3.

CONSTITUTIONAL PROVISIONS WITH RESPECT TO RIGHT TO

PROTEST

3.1 Right to Protest duties and responsibilities

Protest is one of the most significant features of an effective democracy in a Country. In India,
Right to Protest is a Fundamental Right Guaranteed Under Various articles of India and Upheld
as a Significant method of opposing the wrong and expressing the dissent by the Supreme Court
of India.1

Right to Protest is however subjected to the duties and responsibilities of the Protestors. No right
is absolute and always come with duties and responsibilities of Its own. The Foremost essential
of a Protest is that it must be peaceful at all costs and henceforth the foremost duty and
responsibility of a Protestors is to ensure that the protest remains peaceful.

Acc. To Justice AK Siri, “One of the cherished aspects of the political life in India is a tradition
to express grievances through direct action or peaceful protest. Organized, non-violent protest
were a key weapon in the struggle for independence, and the right to protest is now recognized as
a fundamental right in the Constitution.”2

Following are the other duties and responsibilities of the Protestors while organizing or
participating in a Protest.

 It is the duty of protestors to not to obstruct the public roadways and other services
ensuring that no obstruction is caused to traffic and other daily routines of the common
man. Public ways and roads are not the places where protests should be carried out as
they cause hardships to the general public.3
 No harm to the public property must be caused while organizing the protest. Any harm
caused to public or private property attracts the penal provisions provided under IPC.
 Any kind of Violence by the protestors is forbidden. As per Article 51A, it a fundamental
duty for every person to safeguard public property and to abjure violence.4

1
Anita Thakur & Ors. Vs. State of J & K &Ors., CIVIL WRIT PETITION NO.3280/2007.
2
Supra. Note 1
3
Amit Sahni vs. Commissioner of Police (ami)
4
Article 51A(i) of The Constitution of India,1950
  It is the duty of the Protestors to obtain the No objection Certificate from the Police
before protesting. In case the police feel that the protest rally or demonstration will lead
to unrest and go against public order, permission can be denied.
 The Duty of protest organizers is to ensure that public order is maintained all the times
and clashes must not happen within the protestors or clashes between protestors and other
parties.
 The protests must be organized after complete permission and at a place assigned to
them. The Court has often ordered the protestors to shift from existing place in order to
maintain public order and remove obstructions and difficulties caused to common man.
In the recent Shaheen Bagh Protests, the protestors were asked to vacate their place of
protest to another place prepared for the protest.
 The Protestors must keep in mind while participating in a protest that ones Right to
protest must not violate Right to free movement and Right not to listen of others.5
 In times such as now, where the world is facing COVID-19 Pandemic, It is the Duty of
protestors to maintain the SOP provided by various departments while organizing a
Protest in order to ensure public health and safety.
 It is duty of protestors to respect the Law Enforcement Agencies working along side the
protestors for the peaceful conduct of the protest.
 It is a duty and responsibility of the protestors to report any unlawful Activity happening
under the purview of the Protest that could defeat the whole purpose of organization of
protest.

These aforementioned Duties and Responsibilities of the Protestors are a safeguard that
ensures that Right to Protest remains legally enforced. If these Duties and responsibilities are
not fulfilled, it may attract the reasonable restrictions on Right to Protest as Provided Under
the Article 19 of the Constitution of India giving all the Right to the Law enforcement
agencies to act for the termination of Protest.

5
Govt. of Tamil Nadu & Ors. Vs. P. Ayyakannu, [Link].8652 of 2018
 3.2 Preamble and The Right to Protest

The Preamble to the Constitution of India states the ideals on which the Indian Constitution is
based and the sources from which the Constitution derives its authority - namely, the citizens of
India. It also lays down the legal and moral values which are fundamental principles of the
constitution. It is part of the Constitution itself.6 It contains the principles upon which the
Constitution was drafted.

In the words of late Thakur Dass Bhargava, member of the constituent assembly, “preamble is
the heart and soul of the Constitution.” The Preamble is the heart and soul of our Constitution
because it contains the basic structure and principles and overview of the whole constitution. The
basic principles like Equality, Socialism, Secularism, Republic, Liberty, Fraternity, Democracy
are enshrined in Preamble of the Constitution of India.

