Assembly, association, movement and occupation; protests and shutdowns

Detail

The shared structure of Article 19

• Article 19(1) gives freedoms to citizens only. Foreigners do not get them.
• Each freedom has a matching clause that lets the State limit it by law, but only through reasonable restrictions. A court can strike down a limit that is arbitrary or goes too far.
• The words "reasonable restrictions" were added by an amendment during the Constituent Assembly debates. The aim was to let courts review such laws and strike down arbitrary limits [4].
• The Assembly debated Article 19 on 1-2 December 1948 and 16-17 October 1949 [4].

Freedom	Clause	Restriction clause	Grounds for limits
Assemble peaceably and without arms	19(1)(b)	19(3)	Sovereignty and integrity of India; public order
Form associations, unions or co-operative societies	19(1)(c)	19(4)	Sovereignty and integrity; public order; morality
Move freely throughout India	19(1)(d)	19(5)	Interests of the general public; protection of Scheduled Tribes
Reside and settle anywhere in India	19(1)(e)	19(5)	Same as above
Practise any profession, or carry on any occupation, trade or business	19(1)(g)	19(6)	Interests of the general public; professional or technical qualifications; State monopoly

Source for the table: [4]

Freedom of assembly — Art. 19(1)(b)

• Freedom of assembly is the right of citizens to meet together in a group, for example at a meeting, rally or procession. The meeting must be peaceable and without arms.
• It can be limited under Art. 19(3) for public order and for sovereignty and integrity of India [4].
• Two conditions are written into the right itself:
• A violent or armed gathering is not protected at all.
• A peaceful, unarmed gathering is protected, but the State can still regulate it by law.

Prohibitory orders — CrPC s.144 → BNSS s.163

• Prohibitory order: an order by a magistrate that bans gatherings or certain activities in an area to prevent danger. Under the old CrPC s.144 it was commonly used to ban the assembly of "five or more persons".
• The CrPC has been replaced. The same power now sits in Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, titled "Power to issue order in urgent cases of nuisance or apprehended danger" [5].
• How the power works under BNSS s.163:
• Who can issue it: a District Magistrate, a Sub-divisional Magistrate, or another Executive Magistrate specially empowered by the State Government [5].
• When it can be issued: the magistrate must think there is enough ground to act and that quick prevention or a speedy remedy is needed [5].

• Form: the order must be in writing and must state its grounds [5].

• NCERT's warning: a blanket ban on "five or more persons" can smother genuine, peaceful protest.

• Anuradha Bhasin (2020) added a court check. Section 144 orders must be reasoned and proportionate. They cannot be used again and again to crush legitimate expression of opinion.

Right to protest — from Arts. 19(1)(a) and (b)

• Right to protest: the right to show disagreement in public through speech, meetings, marches or sit-ins. It is not named in the Constitution. Courts read it from Art. 19(1)(a) (speech and expression) together with Art. 19(1)(b) (assembly).
• Key cases, in order:

Case	Year	Principle
Himat Lal K. Shah v. Commissioner of Police	1973	Citizens may hold meetings on public streets. The State can regulate this but cannot ban it outright. A rule giving the police unguided power to refuse permission was struck down.
In re Ramlila Maidan Incident	2012	The police broke up a sleeping, peaceful crowd at midnight (Baba Ramdev's protest, 2011). The Court held this violated Arts. 19 and 21. Restrictions must be reasonable, and the State must balance order with the right to protest.
Mazdoor Kisan Shakti Sangathan v. Union of India	2018	A complete ban on protests at Jantar Mantar and Boat Club in Delhi was struck down. The authorities must make rules for regulated protest there, balancing protest with the rights of local residents.
Amit Sahni v. Commissioner of Police (Shaheen Bagh)	2020	Protest is a right. But public ways and public spaces cannot be occupied indefinitely. Protests must take place at designated sites. The police must clear blockades and should not wait for court orders.

