Decoding police powers, rights of protesters and law on use of force

Allegations of police brutality during recent protests in Delhi have reignited discussions about the legal limits of police force in dispersing demonstrations in India. While Parliament has not enacted a specific law governing police use of force during protests, constitutional courts have progressively established guidelines through judicial precedents.

Indian law grants police authority to maintain public order, but this power is constrained by constitutional principles of legality, necessity, and proportionality. The legal framework remains fragmented, with the Bharatiya Nagarik Suraksha Sanhita (BNSS) conferring powers to disperse unlawful assemblies. However, the practical implementation of crowd control measures, including lathi-charges and the use of tear gas, along with procedures for recording operations and deployment, are largely dictated by state police laws, manuals, and executive orders. This leads to inconsistent practices across different regions, with many critical questions regarding force and accountability being resolved on a case-by-case basis.

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While Indian law empowers the police to maintain public order, courts have repeatedly emphasised that those powers are bounded by the Constitution and the principles of legality, necessity and proportionality.

The Constitution guarantees the rights to freedom of speech and expression (Article 19(1)(a)) and peaceful assembly (Article 19(1)(b)). However, these rights are not absolute. Under Articles 19(2) and 19(3), the state can impose reasonable restrictions in the interest of India's sovereignty, integrity, security, and public order. The Supreme Court has affirmed the right to protest as a fundamental freedom that must coexist with the rights of others. It has also ruled that while dissent is vital to democracy, public spaces cannot be occupied indefinitely, balancing the right to demonstrate with the need to maintain public order.

Section 163 of the BNSS, which replaces Section 144 of the Code of Criminal Procedure, is a frequently invoked preventive measure. It empowers executive magistrates to issue prohibitory orders in urgent situations where there is sufficient grounds to prevent obstruction, danger to human life, disturbance of public tranquility, or a riot. Such orders often restrict assemblies of five or more people, underscoring the legal mechanisms available to authorities to manage public gatherings.

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The law, therefore, does not permit either extreme -- neither a blanket prohibition on peaceful protests nor an unrestricted right to demonstrate regardless of its impact on public order.