Subject: GS 2: Polity & Governance
Context: The Cockroach Janta Party (CJP) protest march towards Parliament and the subsequent police action have revived the debate on the constitutional right to protest, its reasonable restrictions, and the balance between civil liberties and public order.
- The incident highlights the continuing constitutional debate over balancing Fundamental Rights under Part III with the State’s obligation to maintain public order under the police powers of the State (Entry 1, State List).
UPSC Online Preparation
What is the Right to Protest?
- The Right to Protest is a Fundamental Right derived from Article 19 of the Constitution. Although the Constitution does not explicitly mention the phrase “right to protest,” it flows from the combined reading of:
- Article 19(1)(a)
- Article 19(1)(b)
- Article 19(1)(c)
- Reasonable Restrictions under Article 19: The right is not absolute. The State may impose reasonable restrictions in the interest of:
- Sovereignty and integrity of India
- Security of the State, Public order, Friendly relations with foreign States
- Decency or morality
- Contempt of court Defamation Incitement to an offence
Thus, peaceful, non-violent protest is a constitutionally protected democratic right.
Constitutional Basis
| Article |
Provision |
| Article 19(1)(a) |
Freedom of speech and expression |
| Article 19(1)(b) |
Right to assemble peacefully without arms |
| Article 19(1)(c) |
Right to form associations |
| Article 21 |
Right to life and personal liberty (includes dignified democratic participation) |
Legal Framework Governing Protests
- Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
- Section 163 (Successor to Section 144 CrPC):
- Empowers Executive Magistrates to prohibit:
- Unlawful assemblies, Public gatherings, Processions and Activities likely to disturb public peace.
- Used to prevent:
- Riots
- Violence
- Communal tension
- Threats to public safety.
- Police Permission: Most states require prior permission for Public meetings, Rallies, Marches, Demonstrations, Use of loudspeakers.
- Permission helps regulate:
- Traffic
- Security
- Emergency services
- Public convenience
- Designated Protest Sites: Authorities usually earmark specific locations such as Jantar Mantar (Delhi), Ramlila Maidan and Azad Maidan (Mumbai)
- Purpose: Balance democratic rights with public order.
Landmark Judgements
| Supreme Court Judgment |
Issue |
Key Judgment |
Significance |
| Himat Lal K. Shah v. Commissioner of Police (1973) |
Regulation of public meetings and assemblies |
- Freedom of peaceful assembly is an essential feature of democracy
- Citizens have the Fundamental Right to assemble and express political, social, and economic views.
- The State may regulate the use of public spaces, but such regulation cannot become an arbitrary prohibition.
|
- Recognised the Right to Protest as a Fundamental Right.
- Established that government restrictions must be reasonable, fair, and non-arbitrary.
|
| Mazdoor Kisan Shakti Sangathan (MKSS) v. Union of India (2018) |
Challenge to repeated use of Section 144 CrPC around Parliament and Central Vista |
- The State must balance public order with democratic freedoms.
- Peaceful protests should be regulated—not prohibited
- Suggested measures such as limiting participants, maintaining distance from sensitive institutions, prohibiting weapons, and continuing designated protest sites like Jantar Mantar.
|
- Reaffirmed that reasonable regulation is constitutionally valid.
- Clarified that regulation should not become prohibition.
|
| Amit Sahni v. Commissioner of Police (2020) (Shaheen Bagh Case) |
Indefinite occupation of public roads during protests |
- Public roads cannot be blocked indefinitely.
- Protests should be held at designated places.
- Rights of commuters and other citizens must also be protected
- Fundamental Rights of protesters cannot extinguish the rights of others.
|
- Reinforced the need to balance competing Fundamental Rights.
- Clarified that peaceful protest is protected, but permanent occupation of public spaces is unconstitutional.
|
UN Position and India’s Stand
- At the 47th Session of the UN Human Rights Council (2021), India stated:
- Peaceful assembly is a cherished democratic tradition.
- Non-violent protests were central to India’s freedom struggle.
- The Constitution guarantees peaceful assembly.
- The State must balance:
- Freedom of protest
- Protection of life
- Public order
UPSC Coaching Classes
Issues in Regulation of Protests
- Frequent Use of Section 163 BNSS: Repeated invocation of Section 163 of the BNSS through prohibitory orders has raised concerns that preventive restrictions may disproportionately limit the fundamental right to peaceful assembly.
- Excessive Police Action: Allegations involving lathi charges, detentions, tear gas, and use of force have highlighted the need for policing that is lawful, proportionate, and rights-based.
- Permission Delays: Delays or denial of protest permissions without adequate transparency can undermine the fair and effective exercise of constitutional freedoms.
- Rights vs Public Order: Authorities must balance public order, security, and essential services with citizens’ rights to freedom of speech and peaceful assembly.
- No Uniform Framework: The absence of consistent national guidelines has resulted in varying standards for regulating protests across different States.
- Rising Digital Surveillance: Increasing use of CCTV, facial recognition, and digital monitoring has raised concerns regarding privacy, free expression, and civil liberties.
- Security–Freedom Balance: Governments face the challenge of ensuring national security and public safety without unnecessarily restricting peaceful democratic dissent.
Way Forward
- Promote Peaceful Protests: Protest organisers and participants should ensure demonstrations remain peaceful, lawful, and respectful of public property.
- Transparent Permissions: Governments should adopt clear, objective, and time-bound procedures for granting protest permissions.
- Proportionate Restrictions: Restrictions should be imposed only when necessary and must satisfy the constitutional principles of reasonableness and proportionality.
- Prioritise Dialogue: Authorities should encourage consultation and mediation with organisers before resorting to coercive measures.
- Strengthen Judicial Oversight: Courts should continue to review arbitrary prohibitory orders to safeguard constitutional rights and the rule of law.
- Develop Protest Spaces: Major cities should establish well-planned designated protest sites that facilitate democratic expression while minimising public disruption.
- Use Smart Management: Technology-enabled traffic control, crowd management, and public communication should be preferred over blanket bans.
- Protect Democracy: The State should uphold fundamental freedoms and public order through a balanced approach consistent with constitutional principles.
Conclusion
The right to peaceful protest is a cornerstone of India’s constitutional democracy, enabling citizens to participate in public affairs and hold governments accountable. While the right is subject to reasonable restrictions for public order and security, any regulation must remain fair, proportionate, and non-arbitrary, ensuring a balance between individual freedoms and societal interests.
Click to Explore UPSC Offline Coaching
Right to Protest in Other Countries
| Country |
Legal Basis |
Key Restrictions |
| United States |
First Amendment |
Permits for large protests; time, place, and manner restrictions. |
| United Kingdom |
Human Rights Act, 1998 (Article 11, ECHR) |
Restrictions to prevent serious disruption and maintain public order. |
| Germany |
Article 8, Basic Law |
Prior notification; no violent or armed assemblies. |
| France |
Constitutional principles |
Prior notification; protests may be restricted for public security. |
| Canada |
Canadian Charter (Section 2) |
Reasonable limits for public safety and order. |
| South Africa |
Section 17, Constitution |
Peaceful protests protected; violence and property damage prohibited. |
| Singapore |
Article 14, Constitution |
Police permit generally required; strict public order regulations. |
| China |
Article 35, Constitution |
Government approval required; strict regulation in practice. |
22 Jul 2026
