Introduction
The violent clashes between protesters and police during the 'Chalo Sansad' march in New Delhi have once again brought to the fore the contentious issue of excessive policing versus civil liberties. This incident underscores the need to examine the constitutional framework, statutory provisions, and judicial interventions that govern protests and police conduct in India.
Constitutional Basis for the Right to Protest
The right to protest is not explicitly mentioned in the Constitution but is implicitly derived from multiple fundamental rights under Part III:
Key Articles:
- Article 19(1)(a): Guarantees freedom of speech and expression
- Article 19(1)(b): Grants the right to assemble peacefully and without arms
- Article 19(1)(c): Ensures the right to form associations or unions
- Article 21: Protects right to life and liberty, encompassing dignity and voice against the State
Reasonable Restrictions:
The right to protest is not absolute. The State can impose reasonable restrictions under:
- Article 19(2): On grounds of sovereignty, security, public order, decency, morality, contempt of court, defamation, or incitement
- Article 19(3): In interests of sovereignty, integrity, or public order
Statutory Framework
Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023
- Section 163: Empowers Executive Magistrates to issue prohibitory orders in urgent situations
Bharatiya Nyaya Sanhita (BNS), 2023
- Definition of Unlawful Assembly: A gathering of five or more persons becomes unlawful only if its common object involves:
- Using criminal force
- Resisting the law
- Committing an offence
- Compelling others by threat
Delhi Police Act, 1978
- Authorizes regulation of assembly routes, timings, and conditions
Standards Governing Police Action and Crowd Control
Democratic Policing Framework
The NHRC's Manual on Human Rights for Police Officers emphasizes:
- Police serve as protectors of citizen rights and rule of law
- Excessive force erodes public trust and escalates civil unrest
International Principles
- UN Basic Principles on the Use of Force and Firearms (1990): Mandate that force must be lawful, strictly necessary, and proportionate
Principle of Minimum Force
Under BNSS, 2023 and Code of Conduct for Police:
- Officers must prioritize warnings, advice, and persuasion
- Only the "irreducible minimum force" may be applied when unavoidable
Accountability Requirements
- D.K. Basu v. State of West Bengal (1997): Requires visible name tags for arresting officers
- Gap: No explicit parallel requirement for crowd-control personnel, creating accountability gaps
Landmark Supreme Court Judgments
| Case | Year | Key Holding |
|---|---|---|
| Ram Manohar Lohia v. State of Bihar | 1965 | Distinguished 'law and order' from 'public order'; restrictions permissible only for genuine public order threats |
| Himat Lal K. Shah v. Commissioner of Police | 1973 | State cannot impose arbitrary restrictions that extinguish the right to protest |
| Re: Ramlila Maidan Incident | 2012 | Citizens have constitutional right to peaceful protest; force must be last resort with maximum restraint |
| Anita Thakur v. State of J&K | 2016 | Excessive police force violates fundamental rights; awarded monetary compensation to injured protesters |
| Mazdoor Kisan Shakti Sangathan v. UOI | 2018 | Police can regulate demonstrations but cannot extinguish the right to assemble |
| Amit Sahni v. Commissioner of Police | 2020 | Dissent is constitutional right but protests cannot indefinitely occupy public spaces or block traffic |
| Anuradha Bhasin v. Union of India | 2020 | Internet shutdowns must satisfy tests of legality, necessity, proportionality, publication, and periodic review |
| Prakash Singh v. Union of India | 2006 | Directed establishment of State Security Commissions, Police Complaints Authorities, and fixed tenure for senior officers |
Concerns Regarding Excessive Policing
1. Political Interference
- Influence over transfers, postings, and investigations undermines police independence
2. Outdated Training
- Inadequate emphasis on human rights, de-escalation techniques, forensic investigation, and community policing
- India signed UN Convention Against Torture (UNCAT) in 1997 but has not ratified it
3. Manpower Shortages
- 155 police personnel per lakh population (January 2024) vs. UN norm of 222
- 21% vacancies in police forces
- 83.8% of personnel report high stress (SPIR 2025)
4. Disproportionate Use of Force
- Tear gas, lathi charges, preventive detention, and mass arrests violate Doctrine of Proportionality
- Departure from UN Basic Principles on Use of Force
5. Lack of Transparency
- Unidentified personnel, masked officers, no visible badges
- Inconsistent with D.K. Basu principles
6. Gender-Sensitive Safeguards Violated
- Manhandling women protesters
- Inadequate deployment of women police personnel
- Violates Article 21 dignity guarantees
7. Digital Restrictions
- Blanket internet shutdowns, signal jammers violate Articles 19(1)(a) and 19(1)(g)
8. Colonial Police Structure
- Police Act, 1861 created force accountable to executive, not public
- Most states continue with colonial framework despite Model Police Act, 2006
Way Forward: Reforms Needed
Immediate Reforms:
- Standard Operating Procedures (SOPs): Training in non-lethal crowd control and negotiation
- Implement Prakash Singh Directives: Operationalize independent Police Complaints Authorities (PCAs) and State Security Commissions (SSCs)
- Separate Investigation from Law & Order: As recommended by 2nd ARC and Malimath Committee
Modernization:
- Expedite Modernization of Police Forces (MPF) scheme
- Fill 21% manpower gap
- Mandate body-worn cameras and CCTV in police stations
SMART Policing:
- Strict and Sensitive
- Modern and Mobile
- Alert and Accountable
- Reliable and Responsive
- Tech-savvy and Trained
International Obligations:
- Ratify UNCAT and pass domestic legislation criminalizing torture
Conclusion
The right to protest is a cornerstone of India's constitutional democracy, while public order remains a legitimate State responsibility. Any restriction must uphold:
- Rule of Law
- Constitutional Morality
- Doctrine of Proportionality
State action must be lawful, necessary, proportionate, transparent, and subject to judicial review. The Chalo Sansad episode underscores the urgent need to balance democratic dissent with public security in accordance with constitutional principles.