RIGHT TO PEACEFUL ASSEMBLY IN INDIA

Why In News?

The Delhi Police denotified Jantar Mantar as a protest site, relocating public demonstrations to Ramlila Maidan, CBD Ground, and Burari Ground, reigniting debate over the Right to Peaceful Assembly.

What Is The Constitutional Framework Guiding The Right To Peaceful Assembly In India?

Fundamental Guarantee Under Part III: Article 19(1)(b) of the Constitution guarantees all citizens the fundamental right to assemble peaceably and without arms. 

• This freedom, alongside Article 19(1)(a) (Freedom of Speech and Expression) and Article 19(1)(c) (Right to Form Associations), forms an essential pillar of participatory democracy.

The "Golden Triangle" Synergy: The Supreme Court has established that Article 14 (Equality Before Law), Article 19 (Fundamental Freedoms), and Article 21 (Right to Life and Personal Liberty) form an indivisible "Golden Triangle". Curtailing assembly rights directly impinges upon collective expression and democratic accountability.

Express Scope Of Reasonable Restrictions: Under Article 19(3), the State can impose "reasonable restrictions" on assembly rights only on two statutory grounds: sovereignty and integrity of India and public order. 

• Grounds such as decency, morality, or defamation apply exclusively to speech under Article 19(2) and cannot be lawfully used to restrict peaceful gatherings.

Burden Of Proof On Executive: Fundamental freedoms are the rule, and restrictions are the exception. When executive action curtails assembly rights, the legal onus rests squarely on the State to prove that its interference falls within the permissible boundaries of Article 19(3) and satisfies constitutional scrutiny. 

How Public Protests Are Regulated In India?

Shift From Notification To Permit Regimes: While international standards under Article 21 of the International Covenant on Civil and Political Rights (ICCPR) advocate a simple "notification regime", Indian administrative practice operates through a restrictive "permit regime" requiring prior police permission and No Objection Certificates (NOCs).

Statutory Machinery For Prohibitory Orders: Executive Magistrates utilize Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (formerly Section 144 of the Code of Criminal Procedure, 1973) to issue prohibitory orders prohibiting assemblies of 5 or more persons based on apprehended breaches of peace.

Emergent Executive Powers And Overreach: In Madhu Limaye vs Sub-Divisional Magistrate (1970), the Supreme Court ruled that prohibitory powers under Section 144 CrPC are emergency instruments intended for immediate prevention, requiring written recording of material facts rather than mechanical re-issuance. 

How Judiciary Defined Reasonable Restrictions On Assembly?

The Doctrine Of Regulation "In Aid Of Right": In the Himat Lal K. Shah vs Commissioner of Police, Ahmedabad (1973), the apex court held that the State's power over public streets is limited to regulation in aid of assembly.   

Tripartite Distinctions In Public Disorder: In Ram Manohar Lohia vs State of Bihar (1966), the court conceptualized public peace in three concentric circles: law and order (broadest), public order (middle), and security of the State (narrowest). Minor local disturbances or commuter inconveniences do not amount to a threat to public order.

Four-Fold Proportionality Test: Reaffirmed in K.S. Puttaswamy vs Union of India (2017) and Anuradha Bhasin v. Union of India (2020), any executive restriction on assembly must meet four criteria: legitimate goal, rational connection, necessity (least restrictive measure), and proportionality sensu stricto (proportionality in the narrow sense).

Designated Protest Spaces vs "Sight And Sound": In Amit Sahni vs Commissioner of Police (Shaheen Bagh Case, 2020), the court held that public ways cannot be occupied indefinitely. 

• However, under UN Human Rights Committee General Comment No. 37 (2020), restrictions must ensure assemblies remain within the "sight and sound" of their target audience. 

What Are The Challenges In Guaranteeing Assembly Rights?

Preemptive Digital Surveillance And Data Profiling: Modern law enforcement prospectively gathered digital intelligence to preempt demonstrations before citizens gather.

• Example: Anti-CEC Protests (October 2026), the Delhi Police compiled a centralized database cataloging 500 organizers by scraping 200 messaging channels across WhatsApp, Telegram, and Instagram, making deterrent calls and detaining over 5,000 citizens preemptively under Section 163 BNSS.

Excessive Force And Absence Of Crowd Control Accountability: State responses often bypass graduated crowd-management protocols, deploying lethal or excessive force against non-violent gatherings.

• Example: Thoothukudi Sterlite Protest Incident (May 2018), police opened fire on environmental agitators demanding the closure of a copper smelter, killing 13 protesters, with forensic reports revealing 12 victims were shot in the head or chest from behind.

Misuse Of Extraordinary Anti-Terror And Preventive Laws: Administrative authorities frequently invoke severe penal statutes to convert routine protest participation into non-bailable security offences.

• Example: Anti-CAA Protests (2019-2020), student activists organizing non-violent road blockades were charged under Section 10 and Section 43D(5) of the Unlawful Activities (Prevention) Act (UAPA), 1967, blurring the line between democratic dissent and terrorist activity.

Arbitrary Mass Detentions And Spatial Dislocation: Physical containment and preventive arrest are deployed routinely as administrative conveniences to neutralize civic mobilization.

• Example: Ramlila Maidan Midnight Crackdown (June 2011), police deployed tear gas and lathi charges at midnight against a peaceful gathering of 50,000 anti-corruption protesters, an action ruled by the Supreme Court as an unconstitutional assault on fundamental rights.

Way Forward

Transition From Authorisation To Prior Notification: State Governments must amend police manuals to replace discretionary permission requirements with transparent, time-bound advance notification frameworks.

• Example: UN General Comment No. 37 (2020) Framework, establishing that failure to notify authorities must not render an assembly unlawful nor serve as a legal basis for dispersal, arrest, or criminal prosecution.

Institutionalizing Police Reforms And Graduated Crowd Control: Security forces must undergo mandatory reorientation to transition from "mob control" to "rights facilitation".

• Example: Prakash Singh Directives (2006) & Model Police Act (2006), enforcing operational segregation of law-and-order duties from criminal investigations, mandatory identification badges on uniforms, and adherence to UN Basic Principles on the Use of Force and Firearms.

Judicial Oversight And Proportionality Safeguards: Executive orders imposing bans or transit shutdowns must be subjected to immediate judicial review and strict sunset clauses.

• Example: Anuradha Bhasin Guidelines (2020), mandating that all prohibitory orders under Section 163 BNSS and telecom suspension rules be published publicly, state explicit material facts, and adhere strictly to the least-restrictive-means principle.

Conclusion

The right to peaceful assembly under Article 19(1)(b) is an essential democratic mechanism for citizen accountability. Reconciling public order with fundamental freedoms requires replacing arbitrary police discretion with transparent notification regimes, graduated crowd management, and strict judicial adherence to the doctrine of proportionality.

Source: THEHINDU