The Right to Protest: A cornerstone of Democracy or a Public Order Challenge?
As a democracy, we have witnessed multiple cases where protests have occurred for various reasons and in such circumstances a balanced approach has been chosen to ensure justice and reasonableness.
INTRODUCTION
Of the people, for the people and by the people is what a healthy democracy stands for. Democracy stands for more than just a government fighting for seats in the election, it stands for accountability, transparency, public interest & welfare, constructive criticism, the right to ask, oppose and demand. In such a democracy the ability to voice disagreement is not merely a privilege but an essential part of people’s participation. In simple words, a protest is a collective expression of dissent or disagreement through which individuals collectively demand a change in decision, policy, or course of action. The right to protest is not merely a concept it is constitutionally protected right. Existing scholarship has examined this tension from different perspectives.
The debate surrounding the Shaheen Bagh protests, for instance, demonstrates how protesters can use constitutional rights and legal language as tools of political participation, while also showing how law may become a means through which democratic dissent is regulated[1]. This raises the question “Where should the law draw the line between protecting democratic dissent and maintaining public order?
LEGAL FRAMEWORK
The constitutional foundation of the right to protest can be primarily traced to Article 19 of the Constitution of India. Article 19(1)(a) guarantees citizens the freedom of speech and expression. The protests can involve expressing criticism, disagreement, dissent through slogans, placards, speeches[1]. Thus, such peaceful protests are legally protected as a constitutional right. A protest involving a peaceful gathering therefore engages freedom of speech and expression along with Article 19 (1)(b) [2] the right to assemble peaceably without arms. Although the right to protest is constitutionally protected, its exercise is subject to reasonable restrictions and must be balanced against competing rights and interests. Although both of these rights can be exercised subject to reasonable restrictions provided under Article 19(3). Article 19(3) permits the State to impose reasonable restrictions non the right to assemble peaceably and without arms in the interest of sovereignty and integrity of India without causing harm to public order and decency[3]. The Supreme Court has also recognised the connection between the right to peaceful protest and Article 21[5].
In Re: Ramlila Maidan Incident v. Home Secretary , Union of India[6], the Court observed that the right to peacefully assemble and freely express oneself, guaranteed under Article 19, is coupled with the freedom and liberty protected under Article 21.This becomes particularly relevant where prolonged or disruptive protests affect the life, liberty, safety or privacy of other individuals, which are protected under Article 21 of the Constitution.
Thus, the constitutional framework governing protest involves not only the rights of protesters but also the protection of the life, liberty and other fundamental interests of person affected by the exercise of that right.
CRITICAL ANALYSIS
Is the right to protest absolute?
The right to protest, although constitutionally protected, is not an unrestricted right. Its exercise is subject to reasonable limitations, particularly where it affects public order or the rights of others. If this right was absolute the protests could be held without any restrictions at all. However,such regulation must be distinguished from restrictions that unnecessarily suppress peaceful dissent. While the State may regulate the manner, place or timing of a protest to prevent genuine disruption, such regulation should not be used as a means to silence disagreement or effectively take away the right itself. The Supreme Court has recognised peaceful protest as a fundamental right under Article 19 (1)(a) and 19(1)(b), although with certain restrictions under Article 19(3).The Court therefore recognized that while dissent is an essential part of democracy, the exercise of the right to protest cannot be completely overlooked from its impact on the rights of others and use of public spaces.
What amounts to a legitimate public-order restriction?
