INTRODUCTION:
July 20 2026, was a Black Day in the history of India. We all witnessed the visuals of what happened at Jantar Mantar, Delhi. We all witnessed the brutality of the Delhi police department, India’s RAF, and several other state defense agencies; we also witnessed how brutally and ruthlessly a state can react when the people question the government. The background of the story is that there was a peaceful protest going on at Jantar Mantar, Delhi, by the students/youth of the country against consistent paper leaks in the country and zero accountability of the government. The demands of the students’/youth protestors were the resignation of the sitting Union Education Minister and reforms in the education system of the country, which were completely legitimate. On 20th July 2026, after consistent ignorance from the government, the students’/youth protestors decided to carry out a peaceful march towards the parliament of the country. The state, in order to stop the students’/youth protestors, used brutal force, ordering the police force and RAF to use lathi charge and tear gas on the students’/youth protestors who were peacefully marching. The brutality of the police and RAF caused several casualties and serious injuries to the students/youth protestors.[1]
The question now comes: do police, which come under the state mechanism, have the right to use unlimited and arbitrary force on the protestors who are peaceful? Do citizens in a democracy not have the right to peacefully assemble without arms and protest against the government?
PEACEFUL PROTEST IS A CONSTITUTIONAL RIGHT…
We have seen several times that governments often use force against the protestors to maintain law and order in the state. But arbitrary actions of the government do not align with the constitutional framework of the country. The Constitution of India guarantees certain fundamental rights to the people:
Article 19(1)(a)[2] guarantees freedom of speech and expression. Political demonstrations, slogans, placards, marches, and symbolic acts of protest constitute recognised forms of expression, and they are protected under this provision.[3]
Article 19(1)(b),[4] which secures the right “to assemble peaceably and without arms.” The Constitution therefore treats peaceful assembly not as an executive concession but as a democratic entitlement essential to participatory governance.[5]
However, these rights are not absolute. Articles 19(2) and 19(3) permit the State to impose reasonable restrictions in the interests of sovereignty and integrity, security of the State, and public order. [6]Consequently, the Constitution recognises that governments may regulate demonstrations where legitimate public interests so require. Regulation, however, is constitutionally distinct from suppression. The constitutional analysis becomes even more rigorous when police actions result in injuries or fatalities. Article 21 guarantees every person’s right to life and personal liberty. Excessive police force implicates not only freedom of assembly but also the constitutional protection of bodily integrity and human dignity.[7]
THE CONSTITUTIONAL AND STATUTORY LIMITS ON POLICE FORCE:
The State’s authority to regulate protests is neither unlimited nor immune from judicial review. The Supreme Court of India has consistently held that force used against peaceful protestors must satisfy the principles of necessity, proportionality, and minimum intervention. Police action is intended to restore public order; it cannot become a mechanism for punishing dissent. Indian constitutional jurisprudence has gradually developed a clear standard governing police use of force during protests.[8] The first principle is necessity. Police may resort to the use of force only where less restrictive alternatives such as negotiation, warnings, or voluntary dispersal are ineffective or impracticable. The second principle is proportionality. Even where force becomes necessary, the degree of force employed must correspond to the actual threat presented; peaceful demonstrators cannot lawfully be treated in the same manner as violent mobs merely because they occupy public spaces.[9] Closely connected is the doctrine of minimum force. Police action must cease once its lawful objective has been achieved. Force cannot be punitive, retaliatory, or intended to intentionally harm or physically abuse an individual.[10]
These principles are now deeply embedded within Indian constitutional law and have repeatedly been reaffirmed by the Supreme Court while examining police crackdowns on public demonstrations.
Sections 148 and 151 of BNSS establish the legal mechanism for dispersing unlawful assemblies. Section 148 of BNSS empowers an Executive Magistrate, an officer-in-charge of a police station, or any police officer not below the rank of a sub-inspector to command an unlawful assembly (5 or more persons posing a disturbance to public peace) to disperse.[11] The BNSS also contains an important procedural safeguard for police officers. Section 151 requires prior governmental sanction before criminal prosecution can be initiated against officers for acts purportedly performed under these provisions.[12] Although intended to protect officials acting in good faith, the requirement has frequently been criticised for creating practical barriers to accountability where excessive force is alleged.[13]
Apart from domestic legislation, the National Human Rights Commission’s Manual on Human Rights for Police Officers encourages restraint, accountability, and respect for human dignity during crowd-control operations.[14] Likewise, the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990) provide persuasive international guidance by requiring law enforcement agencies to employ non-violent means wherever possible before resorting to force.[15] The legal architecture therefore clearly contemplates graduated and restrained policing. The difficulty lies less in the law itself than in its implementation.
LEGAL RIGHTS AND REMEDIES AVAILABLE TO PROTESTERS:
Victims of excessive police force possess several legal remedies. Constitutional remedies remain the most significant. Aggrieved persons may approach the Supreme Court under Article 32[16] or the High Courts under Article 226[17] seeking enforcement of their fundamental rights. Courts have repeatedly recognised the doctrine of constitutional tort,[18] awarding monetary compensation where State action violates Articles 19 or 21.
