There is a sort of absurdity buried in the everyday practice of Indian public life i.e., to protest against the state, one must first ask the state for permission. The demonstrator against a police excess must approach the very police station whose conduct is in question; the villager objecting to a land acquisition must seek the district magistrate’s leave, when the magistrate is the acquiring authority; the student aggrieved by a university’s decision must obtain the vice-chancellor’s clearance to hold a dharna (sit-in) at the gate. The right that is supposed to speak against power is, at its very threshold, made to genuflect before power. This essay argues that the constitutional right to protest and the administrative regime of protest permissions cannot coexist without one hollowing out the other, and that the two must be prised apart. The state may retain, indeed, must retain, the power to police violence. But it cannot retain a prior gatekeeping power over who may assemble, where, and when. That power is not a “reasonable restriction” on the right to protest and rather it is a substitute for it.
Colonial hangover and Constitutional Rights
Article 19 (1) (b) of the Constitution guarantees to every citizen the right “to assemble peaceably and without arms.” The clause reads as a right, not as a licence. It was drafted by people, Ambedkar, Patel, Munshi, Ayyar, who had themselves been the objects of a Raj-era regime that criminalised assembly. The very provisions still used to disperse and pre-empt protests today, Section 144 of the erstwhile Code of Criminal Procedure (now Section 163 of the Bharatiya Nagarik Suraksha Sanhita), the police licensing powers under the various state Police Acts are in their bones, colonial. Section 144 traces back to 1861, drafted in the wake of 1857 by a colonial administration whose interest in “public order” was frankly the order of a foreign occupation. These provisions survived the constitutional transition without the searching examination they deserved, and they now sit comfortably under a rights charter they were never meant to serve.
The Constitution does permit “reasonable restrictions” on the right to assemble under Article 19(3), in the interests of the sovereignty and integrity of India or public order. But a “restriction” is not the same as a “permission requirement”. A restriction operates on conduct: it says you may not throw stones, you may not carry arms, you may not incite violence. A permission requirement operates on the right itself: it says you may not exercise the right at all unless an official first agrees that you may. The Supreme Court has repeatedly said, most memorably in S. Rangarajan v. P. Jagjivan Ram (1989), that any restriction on Article 19 rights must have a “proximate and direct nexus” with the mischief sought to be prevented — it cannot be a “remote, conjectural or far-fetched” apprehension. Permission regimes fail this test by design: they treat every citizen who wishes to assemble as a presumptive threat, requiring them to disprove a danger that has not yet materialised.
The Two Justifications, and Why Both Collapse
The defenders of permission regimes offer, essentially, two justifications. The first is the protection of the rights of others, the commuter’s right to move, the shopkeeper’s right to trade, the resident’s right to quiet. The second is the maintenance of law and order i.e., the fear that assemblies will turn violent, that competing groups will clash, that the police force will be overwhelmed. Both, on inspection, dissolve into arguments not for permission but against protest itself.
Rights vs. Rights
Consider the first. The claim that protests must not disturb the rights of others rests on a strange picture of what protest is for. A protest that inconveniences no one, that is safely tucked into a fenced enclosure at Jantar Mantar or a designated “protest ground” three kilometres from any centre of power, is not a protest in any meaningful sense. It is theatre performed to an empty house. The whole point of assembly, historically and philosophically, is to make a claim visible by making it felt. The villagers whose lands are being acquired for a highway that serves urban commuters cannot articulate their grievance more powerfully than by sitting on that very highway for a day. The disruption is not incidental to their message; it is their message. It says that the road that will be built at the cost of our fields is not, at this moment, more important than our objection. It forces the commuter, who would otherwise pass through obliviously, to briefly inhabit the same inconvenience the villager is being asked to inhabit permanently.
This is what Judith Butler calls the “performative” dimension of assembly: bodies gathered in public space are themselves a form of political speech, prior to and independent of any slogan they might shout. Hannah Arendt, in The Human Condition, argued that the political is precisely what appears in public space[1]; to deny appearance is to deny the political. And the Indian tradition, from Gandhi’s satyagraha onwards, has never pretended that legitimate protest is unobtrusive. The Salt March was illegal. The Champaran movement violated orders. If we take seriously the idea that Article 19(1)(b) protects a right of political appearance, then some measure of disruption to others is not a defect of the right. It is constitutive of it. Rights, as Ronald Dworkin put it, are trumps against ordinary utilitarian calculations; the fact that a protest inconveniences many does not, without more, defeat the right of the few to hold it.
None of this collapses into a licence for anything. A protest that blocks an ambulance, that occupies a road indefinitely for months, that targets private homes to intimidate, these can be regulated by ordinary law. What cannot be sustained is the conversion of the possibility of such conduct into a prior permission regime that treats every citizen as a suspect.
Law and order
The second justification is maintenance of law and order. The claim is that assemblies produce violence, and that permission regimes let police pre-position resources, prevent clashes between rival groups, and generally keep the peace. But we need to see what the argument actually asks the police to do. It does not ask them to act against violence when it occurs; it asks them to decide, in advance, which ideas and which groups are dangerous enough to be denied assembly. This is not policing conduct; this is policing politics. The right against prior restraint, which the Supreme Court has recognised in the context of speech at least since Brij Bhushan v. State of Delhi (1950), applies with equal force here. The state may punish what has gone wrong; it may not pre-emptively silence what has not yet happened.
