Constitution Does Not End At The Barricade

Power has a peculiar affection for collective nouns. The criminal courts teach this early.

A stone is thrown by an individual. A barricade is pushed by identifiable persons. A police officer is struck by somebody who can, and must, be investigated. Yet when the police acts, the individual frequently disappears. In her place emerges "the crowd"-faceless, irrational, contagious and collectively dangerous. Once that transformation is complete, the lathi no longer appears to strike a citizen. It merely "disperses a crowd".

On 20 July 2026, in the streets around Jantar Mantar, that transformation was performed on students who had come to question a minister. The State would describe what followed as a crowd contained and dispersed professionally and with mild force. The hospitals and streets told a different story. What lies between those two accounts is not a quarrel between press releases and political speeches, but a record, much of it still undisclosed, that both will have to answer to.

The protesters had assembled to demand the resignation of the Union Education Minister, accountability for the alleged NEET paper leak, compensation for the families of students whose deaths by suicide they associated with the examination crisis. Seeking to proceed towards Parliament, they found Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 reportedly in operation across the New Delhi district apart from the designated site and were told that no permission had been granted. Barricades were erected; confrontations followed; contemporary accounts and visual material record the use of lathis and tear gas as the police and Rapid Action Force sought to disperse the gathering.

Delhi Police has claimed that more than 118 police and security personnel, including senior officers, were injured. It alleges stone-pelting, deliberate breaches of barricades, vandalism, attacks with various objects and damage to government vehicles and public property.

But not everyone who wielded a lathi that evening is accounted for. Several videos now circulating on social media, separate clips, showing different men, appear to depict individuals in plain clothes, bearing no visible identification, striking protesters alongside uniformed personnel. Their provenance is not independently established; but if the footage is what it appears to be, then who these men were, on whose authority they acted, and why they carried no insignia are among the first things we must seek answers for. Force that answers to no identifiable authority is the most dangerous of all.

Nor did everyone bleeding that evening wear a uniform, though only those who did have been counted aloud. Contemporaneous reporting drawn from Ram Manohar Lohia Hospital sources places the protester figure considerably higher: by about 5.30 pm on 20 July, that hospital alone had reportedly treated close to ninety injured protesters and admitted four to intensive care, injuries including head wounds, fractures and intracranial bleeding. Among the most serious cases is that of a young man admitted to intensive care with intracranial bleeding, in an unresponsive condition. His family attributes those injuries to repeated lathi blows. Whether that attribution is correct is exactly the kind of question an honest inquiry, working from the footage and the medico-legal record, would be required to establish or refute.

These two sets of figures do not sit together comfortably, and they cannot. The asymmetry worth marking is that the police casualty figure was announced; the protester figure has had to be assembled from hospital sources and reporting, because no casualty list and no medico-legal records have been placed in the public domain. Around sixty by the police's own count; close to ninety by the hospital's. That silence is not a neutral fact. It is where the accountability question begins. A police account, after all, is not a judicial verdict; an injury figure, however grave, does not answer any legal question about the force used before, during and after the violence.

The assembly came before the "crowd"

The constitutional starting point is Article 19, not the police barricade. Those who assembled at Jantar Mantar were exercising the interconnected freedoms of speech, assembly and association under Article 19(1)(a), (b) and (c); their bodily integrity was protected by Article 21; and State action against them remained subject to the prohibition on arbitrariness in Article 14.

In Himmat Lal K. Shah v. Commissioner of Police, Ahmedabad (1973) 1 SCC 227, a majority in a Constitution Bench recognized public streets and open spaces as natural sites for public meetings and political communication. Regulation of time, route and manner is permissible; an unguided power to extinguish public assembly is not.

A march to Parliament is not interchangeable with a silent gathering in an assigned enclosure. The place and movement of a protest form part of its message. Parliament was the institution the protesters sought to address. To insist that protest remain visible only to the police surrounding it is to convert the right to protest into a right to speak where power need not listen. Nobody seriously questions whether the State may regulate a march, but seldom do we ask whether it approached regulation as a means of facilitating political communication or approached the assembly from the outset as an adversarial body to be contained?

Section 163 is not a lathi

The argument runs simply enough: “Section 163 was in force. The march was unauthorized. Therefore, the police were entitled to use force.” Each sentence in such argument skips a separate legal threshold.