Victims may also pursue criminal complaints against individual police officers or seek departmental disciplinary proceedings where excessive force has been employed. They can also register their complaint before the National Human Rights Commission or State Human Rights Commissions.
When protesters are arrested or detained, they are entitled to know the grounds of arrest, have an arrest memo prepared, undergo medical examination, and communicate with relatives or a lawyer.[19]
CONCLUSION:
The Constitution does not prohibit the State from regulating protests, nor does it deny the police authority to preserve public order. What it does prohibit is the arbitrary exercise of coercive power. The Supreme Court has consistently reaffirmed that peaceful protest occupies protected constitutional space. Police force must satisfy the demanding standards of necessity, proportionality, and minimum intervention. Lathi charges, tear gas, and similar coercive measures are lawful only where they constitute the least restrictive means of addressing a genuine threat, not where they function as instruments for silencing democratic dissent.
The persistent challenge, however, lies in enforcement rather than doctrine. Courts have articulated robust constitutional safeguards and awarded compensation in appropriate cases, yet criminal accountability for unlawful police violence remains comparatively rare. Mandatory body-worn cameras during crowd-control operations, transparent standard operating procedures, independent investigations into allegations of excessive force, and expeditious departmental inquiries would strengthen both public confidence and constitutional governance.
The Supreme Court in the case of Rudul Shah v. State of Bihar had developed the doctrine of compensatory jurisprudence, which makes the State liable for its arbitrary actions against the people. Along with the compensatory awards, courts also impose some punishments upon negligent officers. In the case of Joginder Kaur v. The Punjab State and Ors.[20] It was observed that: “In the matter of liability of the State for the tort committed by its employees, it is now the settled law that the State is liable for tortious acts committed by its employees in the course of their employment”.
Ultimately, the legitimacy of a constitutional democracy is measured not by how effectively it suppresses dissent, but by how faithfully it protects it within the framework of the rule of law.
Author(s) Name: Shubham Ahire (University of Mumbai)
References:
[1] ‘India: New investigation documents unlawful and deadly force against CJP-led protests amid ongoing police impunity’, 24 August 2026 (Amnesty International) < https://www.amnesty.org/en/latest/news/2026/08/india-new-investigation-documents-unlawful-and-deadly-force-against-cjp-led-protests-amid-ongoing-police-impunity/> accessed 03 Sept 2026
Geeta Pandey et al., ‘Police block thousands of ‘cockroach’ protesters marching on India’s parliament’ (BBC) < https://www.bbc.com/news/articles/cvg9w9dxd7lo> accessed 03 Sep. 26
[2] Constitution of India 1950, art 19(1)(a)
[3] Himat Lal K. Shah vs Commissioner Of Police, Ahmedabad & Anr 15 September, 1972 1973 AIR 87
[4] Constitution of India 1950, art 19(1)(b)
[5] Ahan Basu, ‘R.G Kar Protests and the Reignited Question of Protests on Matters Sub Judice’ (Vidhi Centre for Legal Policy) < https://vidhilegalpolicy.in/blog/r-g-kar-protests-and-the-reignited-question-of-protests-on-matters-sub-judice/> accessed 03 Sep. 26
[6] Constitution of India 1950, art 19(2)(3)
[7] Constitution of India 1950, art 21
[8] Justice K.S.Puttaswamy(Retd) vs Union Of India [26 September, 2018] 2019 (1) SCC 1
[9] Anuradha Bhasin vs Union Of India [10 January, 2020] AIR 2020 SC 1308
[10] Anita Thakur vs Govt.of J & K . [12 August, 2016] MANU/SC/0915/2016
[11] Bharatiya Nagarik Suraksha Sanhita 2023, s 148
[12] Bharatiya Nagarik Suraksha Sanhita 2023, s 151
[13] Latest Law, ‘Understanding BNSS Section 151: Immunity for Officials Maintaining Public Order’ (Medium) <https://medium.com/@latest_laws/understanding-bnss-section-151-immunity-for-officials-maintaining-public-order-a3f09642f744> accessed 03 Sep.2026
[14] National Human Rights Commission, Manual on Human Rights for Police Officers (National Human Rights Commission, India) < https://nhrc.nic.in/publications/nonpriced-publications?category_id=4> accessed 28 July 2026
[15] Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990, ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’ (United Nations) < https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-use-force-and-firearms-law-enforcement> accessed 28 July 2026.
[16] Constitution of India 1950, art 32
[17] Constitution of India 1950, art 226
[18] Lucknow Development Authority vs M.K. Gupta [5 November, 1993] 1994 AIR 787
Rudul Sah vs State of Bihar and Another [1 August, 1983] 1983 AIR 1086
[19] Dr Vinod Surana, ‘Constitutional Tort’ (Live Law) < https://www.livelaw.in/law-firms/law-firm-articles-/constitutional-torts-dr-vinod-surana-180192#_ftn25> accessed 03 Sep. 2026
[20] Joginder Kaur vs State of Punjab and Ors. 1996 ACJ 193, (1995) 109 PLR 117
