Dissent or Disorder? The Conditionalisation of Protest under Article 19 – The Law Blog
Anunay Abhay is a first-year B.A.LL.B. (Hons.) student at Hidayatullah National Law University, Raipur with a keen interest in constitutional law.
On 20 July 2026, thousands of students gathered at Delhi’s Jantar Mantar to protest against the alleged irregularities in the National Eligibility cum Entrance Test. What began as a peaceful demonstration soon turned into a constitutional controversy. The Delhi Police sought to stop the march to Parliament by imposing Section 163 of Bharatiya Nagarik Suraksha Sanhita, 2023, and also barricaded the protest site, fired tear gas, and deployed anti-riot measures.
CJP, a youth movement emerging out of a remark by the Hon’ble Chief Justice of India, has emerged as the leading force in the massive protests against the government and has questioned the irregularities in one of the biggest exams conducted in the country. Moreover, an examination like NEET decides the future doctors of the country, the people directly responsible for the lives of 1.4 billion people of this country. Any leakage to a medical entrance exam raises direct questions about the merit of the doctors. Article 19(1)(a) and 19(1)(b) give citizens of India the fundamental rights of freedom of speech and freedom to assemble peacefully and without arms. As held in The State of West Bengal v. Subodh Gopal Bose, the apex court recognised these as “natural rights inherent in the status of a citizen.” However, these rights are not absolute; Article 19(2) and 19(3) put reasonable restrictions on the right to freedom of speech and the right to assemble peacefully, in the interest of the general public, security of the state, public order, and/or incitement to an offence. The term ‘reasonable restrictions’ has been well disputed, as the Constitution of India does not define what reasonable restrictions are; however, the court has on multiple occasions clarified its scope.
This article aims to provide a legal analysis and discuss the scope of Article 19 of the Constitution and to examine whether the student-led protest in the national capital was constitutional or not. The article also examines whether police deployment of Section 163 BNSS during the NEET protests satisfies the constitutional proportionality standard under Articles 19(2) and 19(3).
Constitutional Framework
Freedom of speech and peaceful assembly lie at the very heart of the democratic framework of the Indian Constitution. Article 19(1)(a) and Article 19(1)(b), when read together, are the constitutional recognition that the democratic participation of citizens of India extends beyond the polling booth; it includes the freedom to express disagreement, mobilise support and hold the government accountable for any kind of irregularities. Hence, the right to protest is not an independent right embedded in the Constitution, but it is an exercise of these interrelated freedoms. Conditionalisation refers to the judicial and executive tendency to make the practical exercise of a constitutional freedom contingent upon increasingly expansive regulatory conditions, even where the right itself remains formally protected.
An important part of these rights is the ‘reasonable restrictions’ that can be imposed by the State on these freedoms in the interest of sovereignty, integrity, security of the state, public order, decency and other recognised grounds. The use of the term ‘reasonable’ is significant in addressing the issue that any governmental action shall be proportionate and must not become a tool for suppressing dissent in response to any public action. Consequently, the constitutional inquiry is not whether restrictions can or may be imposed, but whether they hold a rational and proportionate relationship to the objective sought to be achieved.
Section 163 of the BNSS, 2023, gives Executive Magistrates the statutory powers to propose temporary prohibitory orders, where immediate prevention is necessary to avert danger to human life, health or safety, disturbance of public tranquility, or riot or affray. The provision, in itself, does not at all prohibit assemblies; rather, it creates a statutory mechanism through which the State may regulate the exercise of fundamental freedoms during public disorder. The power given to the executive through Section 163 is preventive, temporary and must only be exercised when the anticipated threat has proximate relation to public order. It is, therefore, not a general provision, but a properly tailored regulatory power.
Evolution of Protest Jurisprudence
Jurisprudence around protest has gradually moved from recognising dissent as a constitutional freedom towards a more complex exercise of balancing liberty against public order. This is a significant evolution as it shifts the paradigm from “whether citizens possess a right to protest” to “how far the State may regulate that right before regulation becomes suppression.” In the landmark judgment of Kameshwar Prasad v. State of Bihar, the court held that peaceful protests constitute a legitimate form of expression protected under Article 19, thereby emphasising that dissent cannot be prohibited by the State. The judgment has established an important distinction between peaceful collective expression and coercive forms of collective action. This is an important distinction, as the Constitution protects expression through collective action, but it does not constitutionalise every method that can be adopted to advance a demand. Raghav Kohli argues that Indian free-speech jurisprudence has historically focused significantly on the ‘purpose behind State regulation’, rather than on the form of the speaker’s conduct.
Himat Lal K. Shah v. Commissioner of Police reaffirmed the principle that while the State may regulate the use of streets to maintain public order and convenience, it cannot impose a blanket prohibition on public meetings. This 1972 judgment drew a constitutional distinction between regulation facilitating the coexistence of competing rights, and prohibition which interdicts the very freedom guaranteed by the Constitution.
Madhu Limaye v. Sub-Divisional Magistrate upheld Section 144 of CrPC (predecessor of Section 163, BNSS) observing that emergency powers may legitimately be used to preserve public order, but only when accompanied by procedural safeguards against arbitrary and excessive use. The judgment affirms that prohibitory orders are constitutional only until they are exercised within statutory safeguards and not as instruments of governance.