• The balance in one chain:
• Citizens have the right to protest peacefully.
• Other citizens have rights too: to move, to work, to use roads.
• So the State may regulate the time, place and manner of a protest, but it may not ban dissent itself.

NCERT "Check your progress" scenarios (keps202)

NCERT asks whether each of the following is a valid use of freedom, or a valid limit on it:

• A peace march after riots. The right to assemble is real, but the authorities may impose public-order conditions while tension is high. A blanket ban must still meet the reasonableness test.
• A march for temple entry. This is a peaceful assembly to claim equality (Art. 17, end of untouchability; Art. 25(2)(b), opening Hindu temples to all classes). It is protected so long as it stays peaceful.
• An Adivasi road blockade. Assembly is protected. Blocking public ways for a long time is not (Amit Sahni, 2020).
• A caste panchayat's punishment. A caste panchayat is not "the State" under Art. 12. Its "punishments", such as boycotts or fines, have no legal force and violate the victims' rights. The State must protect the victims.

Freedom of association — Art. 19(1)(c)

• Freedom of association: the right of citizens to form associations, unions or co-operative societies, for example political parties, trade unions, clubs and co-operatives [4].
• It can be limited under Art. 19(4) for sovereignty and integrity of India, public order or morality [4].
• Ban on unlawful associations: under the Unlawful Activities (Prevention) Act (UAPA), 1967, the Centre can declare an organisation "unlawful". The ban must be confirmed by a tribunal. This is a built-in check on the executive.
• What the right covers: forming and joining an association.
• What it does not cover: a guarantee that the association will reach every goal it sets itself, such as bargaining or striking.

Right to strike — not a fundamental right

• Right to strike: the claim of workers to stop work together to press their demands. It is not a fundamental right in India.
• All India Bank Employees' Association v. National Industrial Tribunal (1962): the right to form unions does not include a fundamental right to collective bargaining or to strike.
• T.K. Rangarajan v. Government of Tamil Nadu (2003): government employees have no fundamental, legal, or moral or equitable right to strike. The case arose after the mass dismissal of Tamil Nadu employees who went on strike.
• A strike is regulated by ordinary law (industrial and labour law). It is not protected by Part III.
• Trap: a demonstration (a peaceful show of opinion) can be protected speech. A strike is not.

Freedom of movement and residence — Arts. 19(1)(d) and (e)

• Freedom of movement (19(1)(d)): the right to move freely throughout the territory of India [4].
• Freedom of residence (19(1)(e)): the right to reside and settle in any part of India [4].
• Together they treat India as one territory for all citizens.
• Both can be limited under Art. 19(5) in the interests of the general public or to protect the interests of any Scheduled Tribe [4].
• Examples of valid limits:
• Inner Line Permit (ILP): a travel document that outsiders, including Indian citizens, need to enter certain north-eastern states. It protects tribal culture and land.
• Fifth and Sixth Schedule protections: laws that stop the sale of tribal land to non-tribals in Scheduled Areas and tribal areas.

• Externment orders, which keep a habitual offender out of a district, and quarantine during an epidemic (general public interest).

• Dongria Kondh (Class 7, gees206): the Dongria Kondh of Niyamgiri hills in Odisha used their rights and gram sabha decisions to protect their land and sacred hills from mining. This shows how tribal-protection rules limit outsiders' rights to settle or do business.

• See also: special-provisions-scheduled-areas.
• Going abroad is not covered by Art. 19(1)(d), which stops at India's borders.
• Satwant Singh Sawhney v. Assistant Passport Officer (1967): the right to travel abroad is part of "personal liberty" under Art. 21.

• It can be removed only by a procedure set by law. Maneka Gandhi (1978) later required that procedure to be fair, just and reasonable.

• The "outsiders" debate (domicile rules, "sons of the soil") belongs to citizenship (keps106).

