Right to Protest Explained: Article 19, Section 163 BNSS and Reasonable Restrictions

Fundamental right, not a separate Article: The Constitution does not name a distinct "right to protest". It is a composite right read out of Part III (Fundamental Rights), primarily from clauses of Article 19. When exercised peacefully, protest is a legitimate form of democratic expression protected by the Constitution.

Article 19(1)(a): This guarantees the freedom of speech and expression. The freedom to publicly voice one's views on the conduct of the government flows directly from this clause.

Article 19(1)(b): This guarantees the right to assemble peaceably and without arms. Public meetings, demonstrations, dharnas and marches are exercises of this right.

Article 19(1)(c): This guarantees the right to form associations or unions, enabling citizens and groups to collectively organise and challenge government decisions.

Link with Article 21: The right to life and personal liberty under Article 21 is relevant on both sides — it supports the dignity and liberty of protesters, and it also protects the rights of residents and commuters to peaceful movement and a healthy environment.

Rights are not absolute: The freedoms in Article 19(1) are subject to "reasonable restrictions" that the State may impose by law. This is the core constitutional principle balancing individual liberty against the collective interest.

Grounds under Article 19(2): Restrictions on speech and expression 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 or incitement to an offence.

Grounds under Article 19(3): Restrictions on the right to assemble may be imposed in the interests of the sovereignty and integrity of India or public order.

Regulation, not prohibition: Citizens are free to organise protests, but governments may lawfully regulate where, when and how they take place — for example, by requiring police permission or confining demonstrations to designated sites. The constitutional test is whether a restriction is reasonable and proportionate, not arbitrary or a blanket ban.

Fundamental duty: Under Article 51A(i), it is a fundamental duty of every citizen to safeguard public property and to abjure violence. A protest that turns violent or destroys property loses constitutional protection.

Replacement of Section 144 CrPC: Section 163 of the BNSS, 2023 re-enacts the prohibitory-order power that earlier existed as Section 144 of the CrPC, 1973. The core structure is retained, with an added explicit reference to electronic communication.

Who can issue it: A District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State government may issue written directions under this provision.

When it applies: It is an emergency power invoked where immediate prevention or a speedy remedy is considered necessary to prevent obstruction, annoyance or injury to lawfully employed persons, danger to human life, health or safety, or a disturbance of public tranquillity, a riot or an affray.

What it can prohibit: Orders can prohibit the assembly of five or more persons, the carrying of weapons, or the holding of processions and public meetings in a specified area for a limited period.

Time limit: An order ordinarily remains in force for not more than two months, unless the State government extends it in accordance with law.

Consequence of violation: Disobeying a lawful order under Section 163 is a punishable offence under the Bharatiya Nyaya Sanhita (BNS), the provision on disobedience to an order duly promulgated by a public servant.

Associated with protests, but rarely about them: Although Section 163 (and earlier Section 144) is popularly linked with banning protests, empirical evidence suggests that protest-related restrictions form only a small fraction of its actual use.

The 2023 study: A study published in March 2023 by advocates Vrinda Bhandari, Abhinav Sekhri, Natasha Maheshwari and Madhav Aggarwal examined around 5,400 Section 144 orders issued across Delhi between January 2021 and 2022.

Key findings: Only about 1.5% of the orders related to prohibited unlawful assemblies, and five of Delhi's 18 police districts did not issue a single assembly-related order in that period.

"Routine administration": The study concluded that an emergency power meant for exceptional situations had become a tool of routine administration, with almost every order reissued the moment the two-month limit expired — described as a mechanical process of issuing repeated, standardised ("cyclostyled") orders, including during Covid-19 lockdowns when the original justification no longer held.

Himat Lal K. Shah v. Commissioner of Police (1973): A Constitution Bench held that the State's power to regulate public meetings on streets does not extend to closing all public streets and open spaces, which would deny the fundamental right under Article 19(1)(a) and (b). Reasonable regulation is permitted; arbitrary exclusion is not.

Ramlila Maidan Incident, In re (2012): Arising from the midnight police action against a sleeping crowd at Ramlila Maidan, the Court held that citizens have a fundamental right to assembly and peaceful protest that cannot be taken away by arbitrary executive or legislative action, and cautioned against excessive use of force.

Mazdoor Kisan Shakti Sangathan v. Union of India (2018): Challenging the repeated issuance of Section 144 orders around Parliament House, North and South Block and the Central Vista, the Court upheld Section 144 as an emergency power but held that it cannot become a permanent mechanism to prohibit protests. It found that routinely refusing permission had converted a permission requirement into a blanket ban. Setting aside a National Green Tribunal order banning all protests along Jantar Mantar Road, the Court reaffirmed Jantar Mantar as Delhi's designated protest site and directed authorities to frame guidelines regulating participant numbers, distances from sensitive locations, time limits and weapons — making clear that regulation must not become prohibition.

Amit Sahni v. Commissioner of Police (2020): Arising from the Shaheen Bagh anti-CAA protest that blocked a public road, the Court held that while dissent and democracy go hand in hand, public ways and public spaces cannot be occupied indefinitely, and that demonstrations expressing dissent must be held in designated places. It reiterated that no fundamental right is absolute and that the rights of protesters must be balanced with the rights of commuters.

The consistent principle: Across these rulings, the Court has held that governments may regulate protests in the interest of public order but cannot extinguish the constitutional right to peaceful assembly altogether.

Designated sites: Protests are often confined to designated locations such as Jantar Mantar in New Delhi and Azad Maidan in Mumbai, so that assembly rights can be exercised without paralysing sensitive or high-traffic areas.

Prior permission: Demonstrations frequently require prior police permission. Courts have held that requiring permission is not itself unconstitutional, but permission cannot be refused routinely in a way that amounts to a standing ban.

Balancing framework: The judicially preferred model is robust regulation — limiting crowd size, hours, noise levels, duration and vehicle entry, and prohibiting weapons — rather than an outright prohibition of demonstrations.

India's stated position: Addressing the UN Human Rights Council in Geneva in 2021, India's representative described peaceful assembly as a cherished constitutional right that the government must balance with its obligation to protect public order and the right to life.

International instruments: The right to peaceful assembly is recognised in the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (ICCPR), which India has ratified.

Global standard: United Nations guidance holds that restrictions on peaceful assembly may be imposed for national security or public order, but must be lawful, necessary and proportionate to the aim pursued — a standard that closely mirrors the Indian constitutional test of "reasonable restrictions".

Clear, reasoned orders: Prohibitory orders should be issued only on specific, recorded reasons for a genuine emergency, with adequate publicity, rather than as routine, repeated, standardised orders.

Regulation over prohibition: Authorities should adopt the Supreme Court's preferred approach of regulating protests — through limits on numbers, timing, noise and location — instead of imposing blanket bans that extinguish the right.

Designated-site framework: A transparent, well-publicised system of designated protest sites with a fair, non-arbitrary permission process helps reconcile the right to protest with the rights of residents and commuters.

Proportionality and minimum force: Police responses to peaceful protest should follow the principles of necessity, proportionality and minimum use of force, consistent with the Ramlila Maidan ruling.

Balancing competing rights: The enduring goal is a mutually respectful balance between the right to dissent and the right of the wider public to safety, order and free movement.