India was confronted with a deeply troubling question concerning the survival of its constitutional freedoms. Advocates, students, journalists were reportedly detained by law enforcement personnel while protesting peacefully in the capital of India. The incidents raises concerns that extend far beyond the detention of individuals. It touches the very foundation of our democracy and the principles enshrined in the Constitution of India, The Constitution of India is not merely a compilation of legal provisions. It is the supreme expression of our collective constitutional values and the instrument through which the exercise of public power is regulated. It's essential principles include natural justice, reasonableness, fairness and non-arbitrariness. But can the State invoke “public order” to restrict a peaceful protest when there is no demonstrable threat to public tranquillity, and can the exercise of a fundamental right under Article 19 be curtailed merely because citizens choose to dissent?
The restrictions permitted by the constitution are intended to address genuine threats to public order and are not a license to supress dissent or silence peaceful opposition. The power to impose reasonable restrictions upon fundamental rights cannot be exercised arbitrarily or merely because a protest challenges the or questions the exercise of its authority. A dissenting voice cannot be considered to a creation of disorder and criticism is not a crime. Any kind of restrictions upon the freedoms guaranteed under Article 19 must satisfy the constitutional test of reasonableness, non-arbitrariness, necessity and proportionality. In a constitutional democracy, the State is entrusted with the responsibility of maintaining public order while equally respecting the freedoms that give democracy its meaning. The Constitution does not require citizens to remain silent to preserve peace rather it requires the State to preserve peace without unnecessarily silencing its citizens.
Article 19 of the Constitution guarantees freedoms that are indispensable to a democratic society. Article 19(1) (a) protects freedom of speech and expression, while Article 19(1) (b) guarantees the right to assemble peaceably and without arms. Together, these provisions protect the ability of citizens to express disagreement, assemble collectively and raise their voices against decisions they consider unjust. These freedoms, however, are not absolute. The Constitution permits reasonable restrictions in specified circumstances. Under Article 19(2), restrictions on speech may be imposed on constitutionally recognised grounds, including public order. Article 19(3) permits reasonable restrictions on peaceful assembly in the interests of the sovereignty and integrity of India or public order.
What Does “Public Order” Actually Mean?
The expression “public order” cannot be interpreted so broadly that every inconvenience, disagreement or minor disturbance becomes a justification for restricting fundamental rights under the garb of a statement , “It is disturbing the Public Order. In Dr. Ram Manohar Lohia vs State of Bihar and Others on 7 September, 1965 Supreme Court of India explained the distinction between law and order, public order and the security of the State through the analogy of three concentric circles. Law and order represent the broadest category, public order occupies a narrower sphere, and security of the State lies at the innermost level, The principle is significant which states that every breach of law and order does not necessarily amount to a disturbance of public order. In the case of Arun Ghosh v. State of West Bengal, 1970 CRILJ 1136, the Court emphasised the distinction between conduct affecting particular individuals and conduct disturbing the tranquillity of the community at large, this distinction demands careful consideration. The mere gathering of people, the raising of slogans, criticism of the government or the need to manage traffic does not automatically establish a threat to public order. The relevant question is whether there exists a genuine and sufficiently proximate threat to public peace that warrants the restriction being imposed.
The Constitution does not prohibit the State from regulating public assemblies. Authorities may prescribe reasonable conditions concerning routes, timings, locations and the use of public spaces to ensure that competing rights and legitimate public interests are protected. In Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, (1973) 1 SCC 227, the Supreme Court recognised the authority to regulate public meetings in streets while making clear that such regulation cannot become an arbitrary denial of the right to assemble. There is, however, a fundamental difference between regulating a protest and preventing it altogether. In Re: Ramlila Maidan Incident, (2012) 5 SCC 1, the apex Court examined the legality of police action against a gathering at Ramlila Maidan and reaffirmed the importance of protecting constitutional liberties against excessive and arbitrary state action. The judgment serves as a reminder that the right to peaceful protest cannot be suppressed merely because the expression of dissent causes inconvenience or displeasure to those in authority. While the State may impose reasonable restrictions on public demonstrations in accordance with the Constitution, such restrictions must satisfy the requirements of legality, necessity, reasonableness and proportionality. The principles of natural justice and non-arbitrariness are equally indispensable. A person cannot lawfully be deprived of liberty merely at the discretion or convenience of an authority. State action must be supported by law, exercised for a legitimate purpose and remain open to scrutiny.
Natural Justice, Proportionality and Non-Arbitrariness
The exercise of State power must satisfy the principles of fairness, reasonableness and non-arbitrariness. Restrictions upon fundamental rights cannot rest solely on administrative convenience or an unexplained assertion that public order may be affected.In Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 and K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, the Supreme Court developed and applied proportionality as an important constitutional standard for assessing restrictions on rights. The proportionality inquiry requires attention to the legitimacy of the objective, the relationship between the measure and that objective, the availability of less restrictive alternatives, and the balance between the measure's impact on rights and the public interest it seeks to protect. The existence of legal authority to issue an order does not, by itself, establish that its exercise was justified in the circumstances. Equally, procedural safeguards matter. The principles of natural justice and non-arbitrariness require public authorities to act within the law, apply relevant considerations and avoid decisions driven by unfettered discretion. These are not technical obstacles to effective administration. They are constitutional safeguards against the misuse of public power.
A constitutional State must thrive to fulfil both. Where a genuine threat exists, proportionate and legally authorised preventive measures may be justified. Where a dissent remains peaceful and there is no material indicating a real and proximate threat to public order, the justification for imposing severe restrictions becomes substantially more difficult to establish. The restrictions imposed without adequate justification can have consequences beyond the immediate incident, they may discourage citizens from exercising their rights, weaken public confidence in institutions and create the impression that peaceful disagreement carries an inherent risk of punishment. The constitutional guarantee of peaceful assembly would lose much of its practical meaning if its exercise depended entirely on whether those in authority welcomed the message being conveyed.
The restrictions permitted by the Constitution are intended to respond to genuine threats; they are not a licence to prevent dissent. Article 19 recognises that the freedoms of speech and peaceful assembly are subject to carefully defined limitations, but those limitations must not swallow the rights they are meant to regulate. Where an assembly is peaceful and unarmed, the State must identify a constitutionally permissible and factually supported basis before imposing restrictions. Public order cannot be invoked as a formula that automatically validates prohibition, detention or the suppression of public expression.
Author is an Advocate practicing at Delhi High Court. Views are personal.