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Subject: Fundamental Rights and Duties

  • Protecting protest: on mass protests

    Why in the News?

    The Supreme Court is hearing petitions on alleged excessive police force during recent protests, while the CJI’s remarks on protests requiring due permission have sparked debate. The case has also revived the question of whether public inconvenience caused by peaceful protests should be conflated with violence, and the need for a national protocol on crowd-control measures.

    Why does conflating inconvenience with violence weaken the right to protest?

    1. Legal standard blurred: Treating traffic disruption or public inconvenience as equivalent to violence lowers the threshold at which force can be used against a peaceful gathering.
    2. Judicial remark’s weight: A “due permission” framing from the Chief Justice of India carries institutional weight that can shape how lower courts and police read the limits of Article 19(1)(b), the right to assemble peaceably.
    3. Precedent tension: Existing case law distinguishes disruptive but peaceful assembly from violent assembly, and collapsing that distinction narrows the constitutional space for protest.

    What does the absence of a national crowd control protocol expose?

    1. No uniform threshold: Without a national protocol, the force threshold used against protestors varies by state and by individual police commander’s judgment.
    2. Accountability gap: No standard mechanism currently holds police accountable for disproportionate force used to disperse a protest deemed merely inconvenient.
    3. Comparative absence: Other democracies operationalise proportionality standards for crowd control through documented use of force continuums, a structure India’s policing framework lacks in codified form.

    Conclusion

    Peaceful protests that cause public inconvenience should not be treated the same as violent acts. A national crowd-control protocol with clear rules on the use of force and strong accountability can help protect both the right to protest and public order.

    Back2Basics

    The right to protest in India is an implied fundamental right derived from Article 19(1)(a) (freedom of speech and expression) and Article 19(1)(b) (freedom to assemble peaceably and without arms) of the Constitution of India.

    Constitutional Basis and Rules

    1. No Absolute Right: Protests must remain completely peaceful and unarmed.
    2. Reasonable Restrictions: Under Articles 19(2) and 19(3), the state can limit protests to protect the sovereignty and integrity of India, security of the state, and public order.
    3. No Blocking Roads: The Supreme Court has ruled that public ways and spaces cannot be permanently blocked or occupied, balancing protester rights with public movement.

    Legal Obligations and Permissions

    1. Prior Permission: Organizers must generally seek local police or municipal permissions to hold public gatherings or marches.
    2. Designated Spaces: Authorities often restrict demonstrations to specific assigned areas (like designated grounds or parks) to prevent traffic and safety hazards.
    3. Police Action Limits: Courts maintain that mere assembly or peaceful agitation does not justify excessive police force or lathi-charges.

    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 tests the scope of Fundamental Rights under Article 19 and reasonable restrictions. The editorial examines the limits of the right to peaceful protest under Article 19, and whether restrictions on protests satisfy the test of proportionality.

  • 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.

  • What is the right to be forgotten? 

    Why in the News?

    The Delhi High Court, ruling on 29 May 2026 in Laksh Vir Singh Yadav v. Union of India, laid down India’s first structured proportionality test for the right to be forgotten. The ruling forces a direct reckoning between an individual’s right to informational privacy and the constitutional commitment to open justice and free speech.

    How did the right to be forgotten emerge, and why did Indian courts arrive at it inconsistently?

    1. Origin in EU jurisprudence: The right originated in 2014 when Mario Costeja González complained to the European Court of Justice that Google continued to display an old notice about the auction of his repossessed house even after the debt was settled.
    2. Codification in General Data Protection Regulation (GDPR): The European Court ruled in his favour. This laid the groundwork for the right to erasure, later incorporated into Article 17 of the EU’s General Data Protection Regulation.
    3. Constitutional anchor in India: The Supreme Court’s judgment in K.S. Puttaswamy v. Union of India (2017) held that privacy is a Fundamental Right under Article 21 of the Constitution of India. This includes the right to informational privacy.
    4. Divergent High Court practice: High Courts adopted inconsistent approaches after Puttaswamy. Some permitted anonymisation in limited cases, such as the Delhi High Court’s masking of names in certain matrimonial and criminal matters.
    5. The unresolved gap: Other courts rejected similar requests on grounds of open justice. No coherent framework existed to balance these competing interests before the May 2026 judgment.

    What test did the Delhi High Court lay down, and what does it require?

