Introduction
In a constitutional democracy, protest is more than a public gathering. It is a means through which citizens express disagreement, demand accountability and participate in public affairs. But the right to protest does not exist in isolation. The State also has a duty to maintain public order and protect the rights and safety of others.
This tension has recently come into focus before the Supreme Court of India. While hearing petitions concerning alleged police excesses during student protests, the Court observed that the right to peaceful and lawful protest is constitutionally protected and that mere agitation cannot justify police excess. At the same time, the Court stressed that violence against police personnel cannot be ignored and indicated the need for a uniform approach to handling public demonstrations.
The latest approach therefore does not place the right to protest above public order. Instead, it points towards a constitutional balance: protect peaceful dissent, regulate genuine disorder and ensure that State action remains proportionate.
What Is the Right to Protest in India?
The Constitution does not expressly use the phrase “right to protest.” However, the right emerges primarily from the freedoms guaranteed under Article 19.
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 freedoms provide the constitutional foundation for peaceful demonstrations, meetings, marches and other forms of collective expression.
However, these rights are not absolute.
Article 19(2) permits reasonable restrictions on freedom of speech and expression in specified interests, including public order. Similarly, Article 19(3) permits reasonable restrictions on peaceful assembly in the interests of sovereignty and integrity of India or public order.
Therefore, the constitutional position is not:
“Every protest must be permitted.”
Nor is it:
“Any protest disturbing administration can be stopped.”
The question is whether the restriction imposed by the State is legally authorised, reasonable and proportionate.
Public Order: The State’s Constitutional Responsibility
Public order is an important constitutional limitation on the freedoms under Article 19.
A protest may begin peacefully but can create genuine public-order concerns if it involves violence, destruction of property, obstruction of essential services or serious threats to other persons.
The State therefore has a legitimate responsibility to:
- regulate the location and timing of demonstrations;
- prevent violence;
- protect public and private property;
- safeguard police officers and members of the public;
- prevent competing groups from coming into violent confrontation; and
- intervene when a peaceful gathering actually becomes unlawful or violent.
But the existence of a protest itself cannot automatically be treated as a public-order threat.
That distinction lies at the heart of the Supreme Court’s latest approach.
What Has the Supreme Court Recently Said?
In July 2026, a Bench headed by Chief Justice Surya Kant, along with Justices Joymalya Bagchi and V. Mohana, considered petitions concerning alleged police excesses during student protests related to examination irregularities.
The Court observed that the right to peaceful, lawful protest is constitutionally guaranteed and that merely because an agitation is taking place, police excess or lathi-charge cannot automatically be justified.
At the same time, the Court recognised that the safety of police personnel matters as well. It indicated that allegations of violence against protesters and allegations of attacks on police personnel both require proper examination.
The Court also indicated that India needs a more uniform protocol for handling public protests, including appropriate space for peaceful demonstrations and mechanisms to deal with genuinely disruptive or anti-social elements.
This is significant because it moves the discussion away from a simple protester-versus-police narrative.
The constitutional question is broader:
How can the State protect the right to dissent while preventing genuine threats to public order?
The Supreme Court’s Approach: Protection Without Immunity
The latest approach can be understood through three principles.
1. Peaceful protest deserves constitutional protection
A peaceful demonstration cannot become unlawful merely because the government disagrees with its message.
Democracy requires space for criticism and dissent. If every inconvenient protest is treated as a public-order problem, constitutional freedoms risk becoming meaningless.
The Supreme Court’s recent observations reinforce this principle by making clear that agitation alone does not justify excessive police action.
2. The right to protest is not a right to violence
Constitutional protection does not extend automatically to violent conduct.
Protesters remain subject to ordinary laws relating to assault, destruction of property, unlawful assembly and other offences.
The State can therefore intervene when individual conduct creates a genuine threat to public safety.
But the response must remain connected to the actual threat.
