The right to protest and the limits of police power

Why in the News

The Cockroach Janta Party’s (CJP) “Chalo Sansad” march at Jantar Mantar on July 20, demanding reforms in the National Testing Agency (NTA) and the Union Education Minister’s resignation, ended in tear gas and lathi charges after protesters attempted to march towards Parliament. The clashes reopened the question of how a democracy polices protest, testing where a constitutionally protected right to assemble ends and lawful police power to disperse begins.

Is the right to protest absolute?

1. Constitutional guarantee: Article 19(1)(b) of the Indian Constitution guarantees all citizens the Fundamental Right to assemble peaceably and without arms. This includes the right to hold public meetings, demonstrations, and take out processions, forming the constitutional basis for peaceful protests.
2. Reasonable restrictions permitted: Article 19(3) allows reasonable restrictions on this right in the interests of public order and the sovereignty and integrity of India.
3. Restrictions implemented through statute: These restrictions operate through laws governing public order and policing rather than through Article 19 directly.
4. No single governing law: The legal authority to regulate protests is drawn from a range of statutes, not one dedicated law.

Was the CJP march unlawful?

1. Bharatiya Nyaya Sanhita (BNS) test for unlawful assembly: Under the Section 189 of the Bharatiya Nyaya Sanhita (BNS), 2023, an assembly of five or more persons becomes unlawful only if its common object involves using criminal force, resisting the execution of law, committing an offence, or compelling a person by force or threat.
2. Lawful assemblies can turn unlawful: A gathering that begins lawfully can become unlawful if its conduct changes during the event.
3. No permission sought: Delhi Police said the CJP had not sought permission for a procession to Parliament.
4. Prohibitory order in force: Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) barred protests, marches and demonstrations in the New Delhi district, except at the designated Jantar Mantar site with prior permission.
5. Judicial scrutiny followed: The Delhi High Court has sought responses from the Centre and Delhi Police on petitions alleging police brutality and excessive force.

What standards and limits govern police use of force?

1. Democratic policing standard: The National Human Rights Commission (NHRC) Manual on Human Rights for Police Officers states that democratic policing treats police as protectors of citizens’ rights and the rule of law, while ensuring safety and security equally for all.
2. Cost of violations: The manual notes that human rights violations by police erode public confidence, bring institutions into disrepute, and can escalate civil unrest.
3. Global standard on force: These principles align with the United Nations (UN) Basic Principles on the Use of Force and Firearms, which require force to be lawful, necessary and proportionate.
4. Statutory dispersal power: Under the BNSS, an Executive Magistrate or an authorised police officer may order an unlawful assembly, or one likely to disturb public peace, to disperse, and may use force if it does not comply.
5. Minimum force standard: The Code of Conduct for the Police in India requires persuasion, advice and warning first, and only the irreducible minimum force once force becomes inevitable.
6. Identification gap: The BNSS requires an arresting officer to bear accurate, visible identification but imposes no corresponding requirement on officers engaged in crowd control or dispersal, even as videos from the march showed personnel without name tags or with faces covered.

How has the judiciary drawn the line, then and now?

1. Anita Thakur v. State of Jammu & Kashmir (2016): The Supreme Court held that excessive force violates Fundamental Rights and awarded compensation to injured protesters, holding that police action must remain reasonable and accountable.
2. Mazdoor Kisan Shakti Sangathan v. Union of India (2018): The Court held that authorities may regulate demonstrations to maintain public order but cannot extinguish the right to protest altogether.
3. Amit Sahni v. Commissioner of Police (2020): Arising from the Shaheen Bagh protests, the Court affirmed that dissent is a constitutional right but cannot justify the indefinite occupation of public spaces.
4. Present reluctance: Chief Justice of India Surya Kant orally declined a plea for suo motu cognisance of the alleged police excesses, saying the Court was “not interested in videos” and should not have its time wasted.

Conclusion

The right to assemble under Article 19(1)(b) is not absolute, and police may lawfully disperse an assembly that turns unlawful or defies a prohibitory order, but the force used must remain the minimum necessary and be accountable. The CJP crackdown exposed a specific accountability gap: the BNSS requires arresting officers to display identification but imposes no such requirement on personnel engaged in crowd control, a gap the courts’ existing case law on excessive force does not close, even as the Supreme Court itself declined to examine video evidence of the incident.

PYQ Relevance

[UPSC 2022] Right of movement and residence throughout the territory of India are freely available to the Indian citizens, but these rights are not absolute. Comment.

Linkage: The PYQ highlights that Fundamental Rights are subject to reasonable restrictions. This is conceptually very close because the article explains that the right to assemble peacefully is also not absolute and may be reasonably restricted under Article 19(3) for public order.