We, The people of India, Have solemnly resolved to secure the Justice and guarantee the Liberty,
therefore in absence of such Justice, it is the Right as well as Duty of people of the country to
protect the same and rise from such Injustice. Protests are the most significant tool all around the
world to fight such injustices.

The basic guiding principles of the democracy are the liberty and freedoms that the people
possess for raising their voices against the wrongs in the society and bringing an uprise for the
same.

In the Case of Re-Ramlila Maidan Incident Dt vs Home Secretary and Ors7, the SC Stated that
Right to protest is a fundamental right which not only is guaranteed under Article 19 of the
Constitution of India but also in the other parts including the Preamble itself. Acc. To SC, “There
could be no expression without these rights. Liberty of thought enables liberty of expression.
Attainment of the preambled liberties is eternally connected to the liberty of expression.”

The recent Anti-CAA protest were a milestone when it came for the interpretation of preamble
for protection of Right to Protest where various distinguished people including lawyers gathered
in the Lawn of Supreme Court of India and read the Preamble of India reminding everyone that
the preamble provides them the Right to Protest.

6
Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., AIR 1973 SC 1461
7
W.P Crl No. 122 of 2011
The preamble declares India to be a democratic country and Right to protest is the essence of the
democracy. Unless and until the citizens have been given the right to Protest, Democracy can not
be declared to be achieved. The preamble also contains the words such as Justice must be there
which not only entrusts justice needs to be done in every aspect but also provides a counter right
to the citizens of the country to rise against the injustice if push comes to shove.

The constitution guarantees the liberty of thoughts, Expressions, belief, faith and worship. These
rights are guaranteed under various fundamental rights of the constitution and hence giving the
authority to the people to rise up against all the wrongs and injustices and to express themselves
in the form of protests.

Acc. To Thakur Das Bhargaava, “Justice, Liberty, Equality and Fraternity are to be found in this
Constitution, if we can get this ideal through this Constitution, I maintain that the Constitution is
good. In so far as these four things which are contained in the Preamble are wanting, then the
Constitution is wanting.” Being the member to the constituent assembly, these words of Thakur
Das Bhargave mean a lot, as these shows the intentions of the drafters of Constitution and their
want to ensure that justice must be provided and liberty of people must be protected.

“A man dies when he refuses to stand up for that which is right. A man dies when he refuses to
stand up for justice. A man dies when he refuses to take a stand for that which is true.”

— Dr Martin Luther King Jr.

3.3 Right to Protest Under Article 19

Right to Protest is enshrined under Article 19 of the constitution which provides various
freedoms to the citizens of country.

As per Article 19, Following rights of freedom are to be protected from which Right to protest
derives its authority and status of being an Fundamental Right i.e.

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

These four articles constitute the right of protest on the basis that a protester can exercise his
right to hold a protest against any issue of national or social interest and express himself in such
matters by assembling peacefully and form associations.

In Re-Ramlila Maidan Incident v. Home Secretary, Union Of India & Ors. 8 case, the Supreme
Court had stated, “Citizens have a fundamental right to assembly and peaceful protest which
cannot be taken away by an arbitrary executive or legislative action.” These are the same words
that has been protected as a Right of freedoms under Article 19 of the Constitution.

In Maneka Gandhi v. The Union of India 9, the Supreme Court was of the opinion that, ‘if
democracy means the govt. of the people, on the part of the people, it’s obvious that every citizen
must have the right to participate in the democratic process & allow him to intelligently exercise
his rights to make a choice, a free & general discussion of public issues is absolutely essential.’
This ratio not only reaffirms the Right to protest to be a Fundamental right but also provides for
the reasons why Right to protest is an essential for a democratic country.

In Himat Lal K Shah vs Commissioner of Police 10, the Supreme Court had observed that even
though citizens can not form unions and associations “in whatever place they please,
nevertheless the State cannot by law abridge or take away the right of assembly by prohibiting
assembly on every public street or public place.”

8
SUO MOTU WRIT PETITION (CRL.) NO. 122 OF 2011
9
1978 AIR 597
10
1973 AIR 87
It has been held in the case of Mazdoor Kisan Shakti Sanghatan 11 that the government or the
police cannot perpetually declare an area as a prohibited site for peaceful protests or gatherings.