Freedom of profession, trade and business — Art. 19(1)(g)

• Freedom of profession: the right to practise any profession, or carry on any occupation, trade or business [4].

• Art. 19(6) allows three kinds of limits: 1. Reasonable restrictions in the interests of the general public. 2. Professional or technical qualifications. For example, only a qualified person may practise as a doctor or lawyer [4]. 3. State monopoly (19(6)(ii)): the State, or a corporation it owns or controls, may carry on any trade, business, industry or service, and may exclude citizens from it fully or partly [4]. This was added by the 1st Amendment, 1951.

• Activities that are not a "trade" under Art. 19(1)(g):

• Khoday Distilleries v. State of Karnataka (1995): there is no fundamental right to trade in liquor. The State may ban it or keep it as a monopoly.

• State of Bombay v. R.M.D. Chamarbaugwala (1957): gambling is not "trade" and gets no protection under 19(1)(g).

• Street vending:

• Sodan Singh v. NDMC (1989): hawking on pavements is a trade under 19(1)(g). But no hawker has a right to a place of their own choosing. Use of the pavement can be regulated.

• The Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014 now gives this a legal framework: Town Vending Committees, vending zones and vending certificates.

• Link to livelihood: Olga Tellis (1985) read the right to livelihood into Art. 21 (pavement dwellers in Bombay, keps106).

Shutdowns: Anuradha Bhasin v. Union of India (10 January 2020)

• Background: after Art. 370 was changed in August 2019, the government suspended the internet and imposed Section 144 orders across Jammu and Kashmir.
• What the Supreme Court held:
• Speech and trade or business carried out over the internet are protected by Arts. 19(1)(a) and 19(1)(g).
• Internet suspension orders must be:
  • published, so they can be challenged in court;
  • temporary, since an indefinite suspension is not allowed;
  • proportionate, meaning the least restrictive option;
  • open to periodic review by a review committee.

• Section 144 orders must be reasoned and proportionate. They cannot be used to stop the legitimate expression of opinion or grievance.

• The law after the judgment:

• The Telecommunications Act, 2023 was passed by Parliament in December 2023. It allows telecom services to be temporarily suspended. Two conditions must both be met [2]:
  • there is a public emergency, or suspension is in the interest of public safety; and
  • suspension is necessary or expedient for grounds such as security of the State and public order.

• In August 2024, the Department of Telecommunications released draft rules under the 2023 Act. They would replace the older rules on interception and temporary suspension [2]. The final suspension rules are the 2024 rules.

• Safeguards in the 2024 rules [2]:

Safeguard	Rule
Who orders a suspension	The Home Secretary of the Union or of a State. In unavoidable cases, a Joint Secretary (Union) or an authorised officer may order it, but the Home Secretary must confirm it within 24 hours.
Publication	Orders must be published.
Review committee (Union)	Cabinet Secretary, Legal Affairs Secretary, Telecom Secretary
Review committee (State)	Chief Secretary, Law Secretary, and a Secretary other than the Home Secretary
How often the committee meets	Every two months. It records whether each order complies with the Act and can set aside orders.

• Concern: states have ordered district-wide or state-wide internet shutdowns to stop cheating in public examinations. Such orders may go beyond the grounds the Act allows [2].

Right to access the internet

• Right to access the internet: the claim that every person should be able to get online, because education, speech and work now depend on it.
• Faheema Shirin v. State of Kerala (2019): the Kerala High Court held that access to the internet is part of the right to education and the right to privacy under Art. 21. A hostel rule banning mobile phones was struck down.
• The Supreme Court position: Anuradha Bhasin protected expression and trade through the internet. But the Court has not declared internet access a standalone fundamental right.

Doctrine of proportionality

• Doctrine of proportionality: a four-step court test that checks whether a limit on a right is fair. It comes from Modern Dental College v. State of M.P. (2016) and K.S. Puttaswamy (2017).

