Context: Restrictions imposed in Delhi amid protests demanding the resignation of Chief Election Commissioner Gyanesh Kumar have reignited debate over the right to peaceful assembly, preventive policing, prohibitory orders, detentions and proportionality of State action.
Constitutional Basis of the Right to Protest
Article 19(1)(a): Guarantees freedom of speech and expression.
Article 19(1)(b): Guarantees the right to assemble peacefully and without arms.
Articles 19(2) and 19(3): Permit reasonable restrictions on these freedoms on constitutionally specified grounds, including public order.
Key principle: The right to protest does not confer an unrestricted right to assemble at any place, at any time or under any conditions. However, the State cannot prohibit peaceful assemblies altogether.
Can the State Restrict a Peaceful Protest Without Prior Permission?
Regulation vs prohibition: In Himat Lal K. Shah v. Commissioner of Police (1973), the Supreme Court held that public meetings in streets may be regulated, but the State cannot exercise an arbitrary power to prohibit all assemblies.
Balancing competing interests: In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Court rejected a blanket ban on protests at Jantar Mantar and directed authorities to establish a regulatory mechanism balancing protesters' rights with residents' and commuters' interests.
Permission requirements: Authorities may regulate protests through lawful permission requirements and conditions, but restrictions must be justified and proportionate.
Preventive Policing: Legal Basis and Limitations
Section 168, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023: Provides police with the power to prevent cognisable offences.
Anticipatory action: Police need not always wait for violence to occur; preventive action may be justified when credible information indicates a genuine threat.
Limits on discretion: Past violence at a protest does not automatically justify prohibiting every subsequent gathering. Restrictions must consider the specific circumstances, anticipated danger and necessity of the proposed measures.
Judicial safeguards: In Madhu Limaye v. Sub-Divisional Magistrate (1970), the Supreme Court emphasised the urgency and gravity required for exercising extraordinary preventive powers under the predecessor of Section 163 of the BNSS.
Anuradha Bhasin v. Union of India (2020): The Court held that preventive restrictions must satisfy constitutional requirements of necessity and proportionality.
Section 163 of the BNSS: Prohibitory Orders
Purpose: Section 163 empowers specified Executive Magistrates to issue urgent orders to prevent obstruction, danger to human life or safety, public disturbances, riots and similar threats.
Extraordinary power: Such orders must address an urgent situation and should not become a routine mechanism for restricting peaceful assembly.
Constitutional concern:Blanket or excessively broad orders may suppress legitimate democratic expression if less restrictive measures could adequately address the threat.
Supreme Court’s Intervention in the Delhi Protests
Review of restrictions: The Supreme Court intervened against restrictions surrounding the protests, emphasising the importance of free movement and lawful policing.
Transport restrictions: Delhi Police cited concerns about protesters using transport networks to reach sensitive areas. Indian Railways reportedly cancelled 245 trains originating from or terminating in Delhi, while Delhi Metro imposed restrictions.
Proportionality concerns: The article questions whether restrictions affecting large numbers of ordinary commuters were necessary when targeted measures, such as crowd caps, selective access restrictions and additional security, might have addressed the risks.
Sensitive locations:Parliament, Rashtrapati Bhavan, Central Vista and the Supreme Court lie within a relatively small area of central Delhi, requiring authorities to balance security requirements with the right to protest.
Judicial scrutiny: The Supreme Court's proportionality approach requires authorities to justify whether restrictions were necessary and whether less restrictive alternatives were available.
What Is the Proportionality Test?
Meaning: The State must demonstrate that a restriction pursues a legitimate objective, is suitable and necessary to achieve it, and does not impose excessive harm relative to the public interest served.
Application to protests: Instead of indiscriminately restricting transport or movement, authorities should consider targeted security arrangements, designated protest locations, crowd limits and restrictions on specific routes where necessary.
Judicial role: Courts can review whether restrictions are legally justified, necessary and proportionate, without taking over the operational responsibilities of the police.
Key Supreme Court Judgments
Himat Lal K. Shah (1973): Public assemblies can be regulated, but arbitrary prohibition is impermissible.
Mazdoor Kisan Shakti Sangathan (2018): Rejected a blanket prohibition on protests at Jantar Mantar and favoured a balanced regulatory framework.
Anuradha Bhasin (2020): Restrictions affecting fundamental rights must satisfy necessity and proportionality requirements.
Way Forward
Targeted preventive policing: Base restrictions on credible threats and specific circumstances rather than generalised assumptions about protesters.
Proportionate security measures: Prefer selective access controls, crowd management and route regulation over sweeping restrictions affecting ordinary citizens.
Protect peaceful assembly: Establish transparent rules for protest permissions and provide suitable demonstration spaces.
Strengthen accountability: Ensure that prohibitory orders and police actions are reasoned, time-bound where appropriate and open to judicial review.
Conclusion: The central challenge is to balance public order with democratic freedoms. Preventive policing is legally permissible, but its legitimacy depends on necessity, proportionality and accountability. A constitutional democracy must protect peaceful dissent while addressing genuine security threats through the least restrictive effective measures.
Prelims Question
Q1. Consider the following pairs relating to Supreme Court judgments and constitutional principles:
Case
Principle associated with the judgment
1. Himat Lal K. Shah v. Commissioner of Police (1973)
State regulation of public meetings cannot become an arbitrary prohibition.
2. Madhu Limaye v. Sub-Divisional Magistrate (1970)
Exercise of extraordinary prohibitory powers requires attention to the urgency and gravity of the situation.
3. Mazdoor Kisan Shakti Sangathan v. Union of India (2018)
Blanket prohibition on demonstrations should be preferred over regulation to protect public convenience.
4. Anuradha Bhasin v. Union of India (2020)
Restrictions affecting fundamental rights must satisfy applicable constitutional requirements, including proportionality.
How many of the pairs given above are correctly matched?
(a) Only one
(b) Only two
(c) Only three
(d) All four
Answer: (c)
Explanation:
Pair 1 is Correct: The State may regulate public meetings, but its discretion cannot be arbitrary or extinguish the constitutional right.
Pair 2 is Correct: Madhu Limaye examined the exceptional nature of Section 144 of the former CrPC and the circumstances warranting its use.
Pair 3 is Incorrect: Mazdoor Kisan Shakti Sangathan favoured balancing competing interests through regulation rather than imposing a blanket prohibition on protests at Jantar Mantar.
Pair 4 is Correct: Anuradha Bhasin addressed restrictions on fundamental rights, including the need for proportionality and review of restrictions affecting internet services.