Over the years the Court’s jurisprudence has evolved from recognising protests as a protected democratic activity to balancing that protection against competing constitutional interests. In Mazdoor Kisan Shakti Sangathan v. Union of India, the petitioners challenged the Delhi Police’s continuous use of Section 144 of the CrPC (Section 163, BNSS) to place blanket bans on public gatherings and demonstrations near Jantar Mantar in New Delhi. The Court ruled that the citizens have a right to protest, and the right to commute, both of which are not absolute and require harmonising these competing interests rather than giving preference to one over another. These decisions by the apex court demonstrate that Article 19 guarantees the people freedoms, though they are not absolute. The constitutional framework reveals an enduring tension. On one hand, dissent is an indispensable part of democratic governance; on the other hand, the State also has the duty to maintain public order without curtailing constitutional rights.
The approach of a balance became more pronounced in Amit Sahni v. Commissioner of Police, in the appeal brought by advocate Amit Sahni arguing the removal of the Shaheen Bagh protest because the protest blocked public way and was causing inconvenience in commuting. The court held that protests and demonstrations that express dissent must only be organised at designated places. The court ruled that despite having the right to freedom of expression and protest under Article 19, these are also subject to reasonable restrictions and do not extend to every location, duration, or method of protest. This, however, creates its own constitutional danger, as every protest can be interpreted as public inconvenience and can be deemed objectionable. The nature of protest is to cause interruptions to daily political routines and attract the attention of the public and government. Therefore, disruption for public attention and public inconvenience must be managed efficiently; disruption, therefore, cannot be automatically equated with public disorder.
The trajectory shift from Kameshwar Prasad to Amit Sahni reveals an increasing conditionalisation of the right to protest. The bigger question should be, then, whether the restriction on dissent pursues a legitimate constitutional objective and at the same time remains proportionate to the issue sought to be addressed.
Student Protests and Police Action: NEET
The recent student protests at Delhi’s Jantar Mantar provide a particularly contemporary test of the constitutional limits of State intervention. The NEET UG exam paper leak was a major failure of the education system and naturally the students demanded accountability from the ex-Union Education Minister Dharmendra Pradhan. The protesters on 20th July had organised a march towards the Sansad Bhawan. Delhi Police invoked Section 163 BNSS, heavily barricaded the area and deployed tear-gas launchers, armoured vehicles and anti-riot vans to prevent protesters from proceeding towards Parliament.
The situation worsened quickly with reported clashes at four locations, including Sansad Marg, Jantar Mantar and Connaught Place. The police reports described the use of force as “mild”. Other reports documented significant injuries among protesters, with some media houses reporting more than 100 injuries in students by police action. The contrasting reports are significant as the existence of some disorder does not give the State the right to take extreme action against protesters. The Bench of Chief Justice Surya Kant, Justice Joymalya Bagchi and Justice V. Mohana held that the allegations of police brutality form a prima facie case for an independent inquiry. The 1985 Ministry of Home Affairs Code of Conduct for Police limits the use of police force to only when persuasion, advice and warnings render useless and even then only minimum force required must be used. More recently, on 20th August 2026, the Hon’ble Supreme Court has constituted a five-member High-powered Enquiry Committee chaired by Justice R. Subhash Reddy (Retd.). The question to the State here arises that whether less restrictive measures could have achieved the same objectives?
A similar issue was faced in Ramlila Maidan incident of 2012, when police used force against protesters at midnight, the Hon’ble Court held that the use of force against an unarmed assembly must remain the last available option. The ruling recognised that bodily integrity and personal dignity become central constitutional concerns whenever the State employs coercive force against peaceful assemblies.
Moreover, Anuradha Bhasin v. Union of India established that restrictions upon fundamental rights must satisfy legality, legitimate aim, necessity, and proportionality. The burden lies upon the State to justify why less restrictive alternatives were unavailable.
The constitutional protection of Article 19 protecting protest disappears in real life scenarios and equally, protesters cannot claim immunity when their conduct steps into public disorder. State’s test is to balance itself on the thin line between regulation and suppression.
Regulation or Suppression?
The NEET protest demonstrates that Article 19(1) is not absolute; it does not give unrestricted licence for public disruption; it is followed by Articles 19(2) to 19(6) which give the State the power to impose reasonable restrictions. State action should be proportionate in nature and should not infringe upon right to freedom of expression and protest.
The State action to invoke Section 163 BNSS was a legitimate exercise of regulatory power. But proportionality is tested at the moment force is applied, and the burden lies on the State. Proportionality provides the constitutional mechanism for testing that reasonableness. In Modern Dental College and Research Centre v. State of Madhya Pradesh the Court recognised that proportionality requires a rational relationship with its objective, necessity of the action, and must not be beyond what is required. In the present protests, the State’s response must match the actual threat posed by the protesters. In Amit Sahni v. Commissioner of Police shows that restricting the indefinite occupation of public roads does not mean that the State can restrict the protest itself. The protest itself fell within the protective scope of Articles 19(1)(a) and 19(1)(b). The State undoubtedly possessed the authority to regulate the march through Section 163 BNSS in the interests of public order. The constitutional difficulty arises from the manner of that regulation. Where peaceful alternatives remain available, barricades, tear gas, and coercive dispersal must satisfy the necessity and proportionality standards articulated in Ramlila Maidan Incident and Anuradha Bhasin. If every inconvenience becomes a reason for police intervention, Article 19 risks becoming a freedom that exists only when dissent is convenient for the State. Article 19 remains a constitutional right, and not a permission given by the State; and the freedom given is for dissent against injustice and not creating public disorder.
