Constitutional Protection

A citizen can be arrested for a great many things in India. Peacefully standing at Jantar Mantar with a placard should not, in law, be one of them. Peaceful protest enjoys constitutional protection. It flows from Article 19(1)(a) (free speech and expression), and 19(1)(b) (the freedom to assemble peaceably and unarmed), both qualified by the reasonable restrictions under Articles 19(2) and 19(3).

The Supreme Court has affirmed this repeatedly. In Ramlila Maidan Incident, In Re ((2012) 5 SCC 1), it underscored the centrality of peaceful assembly to democracy while affirming the State's duty to preserve order lawfully. In Mazdoor Kisan Shakti Sangathan v. Union of India ((2018) 17 SCC 324), it went further, recognising protest as a democratic entitlement vital to marginalised groups.

That principle is settled doctrine. The thornier question is no longer whether Indians possess this right, but how easily it can be quietly throttled without ever being formally denied. The farmers' agitation, the movement against the CAA, and student protests over reservations and examinations have shown the street remains a vital theatre of democracy. The events of 2026 sharpened this further: a youth movement over examination irregularities snowballed into a mobilisation that forced Education Minister Dharmendra Pradhan's resignation.

The difficulty deepens when the State restrains protesters themselves. Sonam Wangchuk's hunger strike at Jantar Mantar illustrates this: removed to hospital as his health failed, his wife's plea of illegal detention was rejected by the Delhi High Court as not arbitrary.

Where does legitimate intervention end, and interference with dissent begin? The State cannot keep reaching into a bottomless bag of rules each time a protest becomes inconvenient, and calling it regulation. No court order alone can settle this question. Every exercise of State power touching a fundamental right demands scrutiny.

The Regulatory Vacuum

The larger problem is structural. India has no comprehensive central legislation governing the right to peaceful protest, only a patchwork stitched together from constitutional provisions, judicial precedents, police regulations, executive orders and general criminal law. Section 144 of the CrPC, 1973 (now Section 163 of the BNSS, 2023), has historically served as the principal instrument for regulating assemblies in the interests of public order, while local authorities wield wide discretion over permissions, locations and routes.

This fragmented architecture produces an uncomfortable paradox: a right fundamental in constitutional theory is, in practice, governed by executive whim and local discretion.

None of this suggests the State must stand powerless before every gathering. The right to protest cannot become licence to obstruct essential services, intimidate citizens or resort to violence. But equally, “public order” cannot become a talismanic phrase invoked to smother every inconvenient demonstration. The constitutional task is one of calibration, safeguarding order without letting regulation curdle into suppression.

The Hunger Strike

The question turns thornier still when protest takes the form of a hunger strike. Fasting occupies murkier legal ground, but even here the legislative tide has moved away from treating distress as crime.

Hunger strikes hold a storied place in India's political memory. Gandhi turned fasting into a formidable weapon of moral persuasion, and it would be naive to reduce every hunger strike to a law and order problem. A peaceful fast is, at its core, political expression; yet the State retains a legitimate interest in averting a medical emergency. The question is where intervention becomes permissible, and what safeguards must accompany it.

Section 226 of BNS, 2023 penalises an attempt to commit suicide intended to compel or restrain a public servant, an uneasy provision for hunger strikes waged as political persuasion. A peaceful fast may be dissent; the moment the State recasts it as coercion, criminal liability looms.

This becomes especially urgent in an age of ubiquitous surveillance.

Surveillance and Dissent

The alleged use of facial recognition and biometric surveillance at Jantar Mantar has now reached the Supreme Court, which will hear a challenge to the Delhi Police's deployment of such technology at protest sites on grounds of privacy and its chilling effect on dissent.

The stakes are considerable. If a citizen knows that attending a peaceful demonstration may mean his face is scanned, identified and filed away, the chilling effect can rival an outright ban on assembly. Reports suggest the technology was used to match protesters against police databases, sharpening questions of legal basis and proportionality.

The UK's experience is instructive, if not binding in this context. In R (Bridges) v. Chief Constable of South Wales Police [2020], the Court of Appeal stopped short of declaring facial recognition inherently unlawful, but found a specific deployment failed to be sufficiently “in accordance with the law.”

The lesson for India is not that facial recognition is unconstitutional per se, but that surveillance without a legal basis, safeguards and accountability cannot stand.

A Law for Protest

India's history makes the absence of such a framework striking. This is a country whose political consciousness was forged through protest, Gandhi's satyagrahas, Ambedkar's mobilisation against untouchability, and generations of workers, farmers and students who took to the street when institutions failed them. Protest is not alien to Indian democracy; it is one of the languages that democracy has always spoken.

But protest cannot substitute for institutions either. A government cannot concede every demand merely because it is loudly voiced, nor should citizens be forced to camp on the streets indefinitely because the State refuses to engage. That is where a new legal architecture becomes necessary.

India, then, is left with a paradox: a country of ceaseless protest, but no comprehensive, binding law to govern it, a vacuum that lets the State reach for whatever provision is convenient to suppress dissent and dissenters alike. India needs such a law.

It should guarantee a presumption in favour of assembly, prescribe transparent, time bound permission procedures, and regulate restrictions through written, reviewable orders with a proper appellate process. It should guard against arbitrary detention and intrusive surveillance, define police and protester powers with equal clarity, and for hunger strikes, mandate independent medical assessment rather than expedient removal.

Most importantly, it should institutionalise dialogue. Where a protest concerns a matter within governmental competence and drags on, the authority concerned should be required to engage within a set timeframe, record grievances, and issue a reasoned response, not to concede, but to answer. That distinction is everything.

A true democracy is tested not by the silence of its citizens but by how it handles their dissent. A government that listens does not weaken itself; it strengthens the very institutions dissent is meant to run through. When citizens are forced onto the streets for months merely to be heard, the crisis stops being about protest management and becomes a verdict on the State's responsiveness.

India does not need a law to permit protest, the Constitution has already done that. It needs a law that makes that freedom predictable, protected and accountable, for citizens and the State alike.

Author is a Law Clerk-cum-Research Associate at Supreme Court of India. Views are personal.