However, the Right to protest is also subjected to various reasonable restrictions. right is
therefore subject to reasonable restrictions under clause 2 to 6 of the Indian Constitution, which
includes a restriction which State law has imposed in the name of maintaining public policy.

The following are those reasonable restrictions-

1. If the security of the State is in danger;

2. If the friendly relations we share with a neighbouring country are threatened;

3. In case of violation of public order;

4. If there is contempt of court;

5. If India’s sovereignty and integrity are threatened.

As per Supreme Court, occupation of public ways (protests), at the site of question or anywhere
else for protests “is not acceptable and the administration ought to take action to keep the areas
clear of encroachment or obstructions”12

Democracy would have no meaning if freedom to assemble is not guaranteed. Thus, public
meetings in open spaces and public streets have formed part of our national life and people have
come to regard it as part of their privileges and immunities. Similarly, the right to take out a
procession on the highways and Public Street is part of the right to assemble which the people
have regarded as part of Indian law, even before the commencement of Constitution.13

Therefore, right to protest is a fundamental Right protected under article 19 of the constitution
which is also subjected to various reasonable restrictions.

3.4 Article 19(1) (a) (b) (c) essence of Valid Protest

A protest is a way of expressing disapproval or objection to any action, statement or policy of a

government or an organization that wants to accuse a group of people against themselves. Indian

11
WRIT PETITION (CIVIL) NO. 1153 OF 2017
12
Amit Sahni v Commissioner of Police and Ors Civ App. No. 3282 of 2020
13
Himatlal v. Police Commissioner, AIR 1985 SC 229.
constitution provides the fundamental rights to its citizens which include the right to protest.
Although the word protest is not explicitly mentioned in the fundamental rights of the Indian
Constitution, it is implicitly derived from the in-depth reading of Article 19.

Under the umbrella of Article 19, other freedoms are incorporated such as right to freedom of
speech and expression, to assemble peacefully and without arms, to form associations and unions
under Article 19(1) (a), (b), (c) respectively. When the question of valid protest comes, it equally
pay heed to the enjoyment of other freedoms. These three articles constitute the right of protest
on the basis that a protester can exercise his right to hold a protest against any issue of national
or social interest.

Valid protest in light of the Article 19 requires the enjoyment of right to freedom of speech and
expression because without having a freedom to express own view, the purpose of protest cannot
be achieved. The right to have different opinions and express through peaceful agitations is
important to any democracy. In Re-Ramlila Maidan Incident Dt vs Home Secretary and Ors,
the Supreme Court contextualized freedom of speech and expression as the essence of a
democratic system. “There could be no expression without these rights. Liberty of thought
enables liberty of expression. Attainment of the preambled liberties is eternally connected to the
liberty of expression.” 14

Further, Article 19(1)(b) assures citizens the right to assemble peaceably and without arms. It
envisages the freedom of protestors to come together but peacefully and without arms. This right
ensures the holding of public meetings or to close a procession. Supreme Court had stated,
“Citizens have a fundamental right to assembly and peaceful protest which cannot be taken away
by an arbitrary executive or legislative action.”15

In Mazdoor Kisan Shakti Sanghatan vs Union of India, the Supreme Court has spoken through
Justice Bhushan and Justice Sikri holding peaceful demonstrations by the citizenry in order to air
its grievances and to ensure that these grievances are heard in the relevant quarters, is a
fundamental right. This right is specifically enshrined under Article 19 (1) (a) and 19 (1) (b) of
the Constitution of India. Article 19 (1) (a) confers a very valuable right on the citizens, namely,

14
Re-Ramlila Maidan Incident Dt vs Home Secretary and Ors, W.P Crl No. 122 of 2011
15
Ibid.
right of free speech. Likewise, Article 19 (1) (b) gives right to assemble peacefully and without
arms.16

Further, Article 19(1)(c) entitles the citizens to create associations or trade unions which includes
the right to form self-regulatory clubs, professional associations or companies in the field of
common interest. By virtue of this right, protestors have right to form unions which is very
important in a democracy. These associations , clubs and groups will not only help an individual
socialize and develop warm and cordial relations with others but also at the same time will give
him an opportunity to put forth his own thoughts and opinions relating to any issue or a
particular agenda in the society. At this point, it is relevant to the right to valid protest because
without the association, an individual would not be in a stage to protest. The right guaranteed is
not merely the right to form association but also to continue with the association as such, an
association or union which facilitates the protestors with the right to continue their association to
achieve the desired goal.