    1. The core issue: The Delhi High Court ruled on a batch of over 30 consolidated petitions. The central question was whether informational privacy could justify de-indexing or masking judicial records in a system committed to open justice.
    2. Constitutional source of the right: The court held that the right to be forgotten flows from Article 21’s guarantee of dignity and informational privacy.
    3. The proportionality test: Any restriction must have a legitimate purpose. The harm to privacy must be balanced against the public interest.
    4. Preference for the least intrusive means: Masking names should be preferred over deleting the entire judgment.
    5. Procedural direction: The court prescribed a two-week deadline for legal databases to comply. It clarified that only the parties’ names should be redacted, not the facts of the case.

    Why does the right to be forgotten sit in tension with open justice and free speech?

    1. Not a stand-alone right: The right to be forgotten frequently conflicts with freedom of speech and press under Article 19(1)(a), the principle of open justice, and the public’s right to know.
    2. A high threshold for privacy: A right to privacy must be sacrificed when the public interest is of a high order, particularly in serious cases of crime.
    3. The limiting principle: The digital presence of a case should not destroy a person’s life long after the trial ends.
    4. Selective, not absolute, restriction: Judgments remain publicly accessible by case number or keyword search. Only name-based searches are restricted.
    5. The unresolved concern: For an acquitted person, a name-based search can still surface the original accusation, described as the “shadow of crime,” as the first result a user sees.

    Why does enforcement remain the weakest link in this framework?

    1. Search engine design defeats masking: Search results are still generated at the search-engine level. Removing a court’s own copy does not remove all traces.
    2. Persistence beyond the primary source: Mirrors, archived copies, and social media sharing keep the original content accessible even after a court orders removal.
    3. No coordination mechanism: Effective technical compliance requires coordination among multiple platforms. No such mechanism currently exists.
    4. Consequence for the right’s value: Without platform-level compliance, the right to be forgotten remains largely symbolic rather than enforceable.

    What is the statutory basis for erasure under the Digital Personal Data Protection Act, 2023 (DPDP Act), and why is it inadequate for judicial records?

    1. Limited existing statutory right: The Digital Personal Data Protection Act, 2023 offers a limited right to erasure under Section 12.
    2. Consent-based design: This statutory right is primarily based on consent. It does not explicitly address judicial records.
    3. Scope gap: The Act does not cover public archives, where the need for a right to be forgotten is most acute.
    4. Non-operational status: The Act is deficient because its rules have not been notified.
    5. Missing institution: The data protection board contemplated under the Act has not been established.

    Who should decide erasure requests, and how should that authority be structured?

    1. The efficiency-accountability trade-off: Requiring every request to be decided by a court would create significant bottlenecks. Leaving decisions entirely to technology companies raises concerns about due process and transparency.
    2. A tiered proposal: A more sensible approach would use a tiered system.
    3. First tier: platforms: Straightforward cases could be heard directly by platforms.
    4. Second tier: data protection board: Contested cases would go to the data protection board.
    5. Third tier: courts: Judicial cases, including those with constitutional questions, would be reserved for courts.

    Conclusion

    The Delhi High Court’s ruling gives the right to be forgotten its most structured judicial articulation in India, subordinating deletion to name-masking to protect dignity without eroding open justice. This framework remains judge-made and non-statutory: the DPDP Act does not cover judicial records, the data protection board does not exist, and search engines retain wide discretion over technical compliance. Until the Supreme Court settles the doctrine nationally and a statutory institution is created to adjudicate erasure requests, the right to be forgotten in India will function more as a judicial aspiration than an enforceable entitlement.

    PYQ Relevance

    [UPSC 2024] Right to privacy is intrinsic to life and personal liberty and is inherently protected under Article 21 of the constitution. Explain. In this reference, discuss the law relating to D.N.A. testing of a child in the womb to establish its paternity.

    Linkage: The article similarly examines the Right to be Forgotten as an aspect of informational privacy under Article 21 and its balance with freedom of speech, the public’s right to know and the principle of open justice.

  • [3rd July 2026] The Hindu OpED: The right to a fair trial at the crossroads

    PYQ Relevance[UPSC 2023] The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a constitution made for a progressive society. Illustrate with special reference to the expanding horizons of the right to life and personal liberty.
    Relevance: The PYQ directly covers the expansion of Article 21, including the right to speedy trial, fair procedure and personal liberty. The editorial argues that prolonged incarceration without trial violates the evolving constitutional guarantee under Article 21.

    Why in the News?

    The Supreme Court denied bail to Umar Khalid and Sharjeel Imam in the 2020 Delhi riots case earlier this year, though they have been in pre-trial detention for nearly six years. This has renewed the question of how long an accused can be held without trial, and exposed inconsistency in how courts weigh delay against the gravity of the offence under the Unlawful Activities (Prevention) Act (UAPA), 1967. At stake is whether pre-trial incarceration under anti-terror law is becoming punishment before conviction.

