How Much Protest Is Too Much? Freedom, Restrictions and Public Order

Rights are not merely words; they are powers conferred upon the people by our Constitution. The rights to equality, freedom, protection against exploitation, religious freedom, cultural and educational rights, and the right to constitutional remedies make up the fundamental rights guaranteed under Part III of the Constitution. However, the extent to which the exercise of these rights can be considered excessive remains a pertinent question.

Protest serves as a form of self-expression, a means to communicate thoughts and grievances to the government, an effort to secure one’s rights, a plea for human rights, an opportunity for reconciliation with the government, a reflection on corruption, and an indication of deficiencies in governmental functioning. Article 19 of the Constitution guarantees the freedoms of speech and expression, peaceful assembly, association or unions, and free movement. Nonetheless, despite these constitutional protections, the exercise of these rights is subject to limitations, and protesters also face practical hazards such as police brutality, damage to public property, and assault, among others. Therefore, the enduring question is: to what extent can a protest be deemed acceptable before it becomes excessive?

II. Constitutional Basis of the Right to Protest

The Constitution of India, through Article 19, guarantees several essential freedoms to citizens, including the right to freedom of speech and expression. This provision enables individuals to freely express and communicate their views, opinions, and ideas through various mediums, such as writings, images, videos, and other forms of expression. Article 19 also protects the rights to assemble peacefully and without arms, to form associations or unions, and to move freely throughout the territory of India.

Article 19(1)(a)¹ protects the democratic way of life by allowing citizens to freely express and share their views and opinions with the public. Article 19(1)(b)² recognises the right of citizens to assemble peacefully and without arms, while Article 19(1)(c)³ guarantees the right to form associations or unions.

Although the Constitution does not expressly mention a separate “right to protest,” this right can be derived from the combined exercise of the freedoms guaranteed under Article 19(1)(a), Article 19(1)(b), and Article 19(1)(c). These provisions allow individuals to express their opinions and dissent collectively through peaceful demonstrations and protests.

A peaceful protest provides citizens with an opportunity to express their ideas, opinions, grievances, and concerns, and to hold the government accountable for its actions and policies. Such assemblies and demonstrations reflect the democratic spirit of the Constitution by allowing people to collectively raise their voices against perceived shortcomings in governmental policies and functions.

The right to protest, therefore, plays an essential role in a democratic society. It enables citizens to express dissent, participate in public discourse, and demand accountability from those in power. However, like other fundamental freedoms, the right to protest is not absolute and must be exercised within the constitutional framework, subject to reasonable restrictions imposed in the interest of public order and other legitimate concerns.

III. Is the Right to Protest an Absolute Right?

The exercise of individual rights is essential in a democratic society; however, freedom does not mean the absence of responsibility. Fundamental rights, including the freedoms guaranteed under Article 19 of the Constitution, are not absolute and are subject to reasonable restrictions.

Article 19(2)⁴ of the Constitution permits the State to impose reasonable restrictions on the exercise of the right to freedom of speech and expression under Article 19(1)(a). These restrictions may be imposed 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, contempt of court, defamation, and incitement to an offence.

The sovereignty and integrity of India allow the State to restrict speech or expression that threatens the unity, integrity, or sovereignty of the nation. Similarly, restrictions may be imposed in the interest of the security of the State where speech or expression poses a serious threat to the security or stability of the State.

Restrictions may also be imposed to protect friendly relations with foreign States. The ground of public order allows the State to regulate speech and expression where there is a proximate and direct connection between such expression and a potential disturbance to public order. Decency and morality permit restrictions on obscene or indecent forms of expression that may violate accepted standards of public morality.

Furthermore, the freedom of speech and expression cannot be exercised in a manner that amounts to contempt of court or unlawfully harms the reputation of another person through defamation. It also cannot be used to incite others to commit an offence.

Article 19(3)⁵ permits the State to impose reasonable restrictions on the exercise of the right to assemble peacefully and without arms under Article 19(1)(b), in the interests of the sovereignty and integrity of India and public order. Thus, the right to peaceful assembly does not prevent the State from regulating assemblies where such restrictions are legally justified to protect public order. However, such regulation must not be used arbitrarily to suppress peaceful and legitimate dissent.

Similarly, Article 19(4)⁶ permits reasonable restrictions on the right to form associations or unions under Article 19(1)(c) in the interests of the sovereignty and integrity of India, public order, and morality.

These constitutional restrictions demonstrate that the right to protest is not an unrestricted right. While citizens are entitled to express their opinions, assemble peacefully, and collectively voice their grievances, the exercise of these freedoms must not threaten public order, national security, or the rights and safety of others. At the same time, the existence of reasonable restrictions does not provide the State with unlimited authority to suppress dissent. The real constitutional challenge lies in maintaining a balance between the freedom to protest and the need to preserve public order.