Section 163 BNSS, successor to Section 144 of the CrPC permits designated Executive Magistrates to issue written preventive orders where sufficient grounds exist and immediate prevention is desirable. Section 163 almost verbatim rehearses the colonial era language of obstruction, danger to life, disturbance of public tranquillity, riot and affray. And yet, Section 163 does not authorize lathi blows. It does not authorize tear gas. It does not authorize police officers to punish people for disobedience.

The immediate statutory authority governing dispersal by civil force is Section 148 BNSS. Force becomes available only where an assembly does not disperse after a lawful command, or shows a determination not to. Even then, for the purpose of dispersal, not punishment, retaliation or intimidation. The legal sequence must therefore remain visible: A preventive restriction is not a dispersal command. A dispersal command is not an automatic license to use force. Authority to use some force does not validate every instrument, target, blow or duration of force.

In Anuradha Bhasin v. Union of India (2020) 3 SCC 637, our Supreme Court held that Section 144 orders must address a genuine emergency, state material facts, satisfy proportionality and adopt the least intrusive measure. Those requirements do not vanish because Parliament renumbered the provision. Section 163 preserves a form of government, inherited across more than a century and a half, in which an executive prediction of disorder can reorganize the rights of thousands before any violence occurs.

Collective liability must not become collective punishment

The law of unlawful assembly contains its own bounded form of collective responsibility. Sections 189 and 190 of the BNS (continuing Sections 141 and 149 of the IPC) make members of an assembly with a common object liable for offences committed by other members in prosecution of that object, without proof that each accused personally landed a blow. That determination, however, belongs to a court after evidence and cross-examination. It is not an operational presumption available to a police officer while dispersing protesters. Proximity does not establish membership; numerical presence does not establish common object; violence by some does not establish violent intent in all. Constructive liability must not leak from the courtroom into a lathi-charge. Collective criminal liability does not authorize collective corporal punishment.

The irreducible minimum

The Ministry of Home Affairs' Code of Conduct for the Police in India (1985) is clear: police must avoid the role of punishing authority and, only when force is inevitable, use the "irreducible minimum" the circumstances require.

That language was given operational content by the Delhi High Court in P.V. Kapoor v. Union of India 1992 Cri LJ 128, arising from police firing during the anti-Mandal protests. Without denying that stones had been thrown, the Court held that the mere presence of an unlawful assembly—or even its failure to disperse—did not by itself justify firing: if a warning can secure dispersal, force is unjustified; the least harmful effective method must be chosen; force may restore order, not punish; and adequate planning, training and deployment are integral to avoiding overreaction. The Supreme Court's decision in In Re: Ramlila Maidan Incident (2012) 5 SCC 1 reinforces the same structure: clear announcements, adequate warning, videography, planning, medical arrangements and safe dispersal are not administrative ornaments but safeguards against the conversion of police power into punishment.

The phrase reportedly used during the Sansad Chalo operation i.e. "mild force" cannot conclude the enquiry. "Mild" is not a statutory category. A lathi blow does not become constitutionally insignificant because an official adjective has been placed before it. Least of all while a hospital some distance away is admitting patients with intracranial bleeding.

The relevant questions are concrete. Was an audible, intelligible dispersal command given? To whom, how many times? Were protesters told where they could safely go, and were the exits open? Was force directed only at persons committing or imminently threatening violence, or did it fall on those who were stationary, retreating, injured or already restrained? Did it continue after the danger had passed? Was each escalation authorized and recorded? And, above all: did the police distinguish between a person who threw a stone and a student who merely stood nearby?

Command cannot be absolved by chaos it helped create

Reports after the event suggest the police had prior intelligence about the expected scale of mobilization, yet field personnel may have lacked coherent command at critical stages. That requires verification. Poor planning may itself produce the very conditions later described as necessitating force: inadequate deployment breeds fear among officers, contradictory instructions breed hesitation followed by sudden escalation, barricades without safe exits create compression, and a failure to negotiate movement turns an avoidable confrontation into a test of authority.

