Have our courts upheld our right to protest?

Over the years, numerous Supreme Court judgments have focused on the regulated use of public spaces for protests. These rulings have consistently upheld the necessity of police permissions as a reasonable restriction on protests, often favouring police consultations while neglecting the State's duty to facilitate these rights, as noted in a report by Part III Action Research and Resource Centre. In contrast, high courts have generally upheld the right to protest, while addressing concerns related to law and order.

The report, titled 'Licence to Protest: Examining the Role of Constitutional Courts in Upholding the Right to Protest', was released on Friday by a panel that includes retired Supreme Court judge Madan B. Lokur, former Odisha High Court chief justice Dr S. Muralidhar, senior advocate Sanjay Parikh, National Alliance of People’s Movements convenor Meera Sanghamitra, and North-East Support Centre and Helpline general-secretary Dr Alana Golmei.

Justice Lokur commented on the evolution of public interest litigations (PILs), highlighting how their purpose has shifted over time. “Originally, PILs were intended to assert the rights of disadvantaged individuals. However, there has now been a noticeable shift — one that the Supreme Court has entertained — where petitioners use PILs to curtail the rights of others. It is no longer about enabling someone’s rights,” Lokur emphasised.

He also remarked on the Supreme Court's reluctance to address certain issues directly, using the Shaheen Bagh protest as an example. “In the case of the Shaheen Bagh protest, the Supreme Court chose not to make a decision on the issue at hand,” he pointed out.

This report critically evaluates how both the Supreme Court and high courts define the right to protest, its limitations, and the legitimacy of imposed restrictions. In India, the right to protest is protected under articles 19(1)(a) and (b) of the Constitution, which guarantee freedom of speech and peaceful assembly. However, these rights are subject to reasonable restrictions under articles 19(2) and (3), introduced after the first Constitutional amendment of 1951.

While the Constitution robustly guarantees the right to protest, court decisions indicate that this right is heavily regulated by various laws, including section 144 of the Criminal Procedure Code (CrPC) and the Unlawful Activities (Prevention) Act, 1967. Historically, the Supreme Court has recognised protests as vital for holding public officials accountable, yet recent rulings suggest a shift in approach, differentiating current dissent from historical contexts.

Section 144 of the CrPC, which restricts assemblies to maintain public order, has been upheld by the Supreme Court in numerous cases. For instance, in Babulal Parate v. State of Maharashtra, the court affirmed its constitutionality, stressing that this section should only be invoked when genuine threats exist. However, in some cases, such as Mazdoor Kisan Shakti Sangathan v. Union of India, the Court allowed routine renewals of section 144, effectively banning assemblies and diverging from its original emergency intent.

The Supreme Court has frequently highlighted the need for police permission for protests to ensure orderly public use. While it has struck down arbitrary regulations lacking clear guidelines, it often favours police consultations without fully addressing the state's duty to facilitate these rights.

Concerns regarding police actions against protesters have also emerged. In Beenu Rawat v. Union of India, the Court noted the potential misuse of police authority, while in Anita Thakur & Ors. v. Government of J&K, it condemned excessive police force against peaceful protesters.

The latter case was a writ petition filed by migrants of Jammu and Kashmir who were planning a peaceful protest march to Delhi to voice their grievances. However, when they reached Katra in Jammu & Kashmir, the police brutally beat and assaulted the migrants on 7 August 2007. The petitioners alleged that this violated their constitutional rights.

And the former case was protestors of Aam Aadmi Party being assaulted by the police while protesting the non-registration of FIR of a rape case. 

Interestingly, the Supreme Court sometimes bases protest restrictions on grounds beyond those in articles 19(2) and (3). For example, in the case of Mazdoor Kisan Shakti Sangathan, it upheld a National Green Tribunal ban on protests due to noise pollution, despite this being outside the tribunal’s mandate.

High courts often uphold the right to protest while imposing conditions to maintain order, applying varied scrutiny to police concerns about potential disturbances. The Kerala High Court supported a university's blanket ban on political protests, whereas the Karnataka and Bombay high courts found such bans illegal, emphasising the principle of proportionality.

During protests against the Citizenship Amendment Act (CAA), responses varied widely. The Karnataka High Court deemed a blanket ban illegal and condemned police violence, while the Allahabad High Court upheld criminal proceedings against protesters based on alleged violence. High courts have also considered the economic impacts of protests, leading to mixed rulings on claims of business losses due to protests.

Overall, high courts have acknowledged the social contexts of protests, recognising factors such as marginalisation and emotional responses that drive dissent.

Justice Muralidhar underlined the need to understand the different kinds of protests and the varying treatment of different groups. “The same space can be occupied by different types of activities — be it a Ganesh procession or a Muharram procession. More recently, Ram Navami processions have been held in front of mosques. Some people are allowed to express themselves, while others are not. In July, kavadiyas were permitted to take over the capital city. Certain types of processions are welcomed, while others are not,” Muralidhar explained. “One must embrace all forms of expression and consider the context in which they arise.”

While the requirement for prior permission to protest has been consistently upheld, courts have frequently found that the discretion granted under these laws to the executive has been improperly exercised. Some of these powers have also been expanded by the Supreme Court in public interest litigation.

He further emphasised the importance of understanding the history of protests. “When protests arise from causes that are unpopular, the justification for restricting freedoms is often framed in terms of law and order. The political context can be understood by examining who is protesting and why. Courts, in particular, seek popularity and tend to align with the dominant narrative,” Muralidhar said. With a hint of irony, he added, “Given the current judicial decisions, the Dandi March would not have happened.”

Justice Muralidhar also addressed the judicialisation of protests. “We want to believe that tribunals and courts are neutral, but they are not. History teaches us what we should expect from institutions. We should not be surprised by the judgments that emerge,” he said.

Legislations governing police powers not only dictate the regime of prior permissions but also regulate the permissibility of police action and violence against protesters. There is an increasing trend towards the criminalisation of protests, which ranges from stringent anti-terrorism laws to those regulating public property, highways, and railways.

The analysis of Supreme Court and high court judgments reveals that protests are severely regulated and restricted by a myriad of legislation. The legitimacy of such restrictions requires further judicial review on the grounds of necessity and proportionality. While section 144 of the CrPC has faced many challenges before the Supreme Court, the impact of these cases has consistently diluted safeguards against its abuse, as stated in the report.

Concerns about the legitimacy of restrictions on the right to protest under articles 19(2) and (3) persist. Courts have consistently deferred to state concerns regarding the maintenance of law and order, fundamental duties of protesters, or inconvenience to other citizens, often without adequately linking these restrictions to public order or other permissible grounds. Even where the right to protest has been affirmed, courts frequently accept conditions imposed by the executive, as highlighted in the report.