If violence is genuinely apprehended, the police already have every tool they need. They can be present. They can intervene. They can arrest. The Supreme Court in IN Re Ramlila Maidan Incident v. Home Secretary (2012), examining the midnight crackdown on Baba Ramdev’s sleeping supporters, held emphatically that even where a gathering has become legally impermissible, the state’s response must be proportionate and cannot substitute brute force for lawful procedure. The Court’s reasoning cut both ways: as the state cannot use disproportionate force to disperse, it cannot use disproportionate suspicion to pre-empt.
The “Overwhelmed Police” Objection
The most sophisticated version of the law-and-order argument is the resource one i.e., what if bad-faith actors mobilise many small protests at once precisely to stretch the police thin, creating openings for genuine disorder elsewhere? The objection deserves a serious answer, and there are at least four.
First, this is a factual worry that assumes a policing infrastructure of the 1970s. The contemporary Indian state has surveillance capacities, CCTV networks, social media monitoring, drone reconnaissance, cell phone tower triangulation, that make coordinated deceptive mobilisation far harder to pull off than the objection assumes. If anything, the state’s problem today is an excess of pre-emptive information, not a deficit.
Second, this risk already exists under the permission regime. Permissions are routinely violated, spontaneous gatherings routinely occur, and the police already deal with more assemblies than they have formally licensed. The permission requirement does not solve the “stretched thin” problem; it merely gives the state an additional charge to file against organisers after the fact. The regime is redundant to the risk it claims to address.
Third, if a society genuinely has the political conditions for the kind of mass simultaneous mobilisation the objection imagines enough anger, enough distrust of the police, enough coordination against the state, then the answer is not more suppression. Suppression is what produces such conditions in the first place. Every serious student of political violence, from has documented that closed political systems, where legitimate outlets for grievance are shut down, are the ones that eventually explode. The permission regime is a pressure cooker with no whistle. Detangling protest from permission is not a concession to disorder; it is one of the surest ways to prevent the disorder that comes from bottled dissent.
Fourth, and most fundamentally, laws should not be framed around their most extreme abuses. The law of contract is not written for the fraudster, though fraudsters exist; the law of property is not written for the thief. To write the law of assembly around the imagined tactician who orchestrates diversionary protests is to write it for a caricature, and then to impose that caricature’s costs on every ordinary citizen who wishes to hold a candlelight vigil. Law-making is not a war between extremes; it is a negotiation between the ever-armed police and the sometimes-angry protester, and it must give the ordinary citizen the benefit of a presumption of good faith.
What the Indian Courts have actually said
Indian constitutional jurisprudence is more sympathetic to this argument than the daily practice of policing suggests. In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad (1973), a Constitution Bench struck down a police rule that required prior permission for public meetings on public streets, holding that while the state may regulate the manner of assembly, it cannot vest an official with uncanalised discretion to refuse it altogether. In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Court reaffirmed the right to peaceful protest as fundamental and directed the police to formulate guidelines that did not effectively extinguish it. Even Amit Sahni v. Commissioner of Police (2020), the Shaheen Bagh judgment, which held that public roads cannot be occupied “indefinitely”, was careful to note that the right to protest is constitutionally protected and that the state’s response must respect it, the Court’s concern was with duration and specific location, not with the existence of the assembly.
This is not to say that the Supreme Court or Judiciary shares the philosophy of this article in its entirety. In all the three judgements mentioned above, the court’s stance was that the police could regulate protests but not arbitrarily and such regulation included permission regime. It needs emphasis here that discussions on state’s power to curb freedoms and the right of citizens cannot be expected to have outright support from institutions of state like the judiciary.
What is important here therefore is the through-line in these judgments i.e., a recognition that Article 19 (1) (b) is a right, not a licence to be dispensed. Yet the ground-level practice i.e., station house officers refusing permissions on vague “law and order” grounds, proceeds as though the right did not exist. There is a wide gulf between the constitutional as lived at a police thana (local police station), and the gulf is filled by permission.
Detangling: A Constitutional Proposal
Detangling protest from permission does not mean abolishing all regulation. It means inverting the default setting as we see today. The right to assemble should be presumed; the state’s role should be to facilitate it and to intervene against specific unlawful conduct when and only when it occurs. Notification, telling the police in advance that an assembly is planned, so they may be present, is compatible with a rights regime. Permission, the police deciding whether the assembly may occur at all, is not.
This is not a radical proposition. It is what Article 19 (1) (b) already says, if we take its language seriously. The word “peaceably” in the clause is a description of the protected assembly; it is not a condition precedent that some official must certify. A peaceable assembly is protected because it is peaceable; if it ceases to be so, the ordinary criminal law applies. There is no constitutional space, between these two propositions, for a permission regime that treats peaceable citizens as presumptively dangerous.
Ambedkar warned, in his final speech to the Constituent Assembly, against the “grammar of anarchy” i.e., the use of unconstitutional methods when constitutional ones are open. It is worth completing his thought. Constitutional methods only remain open if they remain actually available. A right to protest that can be exercised only with the state’s permission, only in the state’s chosen enclosure, only for the state’s chosen duration, is not a constitutional method. It is a courtesy. Ambedkar’s grammar of anarchy takes hold precisely when the grammar of the Constitution has been quietly replaced by the grammar of the licence. Detangling protest from permission is not a departure from Ambedkar’s warning but actually a condition of its fulfilment.
(The author is part of the legal research team of the organisation)
[1] Hanna Arendt, The Public and Private Realm, The Human Condition, Page 59, University of Chicago Press (1998)
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