    Why does prolonged pre-trial detention under the UAPA raise a constitutional question of personal liberty?

    1. Delay triggers Article 21 right: The Supreme Court’s own prior judgments hold that an extended trial delay triggers the accused’s right to personal liberty under Article 21.
    2. Statutory conditions cannot override the Constitution: The UAPA’s strict bail conditions cannot override the constitutional right to personal liberty.
    3. Gravity of offence remains an allegation: At the bail stage, the gravity of the offence is only an allegation made by the state, not a proven fact.
    4. Sliding scale of detention: Allowing gravity to override delay creates a sliding scale that keeps certain individuals in jail for years simply because they are accused of grave offences.
    5. Precedent of prolonged wrongful detention: Individuals accused under the UAPA have been held in jail for over two decades before being acquitted, losing the most productive years of their lives.

    Does weighing the gravity of the offence against delay protect due process, or does it convert the trial into the punishment itself?

    1. Judge controls the pace of trial: The judge, not the accused, controls the courtroom and decides the pace of the trial.
    2. Responsibility for delay rests with the judiciary: The judge bears the ultimate responsibility to complete a trial within a reasonable timeframe, regardless of applications filed by either side.
    3. Internal Court criticism: A separate two-judge Bench of the Supreme Court openly criticised the Delhi riots bail rejection as contrary to established precedent.
    4. Reaffirmation of the rule of law: The Bench reiterated that individuals cannot be incarcerated indefinitely without trial under a Constitution committed to the rule of law.
    5. Delay used as a proxy for guilt: Treating an unproven allegation of gravity as sufficient ground to override delay effectively punishes the accused before the trial concludes.

    Why does inconsistency across and within courts on UAPA bail undermine the rule of law?

    1. Referral to a larger Bench: In a related case, the Delhi riots Bench referred the question of how long pre-trial detention can continue to the Chief Justice, for the constitution of a larger Bench.
    2. Unresolved apex court debate: The Supreme Court is now debating whether individuals who have spent over half a decade in jail without trial should be released, and the question remains open even as detention continues to lengthen.
    3. Contrasting High Court rulings: The Delhi High Court granted bail to Kashmiri human rights activist Khurram Parvez after more than four years without trial, weighing the length of detention heavily.
    4. Same judge, opposite outcomes: The judge who granted Khurram Parvez bail had earlier denied bail in the Delhi riots case, where the accused had already spent over four years in jail.
    5. Same facts, different verdicts a year apart: In the Delhi riots case itself, the same judge delivered opposing bail judgments on the same underlying facts within a year.

    What limited international references does the article draw upon to illustrate this concern? 

    1. France, Dreyfus comparison: The article compares the over-five-year detention of the Delhi riots accused to the imprisonment of Captain Alfred Dreyfus, a French political prisoner, without detailing the length or process of the Dreyfus case itself.
    2. United Kingdom and United States, dissent conflated with terrorism: The article cites recent actions in the UK and US against dissent linked to the Israel-Palestine conflict as examples of states blurring political dissent with terrorism, without naming a specific law or institutional mechanism.

    Why does the political character of laws like the UAPA make judicial consistency especially critical?

    1. Political character of anti-terror law: Laws such as the UAPA carry an undeniably political character because they criminalise activities that can also constitute legitimate dissent.
    2. Global pattern of blurring dissent and terrorism: States across the world have repeatedly interpreted anti-terror laws in ways that blur the line between political dissent and terrorism.
    3. Consequence of inconsistency: Repeated inconsistency across cases and courts on a basic issue like pre-trial incarceration damages the rule of law and the cause of fundamental rights.

    What must the judiciary ensure to prevent laws like the UAPA from being weaponised?

    1. Non-negotiable constitutional floor: The state cannot keep people behind bars for years without trial, regardless of how legal interpretation is otherwise contested.
    2. Process as punishment: Allowing incarceration without trial to continue makes a mockery of the rule of law and entrenches the pre-trial process itself as the punishment.
    3. Pending resolution: It remains unclear whether or when the Supreme Court’s larger Bench will resolve the underlying question.
    4. Continuing cost: Umar Khalid and Sharjeel Imam remain in custody as the last two accused student activists in the Delhi riots case, with five years in prison having turned into six.
    5. Rising stakes: The cost of continued detention falls both on the lives of the imprisoned individuals and on the credibility of the rule of law.

    Conclusion

    Judicial inconsistency in weighing delay against the gravity of offence is allowing pre-trial detention under laws like the UAPA to function as punishment before conviction. This threatens the constitutional right to personal liberty under Article 21 and creates space for anti-terror law to be used against political dissent. Until the Supreme Court’s larger Bench settles the doctrine, cases such as that of Umar Khalid and Sharjeel Imam will continue to test the gap between the rule of law and its practice.