• The four steps: 1. Legitimate aim: the law must pursue a proper purpose. 2. Suitability: the measure must be rationally connected to that aim. 3. Necessity: it must be the least restrictive option that works equally well. 4. Balancing: the harm to the right must not be greater than the benefit gained.

• Where courts have used it:

• Aadhaar (Puttaswamy II, 2018): the Aadhaar scheme was tested on privacy.
• Anuradha Bhasin (2020): internet suspensions and s.144 orders.
• Gujarat Mazdoor Sabha v. State of Gujarat (2020): a COVID-era notification that exempted factories from overtime-pay rules was struck down. A "public emergency" did not justify cutting workers' rights under Arts. 14 and 21.

Older "reasonableness" review	Proportionality
Asks broadly whether the limit is "reasonable" and not excessive (e.g. State of Madras v. V.G. Row, 1952)	Asks four set questions in a fixed order
Gives the government a lot of room	Makes the State show that no milder option exists
Mostly checks the law as written	Checks how the measure is applied in practice, including how long it lasts and how widely it applies

Prelims Hooks

• 19(1)(b) assembly → limits in 19(3): sovereignty and integrity, and public order only. Morality is not a ground for assembly. Morality is a ground for association (19(4)).
• 19(1)(d)/(e) movement and residence → 19(5): general public interest or protection of Scheduled Tribes. This is the basis of Inner Line Permits.
• CrPC s.144 → BNSS s.163, 2023: a DM, SDM or specially empowered Executive Magistrate may issue a written order stating its grounds in "urgent cases of nuisance or apprehended danger" [5].
• Case–principle pairs: Himat Lal Shah (1973), meetings on streets · Ramlila Maidan (2012), midnight police action · MKSS (2018), Jantar Mantar and Boat Club · Amit Sahni (2020), Shaheen Bagh, no indefinite occupation of public ways.
• Right to strike: not a fundamental right. All India Bank Employees' Association (1962) for unions; T.K. Rangarajan (2003) for government employees.
• Travel abroad = Art. 21 (Satwant Singh Sawhney, 1967), not Art. 19(1)(d).
• No trade in liquor (Khoday Distilleries, 1995). Gambling is not trade (R.M.D. Chamarbaugwala, 1957). Hawking is a trade, but not at a spot of one's choosing (Sodan Singh, 1989).
• State monopoly 19(6)(ii) was added by the 1st Amendment, 1951.
• Internet shutdowns: Anuradha Bhasin (10 January 2020). The power now comes from the Telecommunications Act, 2023. Under the 2024 rules, the review committee meets every two months [2].
• Trap: internet access is recognised as a right by the Kerala HC (Faheema Shirin, 2019), not by the Supreme Court.

Mains Points

• Protest versus public order. Courts have moved from "regulate, don't ban" (Himat Lal Shah, MKSS) to "protest, but not indefinitely on public ways" (Amit Sahni). Arguments for a balanced approach:
• designated protest sites that are actually usable;
• time, place and manner rules;

• no blanket "five or more persons" orders under BNSS s.163.

• Internet shutdowns as a governance tool. The Telecommunications Act, 2023 and its 2024 rules put the Anuradha Bhasin safeguards into rules: publication, Home Secretary orders, and review every two months [2].

• Gaps remain. Review is internal to the executive, with no judicial member. State-wide shutdowns are ordered for exams [2].

• Possible reforms: a fixed maximum duration, judicial review, and targeted (not area-wide) blocking.

• Proportionality as the main test. It makes the State justify why a milder measure would not work. This is stronger than the older, deferential "reasonableness" review.

• Critics say courts apply it unevenly. Some cases are left pending until the issue is over, as in the J&K review.

• Strikes and unions. Denying a fundamental right to strike (T.K. Rangarajan, 2003) protects essential services. But it weakens workers' bargaining power. One option is to strengthen statutory dispute resolution (labour codes, conciliation) instead of relying on dismissal.