Three separate legal instruments get used at protests, and knowing which one is being applied is the difference between an argument that goes somewhere and one that does not. Ask the officer, calmly, which of the three he is acting under.
The starting point is the right, not the power
Article 19(1)(a) of the Constitution guarantees freedom of speech and expression, Article 19(1)(b) the right to assemble peaceably and without arms, and Article 19(1)(d) the freedom to move throughout India. In August 2016 the Supreme Court, dealing with police action against a demonstration, said that holding a peaceful demonstration to air grievances and be heard is the right of the people, and traced it to those freedoms. In July 2018 it examined repeated blanket prohibitory orders that had turned a whole area into a place where no peaceful protest could be held. The rights are not absolute, and Article 19(2) and Article 19(3) allow reasonable restrictions, but the starting position is a protected freedom that has to be justified away.
Instrument one: a prohibitory order
Under the Bharatiya Nagarik Suraksha Sanhita, 2023, a District Magistrate, a Sub-divisional Magistrate or a specially empowered Executive Magistrate may, by a written order stating the material facts, direct a person to abstain from a certain act where the Magistrate considers the direction likely to prevent obstruction, annoyance or injury to a person lawfully employed, danger to human life, health or safety, a disturbance of the public tranquillity, a riot or an affray. Five features are worth remembering at the spot.
- It is made by a Magistrate, not by a police officer.
- It must be in writing and must state the material facts.
- It may be directed to an individual, to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place, and may be passed ex parte in an emergency.
- No order remains in force for more than two months, extendable by the State Government by notification for a further period not exceeding six months for the specified reasons.
- Any Magistrate may rescind or alter such an order on his own motion or on the application of a person aggrieved, and where such an application is received the applicant must be given an early opportunity of appearing and showing cause, with reasons recorded in writing if the application is rejected.
Instrument two: unlawful assembly
The Bharatiya Nyaya Sanhita, 2023 designates an assembly of five or more persons unlawful if the common object is one of five listed objects: to overawe by criminal force the Government, a Legislature or a public servant in the exercise of lawful power; to resist the execution of any law or legal process; to commit mischief, criminal trespass or another offence; to take possession of property or enforce a right or supposed right by criminal force; or to compel a person by criminal force to do what he is not legally bound to do. An explanation adds that an assembly which was not unlawful when it assembled may become so. Note what is absent from that list: a peaceful gathering to express a grievance is not there.
Instrument three: preventive arrest
The Sanhita allows a police officer who knows of a design to commit a cognizable offence to arrest the person so designing, without a warrant and without an order from a Magistrate, if it appears that the commission of the offence cannot otherwise be prevented. It then fixes the ceiling: no person so arrested shall be detained beyond twenty four hours from the time of arrest unless further detention is required or authorised under some other provision of the Sanhita or of any other law. This is the provision under which protesters are commonly taken to a station and released the same evening.
A preventive arrest under the Sanhita is a short police power capped at twenty four hours. Detention under a preventive detention law is a different regime, with its own constitutional safeguards, advisory boards and periods, and our guide on preventive detention in India explains that framework. If someone is held for days, ask under which law, because it is not the provision described above.
What to do at the spot and afterwards
- Ask which order is being enforced, its date, the authority that made it, and the area it covers. A prohibitory order exists on paper.
- Ask under what provision you are being taken, and note the time. If it is a preventive arrest, note the twenty four hour ceiling from that time.
- Record. Note the officers present, keep the phone recording where you safely can, and write the account down the same day.
- Challenge the order where it is unjustified. The Sanhita itself allows an application to the Magistrate to rescind or alter the order, with a right to be heard; and where that fails, the High Court is available, as our guide on filing a writ petition in the High Court explains.
- Deal with any case registered afterwards on its own terms. Speech based cases arising out of banners, slogans and placards raise their own questions, and our note on a first information report over a banner and the free speech defence works through them.
Force, and the limits on it
Where a gathering does become unlawful, the Sanhita contains provisions for its dispersal, and the use of force there is regulated rather than unlimited. Excessive force against persons who are not resisting is separately actionable, and that allegation belongs before the human rights commission and the writ court rather than in the criminal trial. Photograph injuries, get a medical record made the same day, and preserve any video.