The Apex court ruled that,” the Government has power to regulate which includes prohibition of
public meetings on streets or highways to avoid nuisance or disruption to traffic and thus, it can
provide a public meeting on roads, but it does not mean that the government can close all the
streets or open areas for public meetings, thus denying the fundamental right which flows
from Article 19(1)(a) and (b).”17

Therefore, the cluster of inter-related political rights (expression, association, assembly, petition
and protest) is meant to ensure that even when the government works in our interests, we don’t
sit back and allow it to conduct business as usual. It highlights the essence of valid protest which
requires the presence of right to speech and expression, right to assemble peacefully and the right
to form union. The right to protest, to publicly question and force the government to answer, is a
fundamental political right of the people that flows directly from a democratic reading of Article
19(1) (a)(b)(c) of the constitution of India.

3.5 Article 19(2) – Necessity of Valid Protest

16
AIR 2018 SC 3476
17
Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, AIR 1973 SC 87
It is relevant to be noted that all protests are legal only if they are non-violent and are carried out
with appropriate permissions. The basic obligations enshrined in the constitution require respect
for the rule of law and not to destroy public property.

These fundamental rights are not absolute and come with reasonable restrictions that impose on
them, as if people were given complete freedom without having control that could affect society
as a whole. Thereby, the right to protest also subject to reasonable restrictions. The right to free
speech and expression enshrined in the Article 19(1)(a) transforms into the right to freely express
opinion on the conduct of the government.

Further, Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and
without arms and to freedom of speech and expression as none of these rights are absolute in
nature. The reasonable restrictions are imposed in the interests of the sovereignty & integrity of
India, the security of the State, friendly relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an offence.

In the case of S. Rangarajan v. Jagjivan Ram, the Supreme Court noted, “Our commitment of
freedom of expression demands that it cannot be suppressed unless the situations created by
allowing the freedom are pressing and the community interest is endangered. The anticipated
danger should not be remote, conjectural or far-fetched. It should have proximate and direct
nexus with the expression. The expression of thought should be intrinsically dangerous to the
public interest. 18

In the case of Ramleela Maidan incident,19 the apex court said that no person can be divested of
his fundamental rights. They are incapable of being taken away or abridged. All that the State
can do, by exercise of its legislative power, is to regulate these rights by imposition of reasonable
restrictions on them. Upon an analysis of the law, the following tests emerge:

a) The restriction can be imposed only by or under the authority of law. It cannot be imposed by
exercise of executive power without any law to back it up.

b) Each restriction must be reasonable.

c) A restriction must be related to the purpose mentioned in Article 19(2).

18
(1989) 2 SCC 574
19
Re-Ramlila Maidan Incident Dt vs Home Secretary and Ors, W.P Crl No. 122 of 2011
When the right to protest is exercised in a manner that it does not go against the public interest
and the peace, then such protest comes within the ambit of valid protest. As stated earlier, the
right to protest can be restricted but it must fulfil the conditions stipulated above. In Himmat Lal
K Shah vs. Commissioner of police Ahmedabad, the court held that the police can’t restrict their
fundamental right to protest unless there is a proper reason.20

The Government has to respect and, in fact, encourage exercise of such rights. It is the abundant
duty of the State to aid the exercise of the right to freedom of speech as understood in its
comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its
executive or legislative powers and passing orders or taking action in that direction in the name
of reasonable restrictions”21

It is evident that Grounds contained in Article 19(2) show that they are all concerned with the
national interest or in the interest of the society. The first set of grounds i.e. the sovereignty and
integrity of India, the security of the State, friendly relations with foreign States and public order
are all grounds referable to national interest, whereas, the second set of grounds i.e. decency,
morality, contempt of court, defamation and incitement to an offence are all concerned with the
interest of the society.22

Therefore, right to protest requires the freedom of speech and expression so that voices can be
raised against the government policy or decision whatever the case may be. This Right gets the
legal recognition when it is being carried out in legitimate manner. For the purpose of restricting
the exercise of Protesting, the constitution provides for the reasonable restriction as stated under
Article 19(2) which is important in the interest of sovereignty and integrity of the country. The
Fundamental rights do not exist in isolation and there should be a mutual balance between the
right of protestor and general public.

