The Right to Assemble Peacefully Without Arms in India: A Constitutional Analysis

The Right to Assemble Peacefully Without Arms in India: A Constitutional Analysis of Democratic Expression and Public Order

Introduction

The right of citizens "to assemble peaceably and without arms," enshrined in Article 19(1)(b) of the Constitution of India, stands as a cornerstone of the nation's democratic architecture. This right, operating in synergy with the freedom of speech and expression under Article 19(1)(a), provides the constitutional bedrock for public discourse, dissent, and protest. The Supreme Court of India has described these rights, in cohesion, as "treasured rights" that "enable every citizen to assemble peacefully and protest against the actions or inactions of the State" (Amit Sahni v. Commissioner Of Police And Others, 2020). The strength of Indian democracy, as the Court notes, lies in the encouragement and respect afforded to these rights (ALL INDIA SECULAR FRONT v. State of West Bengal, 2025).

However, this fundamental right is not absolute. It is subject to "reasonable restrictions" imposed by the State in the interests of the sovereignty and integrity of India, or public order, as stipulated in Article 19(3). The jurisprudential landscape of this right is thus characterized by a continuous and delicate balancing act between safeguarding individual liberty and upholding the State's duty to maintain societal peace and order. This article undertakes a comprehensive analysis of the evolution of this right in Indian law, examining how the judiciary has interpreted its scope and limitations through landmark precedents and statutory scrutiny. It traces the journey from foundational principles to the contemporary challenges of public protests in an increasingly complex society, focusing on the critical interplay between democratic expression and the imperatives of public order.

The Constitutional Foundation and Scope of the Right

Article 19(1)(b): The Core Guarantee

The Constitution of India guarantees the right to assemble peaceably, a right that cannot be abridged or taken away by law, except through the imposition of reasonable restrictions under Article 19(3) (Himat Lal K. Shah v. Commissioner Of Police, Ahmedabad And Another, 1972). This right is fundamental to the very concept of a participatory democracy, allowing citizens to congregate for common purposes, be it for social, political, or religious expression. The Supreme Court has affirmed that this right extends even to government servants, who cannot be subjected to a blanket ban on all forms of demonstration, as a demonstration is a visible manifestation of feelings or sentiments and thus a form of speech and assembly. However, the Court has clarified that this does not include a fundamental right to strike (Kameshwar Prasad And Others v. State Of Bihar And Another, 1962).

The judiciary has consistently held that the right to peaceful assembly and demonstration is a "basic feature of a democratic system" (Mazdoor Kisan Shakti Sangathan v. Union Of India And Another, 2018). In Anita Thakur & Ors. v. Govt. Of J&K & Ors. (2016), the Supreme Court eloquently stated that "an unarmed, peaceful protest procession in the land of ‘salt satyagraha’, fast-unto-death and ‘do or die’ is no jural anathema," recognizing organized, non-violent protest as a cherished aspect of India's political life. This right is not merely a passive freedom but an active enabler of democratic engagement, allowing citizens to "air their grievances and to see that their voice is heard in the relevant quarters" (Md. Amin & Ors. v. Bharatiya Janata Party & Ors., 2018).

The Confluence with Freedom of Speech

The right to assemble is intrinsically linked with the right to freedom of speech and expression under Article 19(1)(a). An assembly is often the medium through which expression is collectively articulated. The Supreme Court in Amit Sahni (Shaheen Bagh, In Re) v. State (2020) observed that these two rights "in cohesion, enable every citizen to assemble peacefully and protest." This synergy is particularly evident in the context of public meetings and protests, where the act of gathering is inseparable from the act of communicating a message. The right to hold public meetings has been held to flow from both Article 19(1)(b) and the right to move freely under Article 19(1)(d) (Himat Lal K. Shah v. Commissioner Of Police, 1972, citing Babulal Parate). Consequently, any restriction on peaceful assembly invariably impacts the freedom of expression, necessitating rigorous judicial scrutiny. The right to raise slogans, albeit in a peaceful and orderly manner, is protected under this confluence of rights (Anita Thakur & Ors., 2016).

The Doctrine of Reasonable Restrictions: Balancing Liberty and Order

The Concept of "Public Order"

Article 19(3) permits the State to impose reasonable restrictions on the right to assemble in the interest of "public order." The judiciary has clarified that "public order" is a more serious concern than "law and order." While a "law and order" issue may affect specific individuals, a "public order" issue affects the community at large, disrupting the even tempo of life. As the Bombay High Court noted in BHARAT MUKTI MORCHA v. STATE OF MAHA. (2022), while "law and order" is not a ground for restriction under Article 19(3), a situation can burgeon from a law and order problem into one of public order. The Supreme Court in Madhu Limaye v. Sub-Divisional Magistrate, Monghyr (1970), drawing from earlier precedents, established that "public order" is to be understood in a sense that distinguishes it from minor breaches of peace or local disturbances, and relates to disruptions that have a wider impact on the community.

Statutory Instruments of Control and Judicial Scrutiny

The State employs various statutory instruments to regulate assemblies, primarily Section 144 of the Code of Criminal Procedure, 1973 (CrPC) and various Police Acts. The judiciary's role has been to ensure these instruments are wielded constitutionally.

