Lessons on the right to assembly

Why in the News

Protesters in Delhi have demanded the Chief Election Commissioner’s resignation over the large-scale exclusion of voters in the Special Intensive Revision (SIR), a fresh revision of electoral rolls. The state has met them with heavy police and military deployment, which raises the question of whether the state is regulating the right to assemble peaceably or suppressing it.

What does the right to assembly protect?

1. What it is: Article 19(1)(b) guarantees all citizens the right to assemble peaceably and without arms. It sits beside Article 19(1)(a), free speech and expression, since a protest is shared public expression.
2. Limits on state action: Fundamental rights operate as limits on state action. Every democracy carries a tension between the exercise of rights and the state’s authority.
3. Permitted restrictions: Under Article 19(3), the state may make a law imposing reasonable restrictions on assembly in the interests of sovereignty and integrity or public order.
4. Legacy of protest: Rallies and demonstrations have a rich legacy in India, from the independence movement to agitations by trade unions, farmers and social activists.
5. The takeaway: Protest is a right the state may regulate but not deny, so every restriction must meet the test of Article 19(3).

How has the state’s response gone beyond regulation?

1. Preventive law: Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the old Section 144, was invoked just before the protests. It lets the executive remove persons to protect public tranquillity.
2. Disproportionate force: Peaceful protesters faced disproportionate force and long detentions without disclosure of their whereabouts. Many were denied access to lawyers or necessities.
3. Deportation notices: Overseas Citizens of India (OCI) cardholders who joined the protests received deportation notices.
4. Chilling effect: Together these measures create a chilling effect, where people stop speaking or assembling for fear of consequences.

What have the courts said on regulating assembly?

1. Babulal Parate vs State of Maharashtra (1961): The Supreme Court refused to interfere with the predecessor of Section 163. It held that the provision is “attracted only in emergencies”.
2. Himmat Lal vs Commissioner of Police (1972): The Supreme Court held that reasonable regulation of assembly differs from arbitrary exclusion. Reasonable ‘time, place and manner’ restrictions are permitted.
3. Open public spaces: The Court warned that closing all streets and parks to meetings would make open-air meetings impossible in any large city. A state monopoly on public places cannot defeat the right.

Why does the denotification of Jantar Mantar matter?

1. Accessible public places: Jantar Mantar has been denotified, which leaves it inaccessible as a protest site. The right to assembly needs accessible public places, and distant venues defeat a protest’s purpose.
2. Supreme Court direction: On October 9, the Supreme Court directed that ‘suitable alternative sites’ for protest be designated. It was hearing petitions against a blanket ban on transport into Delhi.
3. Delhi High Court challenge: The denotification is under challenge in the Delhi High Court. There, the Additional Solicitor General said it followed the Supreme Court’s earlier order.
4. No interim relief: The Supreme Court passed no interim orders in the cases challenging the denotification, so the site stays closed to protest.

Challenges

1. Wide executive discretion: Section 163 lets officials restrict gatherings on grounds as broad as public tranquillity.
2. Culture of suspicion: Questions on ‘permission’ or ‘funding’ treat protesters as passive recipients of state favour rather than rights-holders, a pre-democratic view.
3. Shrinking protest sites: With Jantar Mantar denotified, protesters lack an accessible central venue.
4. Pending challenges: With no interim orders, the denotification operates in full as the challenges to it remain pending.

Way Forward

1. Emergency-only use: The executive should invoke Section 163 only in emergencies, as Babulal Parate required.
2. Time, place and manner rules: Police should regulate protests through reasonable conditions instead of blanket bans.
3. Accessible alternative sites: Authorities should designate central and accessible protest sites, as the Supreme Court directed.
4. Safeguards in detention: Police should disclose detainees’ whereabouts and guarantee access to lawyers.

Conclusion

The right to assembly survives only if the state regulates protest instead of excluding it from public space. Whether the Supreme Court reconsiders the denotification of Jantar Mantar will show if it closes the gap between a constitutionalism that prioritises assembly and an executive conservatism that does not.

Matching Previous Year Question

“[2026, GS2, 10 marks] Right to privacy relating to self-identity is very dear to every human being and well protected under Article 21 of the Constitution. In this context, examine the effect of the amendment in 2026, to the Transgender Persons (Protection of Rights) Act, 2019.”