3. Police power must also remain accountable
The State cannot rely on public order as a blanket justification for excessive force.
If a peaceful crowd is met with disproportionate force, the State’s own conduct may become a constitutional concern.
This is why the Supreme Court’s call for a uniform protocol is important. Clear standards can reduce arbitrary decision-making and create greater accountability for both protesters and law-enforcement agencies.
What About Shaheen Bagh?
The Supreme Court’s decision in Amit Sahni v. Commissioner of Police, 2020 SCC OnLine SC 853, concerning the Shaheen Bagh demonstrations, remains an important part of this debate.
The Court recognised the importance of the right to peaceful protest but held that public ways and spaces cannot be occupied indefinitely.
The judgment reflects an important principle: the right to protest must coexist with the rights of other citizens.
A protest cannot permanently prevent ordinary people from using public roads or accessing essential services merely because the underlying cause is constitutionally protected.
The lesson remains relevant today.
A constitutional right does not become unlimited simply because the cause behind its exercise is legitimate.
The Principle of Proportionality
The most important safeguard in balancing protest and public order is proportionality.
Suppose a peaceful group exceeds the permitted time by a small margin. The appropriate response may be negotiation, warning or regulation.
Now consider a situation involving serious violence or destruction of property. Stronger intervention may become necessary.
The legal response should therefore correspond to the nature and seriousness of the threat.
This approach prevents two extremes:
Under-regulation: allowing genuine violence or serious disruption to continue unchecked.
Over-regulation: treating peaceful dissent itself as a threat requiring coercive force.
The Constitution requires neither extreme.
Why a Uniform Protest Protocol Matters
The Supreme Court’s suggestion of a nationwide protocol could have significant implications.
At present, the practical regulation of protests may involve different local rules, permissions and policing practices.
A clearer framework could establish principles concerning:
- designated spaces for demonstrations;
- communication between organisers and authorities;
- identification of responsible organisers;
- crowd-management procedures;
- warnings before use of force;
- documentation of police action;
- identification of officers deployed during demonstrations;
- protection of protesters, police and bystanders; and
- independent examination of allegations of excessive force.
Such guidelines would not remove the discretion necessary for maintaining public order.
Instead, they could ensure that discretion operates within constitutional boundaries.
What Does the Latest Approach Tell Us?
The Supreme Court’s latest approach suggests that the future of protest law in India should not be framed as “protest versus public order.”
The real constitutional objective is protest with public order.
Citizens must be allowed to criticise the government, demand accountability and assemble peacefully.
At the same time, protesters cannot claim immunity for violence, and the State cannot claim unlimited power merely because a gathering is inconvenient.
The Court’s recent observations therefore point towards a model based on constitutional protection, proportional regulation and institutional accountability.
Conclusion
The right to protest is an essential component of democratic participation, but it exists within a constitutional framework.
The Supreme Court’s recent approach makes one point particularly clear: peaceful protest cannot itself become a justification for excessive State force. At the same time, constitutional protection does not permit violence or disregard for the rights and safety of others.
The challenge for Indian constitutional law is therefore not to choose between liberty and public order.
It is to ensure that both survive together.
A healthy democracy must allow citizens to protest without fear, while allowing the State to regulate genuine threats without suppressing legitimate dissent.
The Supreme Court’s latest approach points towards that middle ground: protect the protest, regulate the disorder, and hold both sides accountable.
Landmark Cases
- Himat Lal K. Shah v. Commissioner of Police, (1973) 1 SCC 227 — recognised that public streets may be regulated, but the State cannot completely extinguish the right of public assembly.
- Mazdoor Kisan Shakti Sangathan v. Union of India, (2018) 17 SCC 324 — dealt with balancing the right to protest with the rights of residents and the need for reasonable regulation.
- Amit Sahni v. Commissioner of Police, (2020) 10 SCC 439 — held that public spaces cannot be occupied indefinitely in the name of protest.
