India’s Right to Protest Cannot Depend on State Approval

Whenever people gather on a road with placards, someone asks, almost reflexively, whether they had permission. The question sounds reasonable, even responsible. But it assumes that the right to protest is something the state grants and a citizen must first collect. It is not. It never was.

Article 19(1)(b) of the Constitution guarantees every citizen the right to assemble peaceably and without arms. It does not say “with the approval of the district administration” or “subject to the mood of the officer on duty”. The only conditions in the clause itself are that the assembly be peaceful and unarmed. A gathering that meets both is exercising a right, not seeking a favour.

The Supreme Court has said as much more than once. In Ramlila Maidan Incident, In Re (2012), it held that citizens have a fundamental right to assemble and protest peacefully, and that arbitrary executive or legislative action cannot take it away. In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), it held that a blanket ban on protest at a long-standing site of dissent could not be sustained. In Kameshwar Prasad v. State of Bihar (1962), it drew the line that matters most: a peaceful demonstration is protected, and a violent one is not. The test was never whether the authorities were pleased. It was whether the gathering was peaceful.

Consider what the alternative would mean. A farmer, a student, a nurse, or a retired schoolteacher decides to stand outside a government office to object to a government decision. If the law required them first to apply to that same government for leave to object, the right would depend on the goodwill of the people being criticised.

The subject of the complaint would also decide whether the complaint may be voiced. The legal tradition has long been wary of that arrangement: no one should be a judge in their own cause, and a right that survives only when its target consents is hardly a right.

This is why the distinction between permission and intimation is not a technicality. Intimation is a courtesy: telling the police that a procession will pass along a particular road at a particular hour, so that traffic can be diverted, ambulances routed, and marchers kept safe. It serves everyone, including the protesters. Permission is different. It carries the power of refusal, and that power is likely to be used against protest when the state is the one being protested against.

None of this means the right has no limits. Article 19(3) allows the state to impose reasonable restrictions in the interests of the sovereignty and integrity of India or public order. The operative word is “reasonable”. A restriction must be proportionate and backed by written reasons that a court can examine. It can regulate the time, place, and manner of a protest. It cannot be used to turn regulation into prohibition.

The same principle applies to the blanket orders that so often arrive just before a gathering, prohibiting assembly across an entire district for days at a time. Preventive powers, now part of the Bharatiya Nagarik Suraksha Sanhita too, exist for genuine and urgent apprehensions of disorder but cannot become a standing order against dissent.

Courts have repeatedly said that such powers must be exercised with application of mind, for a limited time, and on material that can withstand review. A peaceful gathering does not become an “unlawful assembly” because the police paste a notice. “Unlawful assembly” has a legal meaning that depends on the object and conduct of the crowd, not on how inconvenient it is.

Courts have been equally clear about the other side. In Amit Sahni v. Commissioner of Police (2020), the Supreme Court observed that public roads cannot be occupied indefinitely, and that protest must leave room for the daily lives of others. A commuter stuck for hours, a shopkeeper whose customers cannot reach the shop, and a patient who cannot get to a hospital all have rights that matter. But the court was balancing two rights. It was not saying that protest needs a licence to exist. The answer to protest is proportionate regulation, designated spaces, and reasoned orders subject to judicial review. Dissent cannot be presumed guilty.

In June 2021, while granting bail to student activists in a Delhi riots case, the Delhi High Court observed that, in its anxiety to suppress dissent, the state appeared to have blurred the line between the constitutionally guaranteed right to protest and terrorist activity. If such blurring gains traction, the court added, democracy would be in peril.

India’s freedom struggle was built on dissent. People signed petitions, marched, went on hunger strikes, waved flags, and organised processions in the face of a colonial police force that charged with lathis. Many did not wait for a magistrate’s signature before marching. The makers of the Constitution wrote the right into Part III, beyond the reach of any ordinary majority.

Protesters owe their fellow citizens a few things: to stay peaceful, to respect the safety of others, and to inform the authorities so that suitable arrangements can be made. These are fair expectations. The state’s obligation is simpler. It must recognise that citizens have the right to protest peacefully, and that no government department or other authority must grant them permission to do so.

Nearly every party that governs in India has sat in opposition, and every opposition hopes to govern. A protest need not be comfortable. The question for a republic is whether its citizens must ask permission to be heard.

Karanveer Singh is a practising advocate at the Punjab and Haryana High Court in Chandigarh. He is a founder of South Asian Law Chambers, a law firm based in Chandigarh and Delhi.

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