The Right To Protest And The Limits Of State Restriction

On 20 July 2026, Delhi Police confronted a march by Gen-Z protesters demonstrating against the education system and demanding reform. Reports emerged of tear-gas shelling and lathi charges against the protesters. According to the record placed before the Supreme Court by senior advocate Gopal Sankaranarayanan, no prohibitory order under Section 163 of the Bharatiya Nagarik Suraksha Sanhita (“BNSS”) had even been issued for the site, and the Delhi Police’s own standard operating procedure, which requires a loudspeaker warning and a water-cannon stage before lathis and tear gas, to be used, was never followed.

Chief Justice Surya Kant himself observed that the guidelines the Supreme Court laid down in 2018 for handling protesters need to be made more stringent in 2026, and signalled his intention to constitute a Special Investigation Team while ordering the release of detained students with no criminal antecedents. Just days earlier, Mumbai Police had invoked Section 37 of the Maharashtra Police Act to ban the “unlawful assembly of five or more persons” across the city for two weeks, before any protest had even been staged.

These examples are not isolated; they are symptoms of a larger pattern. India's protest-management apparatus increasingly treats prohibition as the default and permission as a discretionary favour, even though the constitutional text and the Supreme Court's own doctrine require exactly the opposite.

Articles 19(1)(a) and 19(1)(b) of the Constitution of India lay down the rule; Articles 19(2) and 19(3) are narrow exceptions to it. Under the settled maxims for construing derogation clauses, the burden of justification falls on the authority seeking to limit the right, not on the citizen seeking to exercise it. The implication is clear: limitations on the right to protest must be interpreted strictly – narrowly worded, confined to enumerated grounds, and proportionate in application – because that is precisely what the Court's own precedent prescribes.

Constitutional Framework

Kaushal Kishor v. State of U.P. (2023) saw a five-judge bench unanimously hold that the grounds listed in Article 19(2) are exhaustive, and that no restriction can be traced to a reason lying outside that closed list. There is no principled reason why the same exhaustive-list reading should not extend equally to the analogous provision in Article 19(3).

That a Section 163 BNSS order has stood, year after year, along Parliament Street, or that a preventive ban has been clamped on an entire city in anticipation of some future assembly, cannot be justified merely by invoking the words “public order” when the real reason is administrative convenience or the fear of unpopularity.

Judicial Position

This is precisely what Himat Lal K. Shah v. Commissioner of Police (1973) established over five decades ago: the right to assemble, part of Article 19(1)(b), may be regulated by the state, but regulation cannot be turned into prohibition. In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Delhi Police Commissioner was directed to devise a mechanism for regulating protests rather than simply interdicting the right or displacing it through relocation.

In Re: Ramlila Maidan Incident (2012), the Court held that an order under Section 144 of the Code of Criminal Procedure, the forerunner to Section 163 of the BNSS, must rest on underlying material facts, an imminent threat, and a genuine need for preventive steps. It cannot be deployed pre-emptively simply to forestall trouble. Measured against that standard, neither the Mumbai orders nor the practice of “rolling” prohibitory orders, raised by counsel for the petitioners before the Supreme Court in July, can stand.

Digital Restrictions

The logic governing digital restrictions follows the same pattern. In Anuradha Bhasin v. Union of India (2019), the Supreme Court read a requirement of proportionality and periodic review into the Telecom Suspension Rules, holding that shutdown orders must be published and cannot be indefinite.

The figures in Access Now's report on internet shutdowns are striking: India recorded the second-highest number of shutdowns worldwide, 65 by the end of 2025, behind only Myanmar’s 95. Of the 2,102 shutdowns Access Now has recorded worldwide since 2016, 920 have occurred in India. Jammu and Kashmir authorities have gone further still, using Section 163 BNSS orders to prohibit VPN use outright, closing the loophole through which most residents had been circumventing earlier shutdowns.

Balancing Rights

None of this suggests that citizens may occupy public space without any restriction. In Amit Sahni v. Commissioner of Police (2020), the Court held, in paragraph 17, that “a public road may not be shut indefinitely, in the locality which is not even intended for holding agitations.” The bench balanced the protesters' rights under Article 19 against the right of the commuting public flowing from Article 19(1)(d) and Article 21.

That, however, is a different mode of analysis – a horizontal balancing between competing private rights, not the vertical exercise of the state's power to restrict under Article 19(2) or (3). The two are routinely conflated in practice, which is itself a failure of strict construction: a horizontal-balancing case like Amit Sahni says nothing about when the state may invoke Article 19(2) or (3) against a citizen. This July, Delhi Police erroneously invoked the horizontal-balancing logic from the Shaheen Bagh line of cases to justify its authority to impose blanket bans across the city.

The Five Principles

The doctrine of strict construction yields five principles that current practice has largely abandoned:

● reasons must be given in advance, not after a prohibition order has already been enforced;

● sunset clauses must be built in, rather than relying on periodic renewals;

● internet and VPN restrictions must be treated as measures of last resort, adopted only after serious scrutiny;

● the intensity of state action must be proportionate to a demonstrated threat, not merely an anticipated one; and

● judicial review must not shift the burden of reasoning from the state onto assembled citizens.

As the Court's own precedent shows, this doctrine has existed for five decades. What 2026 exposed, then, is not a gap in the law but a failure to enforce it.

Conclusion

The fundamental right to protest cannot be extinguished simply because it inconveniences the government. The framers laid down the basic guarantee in Articles 19(1)(a) and (b), with Articles 19(2) and (3) creating exceptions that must always be well-justified, specific, and proportionate. What 2026 has shown is that the problem today is not an absence of constitutional and judicial guarantees, but a failure in how those guarantees are enforced.

If prohibitory orders, preventive measures, and internet shutdowns become the routine response to anticipated dissent, the exception will become the norm. The task before courts and authorities, then, is not to invent new guarantees but to enforce the ones that already exist.