3.6 Article 19(3) &(4)- Other Necessities

The right to protest is protected under Article 19(1)(a), Article 19(1)(b) and Article 19(1)(c),
which gives citizens the right to freedom of expression, the right to meet peacefully without
20
Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, AIR 1973 SC 87
21
Re-Ramlila Maidan Incident Dt vs Home Secretary and Ors, W.P Crl No. 122 of 2011
22
Sakal Papers V. Union of India AIR 1962 SC 305
weapons and the right to form associations or trade unions. These three articles constitute the
right of protest on the basis that a protester can exercise his right to hold a protest against any
issue of national or social interest.

However, these rights are not absolute in nature and are subject to reasonable restrictions as
provided under Article 19 itself. Article 19(1)(b) recognizes and guarantees the freedom of
assembly. But it is not an absolute right. Restrictions are possible against this right too, as
provided under article 19(3) and (4). Article 19(1)(b) guarantees to the citizens the right to
assemble peacefully and without arms.

Article 19 (3) of the Constitution provides that nothing in the right to assemble peaceably shall
affect the operation of any existing law in so far as it imposes, or prevents the State from making
any law imposing, in the interests of the sovereignty and integrity of India or public order,
reasonable restrictions on the exercise of that right. The restrictions pertaining to sovereignty and
integrity were added after the adoption of the Constitution.

In Babulal Parate vs State of Maharastra, Supreme court Upheld the citizen’s right to take out
procession or to hold demonstration or public meetings as part of the freedom to assemble
peacefully and without arms and right to move freely anywhere in the territory of India.23

The Supreme Court clarified that only peaceful demonstration is protected and not all forms of
demonstrations. This fundamental right with reasonable restrictions in general interest was
further consolidated by the decision of the SC in Himmatlal vs. Police commissioner. The
Supreme Court had observed that even though citizens can not form unions and associations “in
whatever place they please, nevertheless the State cannot by law abridge or take away the right
of assembly by prohibiting assembly on every public street or public place.”24

Further, it has been held that authorities should not be left with controlled discretion to regulate
the freedom of assembly, though this right was subject to the control of the appropriate authority.
In the absence of guidelines, banning public meetings on public streets was held to be arbitrary.

It implies that the right of protestors to assemble peacefully is subject to reasonable restrictions
that can be imposed by the authority of law only. Therefore, it is one of the necessity of the valid

23
AIR 1961 SC 884.
24
Himat Lal K Shah vs Commissioner of Police, 1973 AIR 87
Protest that the freedom to assemble does not ipso fact mean to involve in such activity which is
against the public order and integrity of the nation.

Article 19(1)(c) of the Constitution of India guarantees to all its citizens the right "to form
associations and unions or cooperative societies" Under clause (4) of Article 19, the state may by
law impose reasonable restrictions on this right in the interest of public order or morality or the
sovereignty and integrity of India. The right to form associations or unions or cooperative
societies has a very wide and varied scope including all sorts of associations viz., political
parties, clubs, societies, companies, organizations, entrepreneurships, trade unions etc.

The right of association like other individual freedom is not unrestricted. Clause (4) of Article 19
empowers the State to impose reasonable restrictions on the right of freedom of association and
union in the interest of "public order" or "morality" or "sovereignty or integrity" of India. It saves
existing laws in so far as they are not inconsistent with fundamental right of association.

Article 19(4) stipulates that the right to form association must be exercised to the extent that it is
not going against the public order or morality. It requires the right to protest be exercised in a
way as not violating the existing law.

In Anita Thakur & Ors. Vs. State of J & K &Ors, 25The SC categorically laid down in this case
that a significant feature of a democracy is the space offered for legitimate dissent. However, the
SC clarified that the right to peaceful protest, like any other fundamental right, is not absolute in
nature and can be restricted on the ground of violation of the sovereignty and integrity of India
and public order as well as public safety. Therefore, the court rulings reaffirm constitutional
guarantees that citizens have the right to protest whenever the need arises. These protests help
strengthen Indian democracy but these protest should not violate the existing laws which are
important to maintain law and order in the society.