  • Section 144 of the CrPC: This provision empowers an Executive Magistrate to issue orders in urgent cases of apprehended danger to prohibit an assembly. Its constitutional validity was upheld in early cases like Babulal Parate v. State Of Maharashtra (1961) and Madhu Limaye (1970), where the Court deemed it a necessary, temporary, and reasonable measure for preserving public order in emergencies. However, subsequent jurisprudence has imposed stringent checks on its application. In Mazdoor Kisan Shakti Sangathan (2018), the Court criticized the continuous and repetitive imposition of Section 144 orders as a means to create a permanent ban, advocating for regulation rather than prohibition. The landmark judgment in Anuradha Bhasin v. Union Of India (2020) firmly embedded the doctrine of proportionality, mandating that any restriction under Section 144 must be necessary, rationally connected to its objective, and the least intrusive measure available. The Court's condemnation of the "brutal" and "immodest" use of force to disperse a sleeping assembly in the Ramlila Maidan Incident, In Re (2012) serves as a stark reminder that the implementation of such orders must not violate basic human rights.
  • Police Acts and Administrative Discretion: The judiciary has been vigilant against the grant of unbridled discretionary power to administrative authorities. In the seminal case of Himat Lal K. Shah (1972), the Supreme Court struck down a police rule that required prior permission for public meetings on streets, finding that it vested unchecked and arbitrary power in the Police Commissioner without any guiding principles. This established a vital precedent against administrative overreach. Similarly, courts have insisted that authorities must act under the correct and updated legal provisions, as highlighted in Durai Sankar & Others v. The Secretary To The Government (2014), which dealt with an amended provision of the Chennai City Police Act. Furthermore, the Madras High Court in Arappor Iyakkam v. State Of Tamil Nadu (2017) held that a mere apprehension of a law and order problem is not a valid ground for refusing permission for a meeting; rather, it is the duty of the police to provide adequate protection and impose reasonable conditions.
  • Exceptional Powers: In situations where public security is "manifestly endangered," special laws may grant power to armed forces to disperse assemblies. However, even these exceptional powers are circumscribed by the principle of minimum force. The law mandates that an officer shall "use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly" (Naga People'S Movement Of Human Rights v. Union Of India, 1997).

The Right to Protest: Dissent in a Democratic Polity

The Sanctity of Protest v. Public Inconvenience

While the right to protest is a celebrated facet of Indian democracy, its modern expression has led to significant judicial deliberation on its limits, especially concerning public space. The case of Amit Sahni v. Commissioner Of Police (2020), concerning the indefinite blockade of a public road at Shaheen Bagh, is the locus classicus on this issue. The Supreme Court, while acknowledging India's "foundation back to when the seeds of protest during our freedom struggle were sown deep," drew a crucial distinction: "the erstwhile mode and manner of dissent against colonial rule cannot be equated with dissent in a self-ruled democracy." The Court unequivocally held that while the right to protest is fundamental, "public ways and public spaces cannot be occupied in such a manner and that too indefinitely." It concluded that demonstrations expressing dissent must be confined to designated places to avoid causing grave inconvenience to other citizens.

This position, however, is balanced against concerns that restricting protests to designated areas could dilute their impact. In Mazdoor Kisan Shakti Sangathan (2018), the petitioners argued that shifting the protest site from Jantar Mantar to the more remote Ramlila Maidan would "further distance protesters from a site where they had greater visibility" and that the high cost of using such venues could make protests "practically impossible for the common citizen." This highlights the ongoing tension between ensuring the efficacy of protest as a tool of democratic expression and maintaining public order and convenience.

The Balancing of Competing Rights

A core principle that has emerged is that fundamental rights do not exist in isolation. The Supreme Court in Amit Sahni (Shaheen Bagh, In Re) v. State (2020), referencing its decision in Mazdoor Kisan Shakti Sangathan, emphasized that "each fundamental right, be it of an individual or of a class, does not exist in isolation and has to be balanced with every other contrasting right." The Court thus sought a solution where the rights of protestors were balanced with the rights of commuters. This principle of balancing extends to other fundamental rights as well. The forceful dispersal of the assembly in the Ramlila Maidan Incident (2012) was seen not just as a violation of the right to assemble, but also an outrage against the right to a sound sleep, which the Court acknowledged as a constitutional freedom under Article 21.

Conclusion

The constitutional right to assemble peaceably and without arms is a vital artery of Indian democracy. The journey of its interpretation reveals a judiciary that has consistently protected its essence while adapting its application to contemporary realities. From upholding the validity of regulatory statutes like Section 144 CrPC in Babulal Parate (1961) to mandating strict proportionality in their application in Anuradha Bhasin (2020), the courts have progressively refined the balance between liberty and order. The right remains a guaranteed freedom, and its curtailment is not permissible except according to the procedure established by a valid law (Serajul Sheikh v. The State Of Jharkhand, 2008).

The judgment in Amit Sahni (2020) represents the current apex of this jurisprudence, articulating a clear but contested boundary: dissent is essential, but it cannot lead to the indefinite occupation of public spaces at the expense of the rights of other citizens. As protests and assemblies continue to be a primary mode of civic engagement, from student agitations (G. Pavendhan v. Senthil Kumar, 2017) to larger social movements, the legal framework governing them will continue to evolve. The enduring legacy of the judiciary's engagement with Article 19(1)(b) is its commitment to ensuring that the right to assemble remains a vibrant, effective, and responsible feature of India's democratic life, preventing its suppression by the State while ensuring it does not devolve into public anarchy.