Right to Protest in India: Constitutional Safeguards and Legal Remedies

Right to Protest Latest News

• The Delhi Police recently denied permission to the Cockroach Janta Party (CJP) to protest at Jantar Mantar, citing short notice — the group had applied just three days before the march, against a required 10-day notice period. 
• The protest sought the resignation of Chief Election Commissioner Gyanesh Kumar over alleged irregularities in the Special Intensive Revision (SIR) exercise. 
• This episode brings back a recurring constitutional question: how far does the right to protest extend, and what can organisers do when police deny permission?

The Constitutional Right to Protest

• The right to protest flows from Article 19(1)(a) and 19(1)(b) of the Constitution:
  • Article 19(1)(a): Protects freedom of speech and expression.
  • Article 19(1)(b): Guarantees the right to assemble peacefully and without arms.
• However, neither right is absolute:
  • Article 19(2) permits restrictions on speech, including on grounds of public order.
  • Article 19(3) allows “reasonable restrictions” on peaceful assembly in the interest of public order.

Key Supreme Court Precedent

• Mazdoor Kisan Shakti Sangathan (2018): The apex court held that holding peaceful demonstrations is a fundamental right, essential for citizens to air grievances. 
• The Court found that authorities had failed to adequately regulate demonstrations and permitted a system of prior permission, to be sought from the Police Commissioner or a delegated authority.

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How the Permission System Works

• Delhi Police guidelines for protests at Jantar Mantar require:
  • Applications submitted to the Deputy Commissioner of Police (DCP), ordinarily at least 10 days before the event.
  • Late applications “may also be considered” depending on space availability and time for arrangements — the 10-day rule is not an absolute bar.
  • Applications assessed on a “first-come, first-serve” basis, reviewed by the Special Branch, traffic police, and New Delhi district police.
  • The DCP weighs whether the protest could obstruct traffic, endanger safety, or disturb public tranquillity.
  • Permission may be revoked for unforeseen reasons (VIP security, intelligence inputs), but reasons must be recorded and conveyed to organisers.
  • Protests are capped at 1,000 people at Jantar Mantar; larger gatherings must shift to Ramlila Ground (capacity: 50,000).
• Experts noted that the permission mechanism is meant to be facilitative, not prohibitive.

Recourse When Permission Is Denied

• Step 1 — Approach Police Again: Organisers can seek reconsideration, respond to the stated reasons, or propose a smaller gathering, shorter duration, or alternative venue.
• Step 2 — No Formal Appeal Exists: The DCP’s decision is “final and binding” under the standing order — there is no built-in appeal against refusal (as distinct from revocation, which requires recorded reasons).
• Step 3 — Judicial Remedy: If refusal appears arbitrary, unsupported by guidelines, or inconsistent with the right to peaceful assembly, organisers can approach the Delhi High Court under Article 226 of the Constitution.
• Consequences of Defying Denial: Protesting despite denial can attract Section 223 of the Bharatiya Nyaya Sanhita (BNS) (formerly Section 188 IPC) — disobeying a lawful order by a public servant, inviting imprisonment or fine. 
  • However, this must be read alongside the constitutional right to protest; the absence of a genuine alternative venue could be challenged as an unreasonable restriction.

Prohibitory Orders: A Separate Legal Track

• A prohibitory order is a magistrate’s order barring specified activities (e.g., assembly of five or more persons) under Section 163 of the BNSS (earlier Section 144 CrPC).
• Remedies against such orders:
  • Section 163(5): An aggrieved person can apply to the issuing magistrate to rescind or alter the order.
  • Section 163(7): The magistrate must give the applicant an early opportunity to be heard; if rejected, reasons must be recorded in writing.

Key Judicial Precedents

• Babulal Parate v. State of Maharashtra (1961): Constitution Bench held affected persons have a right to challenge such orders, even if passed without a hearing.
• Ramlila Maidan Incident (2012): The Court held that preventive orders must be based on “actual and prominent threat” to public order, and the power must be exercised with “great caution and free from arbitrariness.”
• Mazdoor Kisan Shakti Sangathan (2018): Reaffirmed that permission requirements cannot become a tool to reject every protest. In the Court’s words: “Total extinction is not balancing.”

The Core Legal Tension

• Legal experts argue that blanket restrictions without offering an alternative venue amount to a constitutional violation. 
• They emphasised that any alternative location must be in the vicinity of those in authority — protest sites far from decision-makers defeat the purpose of dissent. 
• Blocking without providing an alternative is illegal, he argued, even when done under Section 163.

Source: IE