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Protests have been a long drawn part of Indian history even before the independence. Protest has been a fundamental right and a weapon for the common citizen to show the disapproval against any policy of the government. Though a fundamental right, the right to protest can be subjected to certain limitations in the interest of the public and the State at large.


Right after the enactment of the Citizenship Amendment Act. A huge protest broke out in parts of Delhi and around the nation challenging the constitutional validity of the Act that is still pending in the court as of now. Now as the protests grew people joined the masses and the crowd became quite massive. Subsequently, a writ petition was filed in the Delhi High Court posing as against the methods adopted for the protest, which resulted in the blockage of the Kalandi Kunj Shaheen Bagh stretch and the Okhla underpass since December of 2019. It was also submitted to the court as a contention by the petitioner that such protests cannot simply encroach public roads upon clearance and cause discomfort to the people. The Delhi high court disposed of this petition on the very first day stating that specific writs or orders cannot be issued beforehand as orders such as these are carried out taking into consideration the situation on the ground. This observance of the court was based on the fact that in protests such as these the ground reality “changes every 10 minutes”. Therefore, the court could not pass an order based upon an anticipation that may fall flat on ground reality. Hence the court directed the respondents to look into the grievances in accordance with the law in consideration of the larger public interests.

However, aggrieved by the Delhi High court’s decision a special leave petition was introduced in the Supreme Court on the same matter as the situation remained the same as the protest continued. This time the court witnessed intervention applications as well which were allegedly in the best favor of the protestors and identified themselves as the sympathizers of the same. The court in its order dated 17th February 2020 appointed Counsels for these Intervention Applicants for further study of the case and to find a way to control the protests while not breaching the right to protest as well. The court-appointed two interlocutors to mediate between the protestors and the government.

The report they submitted on 24th February 2020 stated that the demands were too wide and impossible to give in and find a middle path. Subsequently, riots broke out in Delhi and the proceedings were adjourned.


The key issues that the court had to deal with in the present case were that:-

  • Does the Right to peaceful protest also bestow the right to occupy a public place for an indefinite period of time?

  • Under which circumstances can clause (2) and (3) of Article 19 allow the government to put reasonable restrictions on Article 19 (1) (a) and 19(1) (b) that gives the Right to freedom of speech and expression and the right to peaceful protest without arms respectively?


In the case of Amit Sahni v. the Commissioner of Police & Ors. The appellant Amit Sahni contended that public roads cannot be encroached for an indefinite period of time. In addition to this, any method of protest adopted that caused inconvenience to the public cannot be authorized by the government.

The Intervention Applicants and their counsel contended that the Right to peaceful protest is absolute with respect to the space occupied or the number of protestors. Additionally, only in certain special circumstances as laid in Article 19 (2) and (3) can the right be circumscribed where the reason can be of public order only.

Solicitor General Tushar Mehta relied on cases like Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr , and Mazdoor Kisan Shakti Sanghatan vs Union Of India to refute the case of the intervening applicants. The cases have been discussed in the analysis further.



The legal provisions in the matter were:

Article 19 (1)(a) -Right to freedom of speech and expression.

Article 19 (1) (b)- Right to freedom of peaceful protest without arms.

Article 19 (2)- States that nothing in subclause (a) of (1) shall affect any existing law or shall prevent the State from imposing reasonable restrictions in the interests of the sovereignty of India, security of the State, and public order.

Article 19 (3)- States that nothing in sub-clause (b), shall prevent the State from making and imposing any law that puts reasonable restrictions on the exercise of the right conferred by the said sub-clause.


The court, in this case, held that such kinds of protests that occupy public ways are not acceptable. The Right to protest stands true wholly till the point of time where it does not cause inconvenience to the public and that too for an indefinite period of time. The administration ought to take action against such protests and make sure that the encroached areas are cleared of all obstructions. The job of the administration to carry out functions upon their own prudent discretion. It was observed in the Ramlila Maidan incident where the court stated that though freedom of speech and assembly can be regulated on reasonable grounds which are for the social good, there is a difference in reasonable regulation and arbitrary exclusion. However, in this case there is no sign of arbitrary exclusion and the reason for the same has been elaborated further.

The court while seeking precedence from cases like Mazdoor Kisan Shakti Sanghatan vs Union Of India stated that the right to dissent in a manner as that of the pre-independence era cannot be practiced in a self-ruled democracy. Citing the words from Pulitzer Prize winner Walter Lippmann the court said that, “In a democracy, the opposition though is seen as unconstitutional for many reasons, but it is indispensable hence must be maintained.” The apex court was of the opinion that democracy and dissent though go hand in hand, yet dissent can be practiced in designated places only.

