assembly of five or more persons becomes an unlawful assembly only when its common objective involves activities such as using criminal force, resisting lawful authority, committing offences, or intimidating others.
  • Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 empowers authorities to issue prohibitory orders restricting public gatherings to prevent disturbance of public peace.
  • The legality of any protest depends on the facts and circumstances of each case, including compliance with lawful conditions and whether the gathering remains peaceful throughout.

Police Powers, Human Rights and Judicial Oversight

  • The BNSS, 2023 authorises an Executive Magistrate or a designated police officer to order the dispersal of an unlawful assembly or an assembly likely to disturb public peace.
  • If such an assembly refuses to disperse, police may use force, but only when it is lawful, necessary, and proportionate to the situation.
  • The National Human Rights Commission (NHRC) and the UN Basic Principles on the Use of Force and Firearms emphasise that democratic policing must respect human rights, the rule of law, and the principle of minimum force.
  • The Code of Conduct for the Police in India requires police to first employ persuasion, warnings, and negotiation, resorting to force only as a last measure.
  • Allegations of police brutality, tear gas, lathi charge, and inadequate identification of personnel during crowd control underscore the need for greater accountability, transparency, and adherence to constitutional safeguards.

About Right to Protest & Supreme Court Judgments :

●  The Right to Protest flows from Article 19(1)(a) (Freedom of Speech and Expression), Article 19(1)(b) (Right to Peaceful Assembly), and Article 19(1)(c) (Right to Form Associations), subject to reasonable restrictions under Articles 19(2) and 19(3).

●  In Anita Thakur v. State of Jammu & Kashmir (2016), the Supreme Court held that excessive use of force by police violates fundamental rights and stressed the need for accountability and proportionality.

●  In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Court ruled that while authorities may regulate demonstrations in the interest of public order, they cannot completely prohibit peaceful protests.

●  In Amit Sahni v. Commissioner of Police (2020) (Shaheen Bagh Case), the Supreme Court held that dissent is a constitutional right, but public spaces cannot be occupied indefinitely, as the rights of other citizens must also be protected.

●  These judgments reinforce the principle that fundamental rights and public order must coexist, requiring both citizens and law enforcement agencies to act within the framework of the Constitution and the rule of law.