3.7 Article 21 and Right to protest

Article 21 is the foundation of the constitutional scheme. It grants to every person the right to life

and personal liberty. This Article prescribes a negative mandate that no person shall be deprived

25
2016 (7) SCALE 725
of his life or personal liberty except according to the procedure established by law. The

procedure established by law for deprivation of rights conferred by this Article must be fair, just

and reasonable. The rules of justice and fair play require that State action should neither be

unjust nor unfair, lest it attracts the vice of unreasonableness, thereby vitiating the law which

prescribed that procedure and, consequently, the action taken thereunder.

The expression “personal liberty” used in Article 21 has also been widely interpreted by the
Supreme Court. It does not merely mean freedom from physical restraints or freedom from
confinement within bounds of a prison. In other words, it means not only freedom from arrest or
detention from wrongful confinement or false imprisonment, but it means much more than that.
The term personal liberty is not used in a narrow sense but has been used in Article 21 as a
compendious term to include within it all those variety of rights of a person which go on to make
up the personal liberty of a man.

The right to peacefully and lawfully assemble together and to freely express oneself coupled with
the right to know about such expression is guaranteed under Article 19 of the Constitution of
India. Such a right is inherent and is also coupled with the right to freedom and liberty which
have been conferred under Article 21 of the Constitution of India.

The court in Re Ramlila case26 was of opinion that associating police as pre-requirement to hold
meetings, dharnas and protests, on such large scale, would not infringe the fundamental rights
enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution as this would squarely fall
within the regulatory mechanism of reasonable restrictions, contemplated under Articles 19(2)
and 19(3). Furthermore, it would help in ensuring due social order and would also not impinge
upon the rights of the others, as contemplated under Article 21 of the Constitution of India.

In the case of Mazdoor Kisan Shakti Sanghatan vs Union of India, 27 the court fell into the
dilemma when it came to balancing the Right to Protest providing right to the protestors to
protest and Article 21 which provides fundamental rights to the non-protestors living in the area.
The Court observed that there would be also an incidental and interrelated issue with the protest,
26
W.P Crl No. 122 of 2011
27
WRIT PETITION (CIVIL) NO. 1153 OF 2017
namely, whether the manner in which the demonstrations etc. are held, would they violate the
fundamental right of the residents guaranteed under Article 21 of the Constitution. If the answer
is in the affirmative, it would raise another issue, namely, balancing of the two rights. The right
of the protestors under Article 19(1)(a) and 19(1)b) of the Constitution and the rights of the
residents under Article 21 of the Constitution, as both the rights are fundamental rights.

The SC said that harmonious construction for the same must be done. It is the only way of
balancing out the aforementioned condition. The articles of the constitution and the Fundamental
Rights are of everyone. It has to be seen that Rights of both the parties involved must be
protected. The constitution talks about equality and freedoms of every citizen of the country and
therefore harmonious construction is the only way out.

Article 21 not only talks about liberty but it also talks about procedure established by law which
is based on the principle of reasonableness. No Right can be hampered at any cost. Hence the
Right of the protestors to protest is also entrusted under Article 21 of the constitution.

3.8 Statutory Provisions Related to Right to protest

Right to Protest is enshrined under Article 19 of the constitution which provides various
freedoms to the citizens of country.

As per Article 19, Following rights of freedom are to be protected from which Right to protest
derives its authority and status of being an Fundamental Right i.e.

(a) to freedom of speech and expression;

(b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

These four articles constitute the right of protest on the basis that a protester can exercise his
right to hold a protest against any issue of national or social interest and express himself in such
matters by assembling peacefully and form associations.

Article 51A makes it a fundamental duty for every person to safeguard public property and to
avoid violence during the protests and resorting to violence during public protests results in
infringement of key fundamental duty of citizens.

Article 19(1)(a) of the Constitution elucidates that right to free speech and expression. It includes
that every person has the right to express their personal opinions but subjected to reasonable
restrictions.

