CJP protest: When does peaceful protest become an unlawful assembly?

Amid Indian police's heavy crackdown of students' protest in New Delhi, a debate has risen online about the lawful understanding of laws of protesting in the country and difference between a ‘peaceful protest’ and ‘unlawful assembly.’ The Indian Constitution provides its citizens the right to protest peacefully underArticle 19(1)(b) while the ‘unlawful assembly’ is a criminal offence defined underSection 189 of Bharatiya Nyaya Sanhita (BNS), 2023 (formerly Section 141 IPC). According to law, a gathering of five or more people common unlawful object, or despite prohibitory orders is considered ‘unlawful assembly.’

When does peaceful protest become an unlawful assembly?

A ‘peaceful protest’ can also become ‘unlawful assembly’ if protesters are armed, or not in order, and non-violent. It also includes resisting law enforcement authorities or attacking them. It may be considered unlawful also when the protest is not carried out in a designated protest spaces or necessary approvals are not sought from the local law enforcement bodies. Blocking or dmaaging of public infrastructure is also considered as unlawful.

Moreover, even under the rights given in the Constitution, Article 19(3) states that the State may impose reasonable restrictions on the right to assemble peacefully in the interests of public order and the sovereignty and integrity of India. Article 19(2) permits restrictions on free speech on grounds such as public order, security of the State, and related constitutional grounds.

At the same time, authorities cannot use "public order" as a blanket justification to prohibit every protest. Any restrictions must satisfy the test of necessity and proportionality, meaning they should be the least restrictive measures required to address a genuine public order concern.

In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Supreme Court held that the right to protest is fundamental but can be regulated to balance competing rights. In Amit Sahni v. Commissioner of Police (2020) (Shaheen Bagh case), the Court ruled that while peaceful protest is protected, public roads and public spaces cannot be occupied indefinitely, as this infringes on the rights of others.

While Supreme Court rules against blanket ban on protests in name of ‘public order,’ it also gave verdicts against protests to be held directly outside Parliament House or high-security buildings. For example, in Amit Sahni v. CP Delhi (2020), the SC clarified that protests must happen only in designated spots without blocking public thoroughfares or access to sensitive zones.

Also Read: 'Don't waste...': CJI Surya Kant breaks silence on Delhi police brutality against protesting students

NEET paper leaks, CJP's and the protests?

New Delhi is witnessing massive protest demanding greater accountability from the ruling government on matters of education. This was triggered after the examination paper of National Eligibility cum Entrance Test (Undergraduate) or NEET UG was leaked in May this year and exam was cancelled. The re-test was conducted late last month. At least 21 students have died by suicide following the leak. Around the same time, Justice Surya Kant who called unemployed youths of the country as “cockroaches” while hearing a case. Though he later clarified that his comments were taken out of context, it led to formation of CJP.

Also Read: 'Shame on govt': Mamata Banerjee to join CJP protest in Delhi? TMC chief releases BIG statement, speaks against police atrocities

The movement gathered traction online and soon spilled out of the internet. CJP members formed a group and began their protest at New Delhi's Jantar Mantar demanding resignation of the Union Education Minister. Days later, activist Sonam Wangchuk also joined the protesters and started a hunger strike at Jantar Mantar.

On July 20, thousands gathered at the Jantar Mantar to take part in the Parliament march announced by CJP. However, CJP leaders didn't lead the protests and two spokesperson of the group met Union Minister JP Nadda and submitted their written demands to the minister. They said that the minister assured him that he would get back to them after speaking to higher leadership. Even as this unfolded, crowd swelled at the location, and Delhi Police used batons and tear gas to disperse them. Though, police denied “use of force”, videos showed Delhi Police and Rapid Action Force personnel chasing the protesters and using tear gas shells at several locations around Jantar Mantar including Connaught Place.

Later, at night, despite the crackdown, the protesters gathered again at Jantar Mantar with CJP's Abhijit Dipke leading them and apologizing for not being able to save the students. Since then, the protests has continued even as Centre has deployed BSF and other para military forces in the area, alongside Delhi police.