Right to protest in India: What the Constitution, laws and Supreme Court say

Chaos gripped central Delhi on Monday as thousands of people took part in the Cockroach Janta Party's (CJP) march towards Parliament, demanding the resignation of Union Education Minister Dharmendra Pradhan over the alleged NEET paper leak and other examination irregularities.

The protest, which saw clashes between demonstrators and police, has once again brought into focus a recurring question: What are the legal limits of the right to protest in India?

In another protest on Tuesday, thousands of farmers from Punjab, Haryana and several other states are heading to Delhi to attend a Kisan Mahapanchayat against the proposed India-US trade deal. The farmers allege that the agreement could severely hurt India's agriculture and dairy sectors.

Historical background

India is not alien to protests. In fact, India as a nation is cradled in a rich tradition of social and political transformation through protest, ranging from the historic march to Dandi in the Salt Satyagraha led by Mahatma Gandhi to Anna Hazare’s 2011 movement. The famous farmers' protest of 2020-21 led the government to withdraw the controversial agrarian laws.

Protest is a fundamental right in democracy, enabling citizens to register dissent, demand accountability and effect change in public policy.

The struggle for independence is embedded in India’s protest culture. From the Chipko movement for environmental conservation to the Mandal Commission's protests for caste-based reservations, the right to protest has been India’s democratic lifeline.

But the increasing use of repressive measures in recent protests has raised many questions. Is staging a protest legal in India? Which law governs protests?

What does the Constitution of India say?

This right to protest is guaranteed not only in the Constitution of India in article 19(1)(a) and (b), but it is also given in the form of a fundamental right under article 19(1)(a) and (b), and is the freedom of speech and assembly.

But these rights are subject to ‘reasonable restrictions’ in the interests of ‘the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.’

• Article 19(1)(a) enables citizens to criticise government actions and mobilise public opinion by guaranteeing freedom of speech and expression.

• Article 19(1)(b) safeguards the right to peacefully assemble without weapons, which is a tool to facilitate collective action as a democratic instrument.

• Article 19(2) and (3) renders these rights subject to 'reasonable restrictions' which allow circumscribing thereof, for instance, for the reasons of public order, sovereignty, security, decency or morality.

“Organised, non-violent and popular marches by the people of India were the key weapon in the struggle for independence. Naturally, the right to peaceful assembly has been recognised as a fundamental right by the Indian Constitution,” Pawan Kumar Badhe, India's representative at the 47th Session of the UN Human Rights Council in 2021, said in an official statement in response to the Special Rapporteur's report on the rights to freedom of peaceful assembly and association.

“While striking a careful balance between the enjoyment of basic rights by the citizens and its duty to protect the right to life of its citizens, the Government has always respected the right of Indian citizens to freedom of peaceful assembly and association,” he said.

How are protests regulated in India?

Usually, protests in India are regulated by designating designated spots, making police permission mandatory, and imposing prohibitory orders under Section 163 of the Bharatiya Nagarik Suraksha Sanhita (earlier Section 144 of the CrPC).

The Unlawful Activities (Prevention) Act (UAPA) has been invoked in several cases involving activists and protesters, though its application in such cases has been widely debated and challenged.

What has the Supreme Court said?

The Supreme Court, in various verdicts over the years, has upheld both the right to protest and the restrictions on that right.

In the famous Himat Lal K Shah v Commissioner of Police (1973), the Court held that freedom of assembly is an essential element of any democratic system. “At the root of this concept lies the citizens’ right to meet face to face with others for the discussion of their ideas and problems — religious, political, economic or social,” the court said.

In the Mazdoor Kisan Shakti Sangathan v Union of India, 2018, the Supreme Court laid down guidelines, including regulating the intended number of participants, the minimum distance from the Parliament House, the North and South Blocks, the SC itself, and the residences of dignitaries. The court also disallowed demonstrators from carrying firearms, lathis, spears, swords, etc.

This ruling reaffirmed Jantar Mantar as Delhi’s designated protest site, while making clear that regulation must not become prohibition.

Shaheen Bagh protests of 2020

In the case regarding the Shaheen Bagh protests in 2020, the Supreme Court held that protests must be held in ‘identified areas’ and protesters cannot block public roads and cause inconvenience to others.

“You cannot block public roads. There cannot be an indefinite period of protest in such an area. If you want to protest, it must be in an area designated for protests. You cannot create inconvenience for the people,” the court had said.

Taken together, the Constitution and Supreme Court rulings make it clear that the right to protest is a fundamental democratic freedom. However, that right is not absolute.

Law enforcement authorities may regulate the time, place and manner of protests to maintain public order, but such restrictions must be reasonable, proportionate and cannot amount to a blanket prohibition on peaceful dissent.