Introduction
Peaceful protest is one of the cornerstones of a democratic society. Whether citizens organise rallies, participate in marches, or undertake a hunger strike, they are exercising their constitutional right to express dissent and seek accountability from the government. At the same time, this right is not absolute. The Constitution permits the State to impose reasonable restrictions in the interest of public order, security, and other legitimate concerns.
Recent events have once again brought this balance into focus. A protester on a prolonged hunger strike was taken to a hospital by the police, while a youth march towards Parliament was stopped before it could begin under Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. These incidents raise an important constitutional question: Where does a citizen’s right to protest end, and where does the State’s power to restrict it begin?
This article examines the constitutional basis of the right to protest, the legal limits on its exercise, and the landmark Supreme Court decisions that continue to shape the balance between democratic dissent and public order.
What Is the Constitutional Basis of the Right to Protest?
You won’t find the word “protest” anywhere in the Constitution. Courts have instead built this right out of three provisions under Article 19(1), read together:
- Article 19(1)(a) – Freedom of speech and expression
- Article 19(1)(b) – Right to assemble peacefully, without arms
- Article 19(1)(c) – Right to form associations or unions
Together, these three give citizens the right to speak up, gather, and organise — not just vote once every five years.
Can a Hunger Strike Be a Lawful Form of Protest?
Yes. Courts have held that a hunger strike is a valid, peaceful form of protest, protected under Article 21 (right to life) along with Article 19(1)(a).
Three things follow from this:
- A mentally sound adult who understands the risks has the right to refuse food.
- This can’t be called “suicidal” or denied on the theory that the right to life doesn’t include a right to die.
- The person can also refuse medical treatment, as long as their consent is genuine and informed.
In Re: Ramlila Maidan Incident (2012), the Supreme Court ruled that police had acted illegally when they broke up a peaceful gathering and hunger strike using Section 144 CrPC/Section 163 BNSS. The Court held that the right to assemble and protest peacefully “cannot be taken away by an arbitrary executive or legislative action.” What the judgment didn’t fully settle, though, is exactly how far the State can go when it does step in — a question that still comes up in newer protests today.
Constitutional Limits
Fundamental rights are not absolute. Under Articles 19(2) and 19(3), the government can place “reasonable restrictions” on speech and assembly — but only for specific reasons: public order, national security, sovereignty of India, or preventing incitement to a crime.
The main tool used on the ground is:
Section 163, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
(This replaced the old Section 144 CrPC.)
It lets a magistrate issue a temporary order — valid for up to two months — banning gatherings of five or more people in a specific area to prevent disorder or danger. If a crowd defies this order, it’s legally an “unlawful assembly,” and police can disperse it.
The problem: Section 163 is meant for genuine emergencies. In practice, it’s often used pre-emptively — sometimes across entire cities — which can end up shutting down legitimate protest rather than just preventing disorder.
Important Cases
Three key judgments show how the Supreme Court tries to strike a balance:
| Case | What It Established |
|---|---|
| Mazdoor Kisan Shakti Sangathan v. Union of India (2018) | Struck down a total ban on protests in Central Delhi; made Jantar Mantar a designated protest zone. |
| Amit Sahni v. Commissioner of Police (2020) – the Shaheen Bagh case | Upheld the right to protest, but ruled that public roads cannot be blocked indefinitely. |
| Anuradha Bhasin v. Union of India (2020) | Laid down the Doctrine of Proportionality — any restriction must have a legitimate aim, a real connection to that aim, and use the least intrusive method possible. |
Arrested at a Protest? Know Your Rights
If you’re arrested while protesting — whether as an organiser or participant — you’re entitled to:
- Inform someone – a family member or friend, about your arrest.
- Access a lawyer – and if you can’t afford one, request free legal aid from the District Legal Services Authority.
- Know the charges – as recorded in your arrest memo.
- Read before signing – you can examine the arrest memo before signing it, and you must be given a copy.
Current Event
This isn’t just theory — it shows up in current events too.
- An activist on a long hunger strike over exam paper leaks was forcibly shifted from Jantar Mantar to a hospital by police, ending the protest without the underlying demand being resolved.
- Around the same time, a youth-led march to Parliament over exam reforms was stopped at the start using a Section 163 BNSS order and barricades. It eventually led to talks between the organisers and a Union Minister.
These cases show a recurring pattern: once the State invokes its preventive powers, a street protest often shifts into a negotiation — and that shift itself changes the shape and impact of the movement. Fast-growing, decentralised movements especially risk losing their edge once they get pulled into conventional political channels.
Conclusion
A healthy democracy depends on both public order and the freedom to express dissent. Citizens should be able to protest peacefully, while the State has a duty to maintain law and order. The challenge is to strike a fair balance between these two interests. When this balance is maintained, both democracy and the rule of law are strengthened.
Join our WhatsApp Groups ( Click Here) and Telegram Channel ( Click Here) and get instant notifications.
Editorial Note: This article has been reviewed by the LegalRath Editorial Team to ensure legal accuracy, editorial quality, and clarity before publication.