Article 19(1)(b) states about the right to assemble peaceably and without arms. Thereby, the right
to peaceful protest is bestowed to Indian citizens by our Constitution.

Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without
arms and to freedom of speech and expression as none of these rights are absolute in nature.

The reasonable restrictions are imposed in the interests of the sovereignty & integrity of India,
the security of the State, friendly relations with foreign States, public order, decency or morality
or in relation to contempt of court, defamation or incitement to an offence.

Another aspect by which the police or the state regulate protestors is by issuing prohibitory
orders like Section 144 of the Criminal Procedure Code (CrPC). Put simply, the administration is
empowered under Section 144 to impose restrictions on the personal liberties of individuals. This
means the fundamental right of peaceful assembly provided under Article 19 of the Constitution
can be curtailed by the administration if the executive magistrate finds the situation at any
specified place presents a potential for disturbance in law and order.

In a similar manner, there are local acts that also impose restrictions on protests and movements
like Section 37(1)(3) and Section 135 of the Bombay Police Act. It should be noted that the
Supreme Court has repeatedly stated that repetitive prohibitory orders without any real cause will
be dangerous for the functioning of a vibrant democracy.
Apart from these statutory provisions It is the duty of the Protestors to obtain the No objection
Certificate from the Police before protesting. In case the police feel that the protest rally or
demonstration will lead to unrest and go against public order, permission can be denied.

In the case of Anita Thakur & Ors. Vs. State of J & K &Ors 28, the SC observed that the right to
peaceful protest, like any other fundamental right, is not absolute in nature and can be restricted
on the ground of violation of the sovereignty and integrity of India and public order as well as
public safety.

Hence these are the various constitutional and statutory provisions governing the Right to
protest.

3.9 Reasonable restrictions upon Right to protest

Article 19 of the constitution not only provides for Right to protest, but it also subjects various
reasonable restrictions upon Right to protest.

Following are the various reasonable restrictions put upon the Right to protest:

1. If the security of the State is in danger;

2. If the friendly relations we share with a neighbouring country are threatened;

3. In case of violation of public order;

4. If there is contempt of court;

28
CIVIL WRIT PETITION NO.3280/2007
5. If India’s sovereignty and integrity are threatened.

The most widely imposed restriction upon the Right to Protest is the Violation of Public order
done by the protestors where after turning into violent protest, various other laws are imposed in
order to dealt with the situation.

The court in the case of Amit Sahni v Commissioner of Police and Ors 29 has held that the right to
protest in public places is not absolute in law. Public places cannot be occupied indefinitely.
Such kind of occupation of public ways (protests), at the site of question or anywhere else for
protests “is not acceptable and the administration ought to take action to keep the areas clear of
encroachment or obstructions”.

While disposing off the Shaheen Bagh case petitions, the Supreme Court observed that “We are
not disputing the right to protest. But it has to be to be balanced with people's right to free
movement. For a long time, the public road was blocked and people were denied movement on
the road. The issue is -where and how and how long such protests can go”.

In the case of the Railways Board [Link] Singh, a limitation was observed. The restriction
indicates the right to protest/assembly does not apply to the right to someone else’s property. All
reasonable restrictions are imposed on the interests of India’s sovereignty and integrity, state
security, friendly relations with foreign countries, public order and cannot be arbitrary in nature.
So citizens must remember and perform their duties while exercising their rights.

In the case of Anita Thakur & Ors. Vs. State of J & K &Ors 30, the SC observed that the right to
peaceful protest, like any other fundamental right, is not absolute in nature and can be restricted
on the ground of violation of the sovereignty and integrity of India and public order as well as
public safety.

Acc. To Justice AK Sikri, Rights of lakhs of people cannot be subject to the whims and fancies
of a few thousands who seek to occupy public places in large numbers for an indefinite period of
time. No recognized right of people, even if considered in the widest amplitude possible, can be
permitted to be unbridled, unrestricted and absolute. Any recognized right is and must be
subjected to legitimate restrictions to secure the balance of a democratic setup. Rights cannot be

29
Civ App. No. 3282 of 2020
30
CIVIL WRIT PETITION NO.3280/2007
considered in a stand-alone manner and used as a cover to shrug off the responsibilities which
come along with them.