The court also pointed out the role of the High Court and the State wherein it observed that the Delhi High Court should not have disposed of the matter, rather should have monitored the situation of the protest and take adequate measures for the same and the matter had be fluid and not had escalated.


The court as for the decision in the case stated that India has been deeply involved in protests for a very long time. The deep roots of protests extend to the freedom struggle during British rule. However, the court emphasized the distinction between the modes and manner of protests during the pre and post-independence era. The court acknowledged that Article 19 does allow for peaceful protest and the State must encourage and respect the same.

Post the submission of the first report on 17th February 2020, the interlocutors submitted a second report that examined the reasons for the problems being faced by the general public due to the protest. In this report submitted on 22nd March 2020, the interlocutors found that the crowd inside the main tent and outside was too big. Secondly, it occupied the public property wholly due to the construction of a library and models of the India Gate and a 3-D map of India that was difficult to move. Thirdly it was observed that the Shaheen Bagh protest now lacked sole leadership. The protest lost its initial motive and no longer was a woman empowering protest as the women themselves did not have the power to even call off the protest.

Solicitor General Tushar Mehta submitted before the court in response to the contention of the intervening applicants that the rights of the protestors must be balanced. To strengthen his reasoning, he mentioned the case of Mazdoor Kisan Shakti Sanghatan vs Union Of India held on 23 July 2018 which stated while discussing the fundamental rights of a citizen as defined in the constitution one must be aware that each Right does not exist in isolation. The Rights in cases like these must be balanced by contrasting Rights in order to achieve mediation. The same effort was made by the Supreme Court in the case at hand by appointing interlocutors in order to provide balancing rights to the protestors and the commuting public.

The second case that the Solicitor General had put forth was of Himat Lal K. Shah v. Commissioner of Police where the appellant challenged the rules framed by the Commissioner of Police by the powers bestowed to him under Section 33(1)(o) of the Bombay Police Act, 1951 the court opined that although the State cannot impose unreasonable restrictions on a protest or an assembly, the right to hold protest was subject to hold off the authority subjected to consideration of public order.

The Court in the issue for the ‘Place of Protest’ being used wrongfully “unequivocally” held that law does appreciate the Right to peaceful protest but public places cannot be occupied for protests with an indefinite number of people in such manner and that too for an indefinite period of time.

For that matter, one can take a look at the case of State of West Bengal v. Subodh Gopal Bose. In the aforementioned case, the court with respect to Article 19 went on to observe that, “The right that springs from Article 19(1) is not absolute and unchecked.” The liberty in a Right cannot be absolute and free from restraint wholly. In the absence of a restraint or control freedom and rights soon become synonymous with anarchy and disorder.

The court took a toll on Technology being one of the factors in the large-scale unadministered crowd gathering by saying that the magic of technology both empowers and weakens movements which were seen at Shaheen Bagh. A protest that started off on clear agendas turned into a ground for others to promote their thinking. The judgment by the court received mixed reactions with some questioning the reason and falsity presented to the court while some supporting the decision.


After witnessing all the facts, definitions, issues that led to the case, rules, and the analysis of the above case one can clearly conclude that the Right to freedom of peaceful protest without arms as defined under Article 19 (1)(a) is not at all absolute. The restrictions on the said right can be imposed if reasonable and in larger public interests which are clearly defined in Articles 19 (2) and 19 (3).

However, the reasonableness as mentioned in the case of Sharp v. Wakefield must be done in accordance with principles of justice and reason. The court in its concluding remarks clearly said that the authorities should have monitored the situation and take actions accordingly. The acts must be carried out responsibly by the authorities rather than seeking a veil and support of the court's order to carry out the required duties. Despite a long time period in between, there was no role of the authorities in mediating or negotiating with the protestors which warranted the intervention of the court.


  • Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr, 1973 AIR 87.

  • Mazdoor Kisan Shakti Sanghatan vs Union Of India, 2018 15 SCC 324.

  • Ramlila Maidan Incident In Re., (2012) 5 SCC 1

  • State of West Bengal v. Subodh Gopal Bose, AIR 1954 SC 92.

  • Sharp v. Wakefield, [1891] AC 173.

  • Article 19(1) (a), Constitution of India.

  • Article 19(1) (b), Constitution of India.

  • Article 19(2), Constitution of India.

  • Article 19(3), Constitution of India

By:- Arnav Shastri

Symbiosis Law School, Pune


Batch- 2020-2025

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