The existence of public-order concern, however, does not by itself make every restriction on protest constitutionally valid. The restriction must not be arbitrary in nature and must have a genuine connection with the concern sought to be addressed. In Himat Lal K. Shah v. Commissioner of Police[7] , the Supreme Court recognised the State’s power to regulate assemblies and public meetings in the interests of public order, but held that such regulation cannot amount to unrestricted power to deny permission. The Court struck down the relevant rule because it vested unguided discretion in the police to grant or refuse permission. In Mazdoor Kisan Shakti Sangathan v. Union of India[8], demonstrations at Jantar Mantar were challenged on the ground that it caused noise pollution, large gatherings and disturbance, waste and serious discomfort and harassment to the residents of the area. While recognising the fundamental rights to continue a peaceful protest, the Supreme Court ruled that it cannot override the rights of others thus the court adopted a balancing approach where the protection of the rights of one side does not lead to violation of rights on the other side. The essence of protecting public order is to primarily ensure that the protests do not threaten the integrity, sovereignty, public order and morality in any manner. Although, the restrictions should be just and reasonable and not arbitrary in nature which completely undermines the purpose of the protest. Such restrictions must also satisfy the principle of proportionality. The restriction should pursue a legitimate governmental objective and must have a reasonable connection with the public order concern sought to be addressed. It should also be considered whether the same objective can be achieved through a less restrictive alternative that places a lesser burden on the right to peaceful protest. Therefore, the legality of restriction depends not only on the existence of a public order concern, but also on whether the restriction is necessary and proportionate to the harm sought to be prevented.
PROTESTOR’s RIGHTS v. THE RIGHTS OF OTHERS
The exercise of the right to protest does not take place by overriding the rights of others. Protects are conducted in public spaces which may affect or disturb the life, liberty, privacy,safety, access and peaceful enjoyment of those residing in the surroundings. The protests held at Jantar Mantar, Delhi happened at a substantial level which resulted in conflict of interests of the right of the protesters to protest and the people living in the surroundings. The issue is consequently not one of choosing between “protesters” and “the public” but of determining how competing constitutional interests can co-exist. Basically, it is not the option that has to be chosen that whom are we supposed to protect, it is a balance that needs to be established.
COMPARATIVE ANALYSIS
As a democracy, we have witnessed multiple cases where protests have occurred for various reasons and in such circumstances a balanced approach has been chosen to ensure justice and reasonableness.
In Himat Lal K. Shah v. Commissioner of Police[9], the Supreme Court recognised the State’s authority to regulate public assemblies while holding that such regulatory power could not be exercised arbitrarily so as to effectively deny the right itself.
Mazdoor Kisan Shakti Sangathan v. Union of India[10] subsequently adopted a balancing approach in the context of demonstrations. The Court made it clear that giving complete primacy to one right at expense of another would amount to the total extinction of the latter, rather than genuine balancing.
In Amit Sahni v. Commissioner Of Police[11], the Court further emphasised the importance of regulating the place and manner of protest, holding that public ways and spaces cannot be occupied indefinitely when such occupation causes grave inconvenience to commuters.
Taken together, these decisions reveal that The Supreme Court has neither denied the right to protest nor the public order, decency or morality. It is of utmost importance to attain a balanced approach between the both. The favour-ism of one right over the other does not result towards a reasonable approach. The challenge therefore lies in application of the restrictions may not be so rigid that they undermine the underlying cause of the protest itself.
CONCLUSION
The right to protest is definitely a cornerstone of the democracy. It protects the rights of the citizens to express their speech and expression of ideas. A healthy democracy, is the one which responds to growth rather than suppressing it by striking out the opinions, demands and oppositions of the people. The right to peaceful protest without arms is a fundamental right protected in India. Although, the right to protest is not an absolute right keeping in consideration the public order. It is a balance between regulation of public-order and the right to legitimate protests. The constitutional approach also provides a balance between the both rather than overlooking either one. A democracy never fears a peaceful protest rather it has the constitutional maturity to accommodate dissent without allowing it to undermine the rights and freedoms of others.
REFERENCES
[1] Sanjana Hooda , ‘Of Protests, Punlics and Law: Shaheen Bagh as an Instance of Legal Mobilization’ (2025) 18(2) Erasmus Law Review 27, 27-43
[2]INDIA CONST. art.19, cl. 1(a)
[3]INDIA CONST. Art.19, cl.1(b)
[4]INDIA CONST. Art. 19, cl. 3.
[5]INDIA CONST. Art.21.
[6] In Re: Ramlila Maidan Incident v. Home Secretary, Union of India, (2012)5 SCC 1.
[7]Himat Lal K. Shah v. Commissioner of Police , Ahmedabad, (1973) 1 SCC 227
[8]Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324.
[9]Himat Lal K. Shah v. Commissioner of Police , Ahmedabad, (1973) 1 SCC 227
[10]Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324.
[11]Amit Sahni v. Commissioner of Police, (2020) 10 SCC 4390