The police cannot compress an assembly, obstruct its exits, command it to disperse, and then treat its resulting inability to move as defiance; a lawful command to disperse presupposes a real and safe means of dispersal. The State cannot negligently manufacture operational necessity and then plead that necessity as a complete defence. The institutional duty of planning exists precisely so that the burden of administrative failure is not transferred onto the bodies of young protesters and junior constables. Responsibility must travel upwards as well as downwards. The easiest course is to prosecute the students visible in the footage. The harder and constitutionally necessary course is to ask who designed the operation, who controlled the barricades, who authorized each escalation, and why less coercive alternatives were not used.

Police officers are not legitimate targets

We will not equivocate. A police officer does not cease to possess bodily integrity because she or he stands behind a barricade, and stones do not become instruments of democratic expression simply because they are thrown during a protest. Assault, destruction of property and deliberate injury are offences, and those who committed them should be identified and the ordinary criminal law invoked. They are entitled to investigation, representation, bail and trial, but not immunity. No serious defence of civil liberties requires romanticising violence against constables, many of whom are themselves placed in danger by confused commands from above.

But criminal law proceeds, or is constitutionally expected to, through the attribution of individual responsibility. The injury of police personnel cannot become a warrant to strike every person brought within the arc of a lathi. Similarly, the alleged misconduct of some protesters cannot extinguish the constitutional status of all the others. Criminal law must address the injury suffered by the protesters and the police. It must not be converted into the language of collective reprisal.

What an honest inquiry would require

An honest account of 20 July cannot be produced through rival litanies of atrocity. The following should be preserved and disclosed: the complete Section 163 order, with its schedule, duration and material facts; the communication refusing permission for the march; operational and deployment plans; the precise dispersal warnings; CCTV, drone, police and body-camera footage; barricade maps and exit routes; orders authorizing tear gas, lathi use, detention or arrest; complete lists of injured protesters and police personnel; and medical and medico-legal records.

Two of those items are already conspicuous by their absence: the complete lists of the injured and the medico-legal certificates i.e. the very records that would settle who was hurt, how, and by whom. One side's casualties were counted in a press statement within hours. The other side's must still be inferred from hospital corridors and video accounts. An inquiry that leaves that imbalance in place has not begun.

Persons shown attacking police personnel, or those acting as police without insignia, shown striking peaceful, retreating or restrained persons should face equally credible investigation. Neither uniform nor its absence, nor political cause, should confer immunity. The police version must be heard but it must not be permitted to adjudicate itself.

The Constitution's difficult test

It is easy to honour freedom of assembly when an assembly is small, silent, orderly and politically harmless. Constitutional freedom is tested when dissent is numerous, inconvenient and directed at those who hold power.

There is an irony the State should be made to confront. The right to assemble was not handed down to this Republic by a benevolent sovereign, it was certainly never bestowed by the Crown. It was written into Article 19 by women and men who had themselves been the assembly an earlier State dispersed. People who had marched, been lathi-charged, been fired upon. People been catalogued in official British files as unlawful gatherings and dangerous crowds. They knew the lathi from its receiving end, and they wrote the freedom of assembly into the Constitution precisely because they understood what a State does to people who gather to question it. A government that meets a peaceful assembly with lathis and tear gas does not merely fail a moral inheritance; it betrays the specific constitutional intention that grew out of it. The question of who are the true legatees of the freedom struggle cannot be asked only of the students. It must be asked, first, of those who wield the lathi.

The State's duty to protect Parliament and its own police personnel does not cancel its duty to protect the citizens who assemble to question them. If protesters assaulted police officers, the criminal law must act; if police officers used unnecessary or punitive force, constitutional accountability must act with equal seriousness. What the law cannot permit is the conversion of alleged violence by individuals into an undifferentiated licence to use force against the whole assembly.

The Constitution does not end where the barricade begins. Nor does citizenship disappear when citizens stand together.

We began by observing that power has an affection for collective nouns. "The crowd" is the State's word. The word that dissolves the student struck by a lathi and the constable struck by a stone into a single ungovernable mass, so that neither need be accounted for by name. Our reckoning must refuse the collective noun. It should read the record back one entry at a time: this blow, this order, this exit that was sealed, this authorization, this unidentified hand, this injury, this name withheld from the casualty list. The young man in the intensive-care unit is not "the crowd." Neither is the injured officer. Each is a citizen to whom the State owes a specific and separate account.

A democratic State must learn to see an assembly before it sees a crowd—and a citizen before it raises the lathi.