  • Discuss Section 66A of IT Act, with reference to its alleged violation of Article 19 of the Constitution.

  • What do you understand by the concept “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss.

  • Does the right to clean environment entail legal regulations on burning crackers during Diwali? Discuss in the light of Article 21 of the Indian Constitution and Judgement(s) of the Apex Court in this regard.

  • Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on Right to Privacy.

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

    “Liberty means freedom to do everything which injures no one else.” (French Declaration of the Rights of Man, 1789). The Right to Movement and Residence under the Indian Constitution embodies this idea of liberty.

    Constitutional Provision

    Article 19(1)(d) – Right to move freely throughout the territory of India.

    Article 19(1)(e) – Right to reside and settle in any part of India.

    However, it is not absolute as

    Reasonable Restrictions under Article 19(5) – interests of the general public or for the protection of Scheduled Tribes.

    Protection of Scheduled Tribes – Restrictions in 5th and 6th Schedules safeguard traditional culture, property rights, and protect tribes from exploitation by outsiders.

    Security of State – Eg – Restrictions under AFSPA in disturbed regions.

    Public Order – Curfews, preventive detention, or restrictions during riots.

    Judicial Endorsement – Eg – State of UP v. Kaushailiya (1964) upheld restrictions on movement of prostitutes to protect public health and morality.

    Pandemic Situations – During COVID-19 lockdowns, freedom of movement was restricted to control spread of the virus.

    Inner Line Permit (ILP) – Required in certain north-eastern states; prior approval of state government needed to protect local interests.

    Foreigners – Can be deported for violating rules, even though citizens enjoy freedom of residence.

    “Liberty is not a license, but is regulated freedom.” Ensuring individual liberty while safeguarding collective interests reflects balanced constitutionalism.

  • ”The Constitution of India is a living instrument with capabilities of enormous dynamism. It is a constitution made for a progressive society”. Illustrate with special reference to the expanding horizons of the right to life and personal liberty.

    A Living Constitution rejects rigid textualism and evolves with time to meet the changing needs of society while upholding core constitutional values. According to Woodrow Wilson, Constitution must be Darwinian in structure and in practice.

    Dynamism of Indian Constitution

    Expanding Interpretation of Fundamental Rights. Eg- Right to internet access

    Judicial Doctrines – Eg- Basic Structure Doctrine (Kesavananda Bharati, 1973)

    Democratic and Federal Evolution through constitutional amendments (over 100 so far)

    Constitution made for Progressive Society

    Social Justice – Abolition of untouchability (Article 17), reservation policies

    Gender Equality – Guarantees of equal rights (Articles 14-16)

    Political equality – Universal Adult Franchise

    Vision for a welfare state – Article 39(b)(c) (equitable distribution of resources) and Article 45 (free and compulsory education).

    Secularism & Fraternity – Promotes unity in diversity, preventing majoritarian domination while protecting minority rights.

    Expanding Horizons of Right to Life and Personal Liberty (through SC judgments)

    Right to Livelihood – Recognised in Olga Tellis v. Bombay Municipal Corporation (1985), linking livelihood to dignity of life.

    Right to Education – Unni Krishnan v. State of Andhra Pradesh (1993) paved way for RTE Act, 2009.

    Right to Clean Environment – Subhash Kumar v. State of Bihar (1991) connected the environment with quality of life.

    Right to Health – In Paschim Banga Khet Mazdoor Samity (1996), SC held that the state must provide adequate healthcare.

    Right to Privacy – Justice K.S. Puttaswamy v. Union of India (2017) declared privacy intrinsic to personal liberty.

    Right to Die with Dignity – Common Cause v. Union of India (2018) legalised passive euthanasia.

    Right to Internet Access – Anuradha Bhasin v. Union of India (2020) recognised internet as essential for speech, trade, and education.

    Right to Marry a Person of Choice – Shafin Jahan v. Asokan (2018) upheld liberty in matters of marriage.

    Expanding Horizons of Right to Life and Personal Liberty (Through Amendments)

    44th Amendment Act (1978) – Imposed limitations on Emergency powers by ensuring that Articles 20 and 21 cannot be suspended even during a National Emergency.

    86th Amendment Act (2002) – Inserted Article 21A, making Right to Education (6-14 years) a fundamental right under Article 21.

    The Indian Constitution, through its dynamism, has transformed into a progressive charter of human rights. As Granville Austin remarked, the Constitution is a “social document aiming at transforming society through law.”