Madras High Court in the case of Govt. of Tamil Nadu & Ors. Vs. P. Ayyakannu 31, denied
permission to carry out protest at Marina Beach stating that The protestors who claim to espouse
the cause of the public, often forget that their right to protest ends when other person's right to
free movement and 'right to not to listen to starts. A citizen has no fundamental right to insist that
his speech should be heard by an unwilling citizen. Similarly, it is not possible to compel a
person to witness a procession, against his wishes.

Hence these are the reasonable restrictions provided under article 19 of The Constitution of
India, 1950 which are upheld by Supreme Court under various cases.

3.10 Peaceful protest - An absolute right?

When a group, community or even a person goes up to protest, the protest stands for a
disapproval or demur against any action, policy, statement, etc of state or government or any
organisation or any other general public interests that are hampered by the government.

In Re: Ramlila Maidan Incident v. Home Secretary, Union Of India & Bears 32, the SC held that,
‘Citizens have a fundamental right to assembly and peaceful protest that cannot be removed from
arbitrary executive or legislative action.’

In Maneka Gandhi v. The Union of India33, Justice Bhagwati stated that, ‘if democracy means
the govt. of the people, on the part of the people, it’s obvious that every citizen must have the
right to participate in the democratic process & allow him to intelligently exercise his rights to
make a choice, a free & general discussion of public issues is absolutely essential.’

In Himat Lal K Shah vs Commissioner of Police 34, the Supreme Court had observed that even
though citizens cannot form unions and associations “in whatever place they please, nevertheless
31
[Link].8652 of 2018
32
W.P Crl No. 122 of 2011
33
1978 AIR 597
34
1973 AIR 87
the State cannot by law abridge or take away the right of assembly by prohibiting assembly on
every public street or public place.” Hence the case reaffirms that right to Protest do exists
however same is not absolute.

These protests help in strengthening the Indian democracy which not only protects the right of
citizens, but also helps society to evolve. Therefore, right to protest is an essential element of
free democracy in order to protect the interest of citizens.

Right to protest is an fundamental Right guaranteed under the article 19 of Constitution of India
however it is subject to various reasonable restrictions too. These restrictions are also provided in
Article 19(2) itself.

In the case of the Railways Board [Link] Singh, a limitation was observed. The restriction
indicates the right to protest/assembly does not apply to the right to someone else’s property. All
reasonable restrictions are imposed on the interests of India’s sovereignty and integrity, state
security, friendly relations with foreign countries, public order and cannot be arbitrary in nature.

Article 19(2) empowers the State to impose reasonable restrictions on exercise of the right to
freedom of speech and expression in the interest of the factors stated in the said clause. Similarly,
Article 19(3) enables the State to make any law imposing reasonable restrictions on the exercise
of the right conferred. The State has a duty to protect itself against certain unlawful actions and,
therefore, may enact laws which would ensure such protection.

In the Re-Ramlila case35, the court even observed that Article 37 makes the Directive Principles
of State Policy fundamental in governance of the country and provides that it shall be the duty of
the State to apply these principles in making laws.

Similarly, Article 51A deals with the Fundamental Duties of the citizens. It postulates that it
shall be the duty of every citizen of India to abide by the Constitution, to promote harmony and
the spirit of common brotherhood, to safeguard public property and to abjure violence.

This case reiterates a combined reading of the three parts so as to establish the duty of the state to
protect the public interest and safeguard public peace while also having to protect the
fundamental rights of every individual.

35
W.P Crl No. 122 of 2011
No person can be divested of his fundamental rights. They are incapable of being taken away or
abridged. All that the State can do, by exercise of its legislative power, is to regulate these rights
by imposition of reasonable restrictions on them. Upon an analysis of the law, the following tests
emerge:-

a) The restriction can be imposed only by or under the authority of law. It cannot be imposed by
exercise of executive power without any law to back it up.

b) Each restriction must be reasonable.

c) A restriction must be related to the purpose mentioned in Article 19(2).

Therefore, it can be concluded that though Right to Protest is an Fundamental Right Guaranteed
under the constitution of India, It can not be said to be an absolute right cause no right can be
absolute. Reasonable restrictions can be imposed for the reasons as aforementioned in order to
maintain societal order and integrity of state.