IV. The Judiciary and the Right to Peaceful Protest

A citizen can be arrested for a great many things in India. However, peacefully standing at Jantar Mantar with a placard should not, in itself, be one of them.

The Supreme Court has repeatedly affirmed the importance of peaceful assembly in a democratic society. In In Re Ramlila Maidan Incident (2012) 5 SCC 1,⁷ the Court underscored the importance of peaceful assembly and freedom of expression while emphasising the State’s duty to maintain public order within the bounds of law.

In Himat Lal K Shah v Commissioner of Police, Ahmedabad (1973) 1 SCC 227, the Court held that the State may regulate public meetings but cannot arbitrarily prohibit peaceful assemblies and democratic expression.

In Mazdoor Kisan Shakti Sangathan v Union of India (2018) 17 SCC 324, the Court recognised the right to peaceful protest while emphasising the need to balance this right with public order and the rights and interests of other citizens. Reasonable regulations, therefore, cannot become a permanent prohibition on peaceful protests.

Similarly, in Amit Sahni v Commissioner of Police (2020) 10 SCC 439 (the Shaheen Bagh case),⁸ the Court held that while citizens have the right to peaceful protest, public spaces and roads cannot be occupied indefinitely in a manner that obstructs the rights and movement of others.

V. When Does a Protest Become “Excessive”?

Read together, these decisions suggest where the line lies. A protest may cross the line and become excessive when it turns violent or incites violence. The destruction of public or private property, whether through direct action or through speech that incites violence, cannot be justified as a legitimate exercise of the right to protest.

Similarly, indefinitely blocking roads by sitting on them, placing objects on public roads, or causing damage to such infrastructure may unreasonably interfere with the rights and movement of others. Blocking access to hospitals, schools, or other essential services and causing unnecessary hardship to the public may also exceed the legitimate limits of peaceful protest. A protest may further become excessive when it results in the violation of the fundamental rights of others, involves the unlawful occupation of public spaces instead of designated protest areas, or creates a genuine threat to public order or the security of the State through the use or presence of weapons during an assembly or protest.

VI. The Role of the State: Regulation or Suppression?

The State has a duty to regulate protests lawfully and not to suppress them. Under the law, the police have a duty to maintain public order and protect the safety and rights of citizens. The excessive use of force against protesters can erode public trust; therefore, any use of force must be lawful, necessary, and proportionate to the circumstances.

Restrictions imposed on protests must also be reasonable and proportionate. Identification and accountability are equally necessary. The Bharatiya Nagarik Suraksha Sanhita, 2023⁹ requires police personnel making an arrest to wear clear, accurate, and visible identification.

The State cannot use “public order” merely as a reason to silence criticism or unpopular dissent. There must be a careful balance between the rights of protesters to express their views and the rights of the general public to safety, movement, and access to essential services.

VII. Conclusion

A protest does not become excessive merely because the voices of the people grow louder; it becomes excessive when the exercise of freedom of speech and expression turns violent or incites violence. Unlawful actions against public or private property, the obstruction of roads, hospitals, schools, and essential services, and the violation of the fundamental rights and safety of others may exceed the legitimate limits of peaceful protest.

At the same time, the State has a responsibility to maintain public order through lawful means while avoiding the excessive use of force. As the Supreme Court has consistently recognised, public order should not become a convenient tool for silencing dissent or suppressing unpopular opinions. In a constitutional democracy, both protesters and the State must act within the boundaries of law, necessity, and proportionality.

Footnote(S):

¹ Protect the freedom of speech and expression.

² Guarantees the right to assemble peacefully and without arms.

³ To form an association or union.

⁴ Reasonable restriction on freedom of speech and expression.

⁵ Reasonable restriction on exercise to assemble peacefully without arms.

⁶ Reasonable restriction to form an association or union.

⁷ Hon’ble Supreme court emphasized the importance of peaceful assembly in a democratic society.

⁸ The supreme court held that public spaces and roads can’t be occupied indefinitely.

⁹ Section 36, Bhartiya Nagarik Suraksha Sanhita, a police officer making an arrest must wear clear, accurate and visible identification.

Reference(S):

Legislation

• Constitution of India 1950, arts 19(1)(a), 19(1)(b), 19(1)(c), 19(2), 19(3) and 19(4).
• Bharatiya Nagarik Suraksha Sanhita 2023, s 36.

Cases

• Amit Sahni v Commissioner of Police (2020) 10 SCC 439.
• Himat Lal K Shah v Commissioner of Police, Ahmedabad (1973) 1 SCC 227.
• Mazdoor Kisan Shakti Sangathan v Union of India (2018) 17 SCC 324.
• In Re Ramlila Maidan Incident (2012) 5 SCC 1.

Online Legal Sources

• Supreme Court of India, Amit Sahni v Commissioner of Police (2020), official judgment.
• India Code, The Bharatiya Nagarik Suraksha Sanhita, 2023, s 36, official text of the BNSS.