During this period the police were accused of brutality Cockroach Janata Party (CJP) The protests in Delhi have once again brought to the fore a constitutional and legal question – how much force can the police legally use to disperse a protest?
While Indian law empowers the police to maintain public order, courts have repeatedly emphasized that those powers are bound by the Constitution and the principles of legality, necessity and proportionality.
But the legal framework remains fragmented.
Even though the Indian Civil Security Code (BNSS) provides the power to disperse unlawful assemblies, the operational protocols for crowd control – including lathicharge, use of tear gas, recording of operations and deployment procedures, are largely governed by state police laws, police manuals and executive standing orders – resulting in varying practices across different jurisdictions. For this reason, questions regarding the use of force and accountability remain to be resolved on a case-by-case basis.
Right to protest, but not without limits
The starting point is the Constitution. Article 19(1)(a) guarantees freedom of speech and expression, and Article 19(1)(b) protects the right to assemble peacefully and without arms. However, no right is absolute.
Under Articles 19(2) and 19(3), the State may impose reasonable restrictions in the interest of the sovereignty and integrity of India, the security of the State and public order.
It is this constitutional balance that informs India’s public order laws. In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Supreme Court held that the right to protest is an eminent constitutional freedom, but it must co-exist with the rights of other citizens. Two years later, in the case Amit Sawhney vs Commissioner of Police (2020) arising out of the Shaheen Bagh protests, the court reiterated that although dissent is an integral part of democracy, public thoroughfares and roads cannot be occupied indefinitely.
Therefore, the law allows neither extremes – neither a blanket ban on peaceful protests nor an unrestricted right to demonstrate regardless of its impact on public order.
When can the police intervene?
The primary statutory framework today is the Indian Civil Defense Code, 2023 (BNSS).
The most frequently invoked preventive provision is Section 163 of the BNSS, which is the successor to the earlier Section 144 of the Code of Criminal Procedure (CrPC). The provision empowers an executive magistrate to issue prohibitory orders in urgent cases where there is sufficient ground to prevent obstruction, danger to human life, disturbance of public peace or riot. Such orders often prohibit gatherings, processions or movements of five or more people in specified areas.
If an assembly nevertheless becomes unlawful or refuses to disperse, sections 148 to 151 of the BNSS (corresponding to earlier sections 129 to 132 of the CrPC) empower an executive magistrate or, in some situations, the police officer in charge to order the assembly to disperse.
If the order is disobeyed, the assembly may be dispersed by force and, in exceptional circumstances, with the assistance of armed forces in accordance with security measures prescribed under law.
Notably, the BNSS authorizes the use of force, but it does not define the degree of force to be employed or prescribe sequential response mechanisms. Instead, it contemplates only the use of such force as may be necessary to disperse the assembly, and the contours of that power are largely left to judicial interpretation.
In situations when violence breaks out, offenses under the Indian Code of Justice, 2023 (BNS), such as rioting, unlawful assembly, assault on public servants or obstruction of public servants in the discharge of duty, can also be invoked depending on the facts of each case.
What has the Supreme Court said?
Although Parliament has never created any comprehensive statutory framework governing police use of force during protests, constitutional courts have gradually developed precedent.
The most authoritative pronouncement is the Supreme Court judgment in the Ramlila Maidan incident versus Home Secretary, Union of India (2012), which examined the midnight police crackdown on protesters led by yoga guru Ramdev.
The court held that even where an assembly is unlawful or prohibitory orders are in place, police action must meet the constitutional test of necessity and proportionality. The purpose of the force is to restore public order, not to punish protesters. The court underlined that the State cannot use force that is excessive or disproportionate to the threat.
The court unequivocally condemned the police action, calling it an “abuse of power” and an “invasion of liberty.” Beyond a mere declaration, it ordered both departmental and criminal proceedings against police personnel found responsible for acts including brick throwing, lathi charge and use of tear gas. It further directed that interim compensation be given to those injured in the action.
The decision highlighted that police officers are expected to attempt peaceful dispersal before taking forceful measures, issue adequate warnings through public-address systems wherever circumstances permit, and use only the minimum necessary force to achieve a legitimate objective.
The court said that excessive force may violate Article 21, which guarantees protection of life and personal liberty.
This principle has since become the touchstone by which courts evaluate allegations of police excesses during protests.
Videography, Personnel Identification and Accountability
One of the recurring criticisms following almost every major protest concerns the difficulty in identifying individual police personnel allegedly involved in acts of excessive force.
Unlike many other jurisdictions, India has no central statute that requires every police officer deployed for crowd control to wear a visible identification number or personally traceable mark while performing riot-control duties.
Similarly, neither the BNSS nor the BNS has any provision mandating body-worn cameras or compulsory videography of crowd-control operations.
Videography today is largely governed through executive directives, police manuals and administrative standard operating procedures, which vary by state and police force.
Yet courts have increasingly recognized the evidentiary value of such recordings. In the ongoing trial related to the CJP protests, the Delhi High Court has directed the police to preserve video footage and related records while considering petitions alleging police brutality.
The legal position on uniforms is equally nuanced. While police service regulations generally require personnel to perform official duties in prescribed uniform unless exempted for operational reasons, there is no specific statutory provision that explicitly mandates uniformed deployment during every protest-control operation.
Plain-clothes deployment, intelligence gathering and special operations will remain administrative exceptions. These gaps often complicate efforts to establish individual accountability when allegations of excessive force arise.
Also read: Supreme Court can hear plea on closure of metro stations if authorities fail to take action: CJI
the way forward
The recent allegations arising from the Delhi protests can be tested not only against the broad powers available to the police under the BNSS, but also against the constitutional standards repeatedly expressed by the Supreme Court.
Question before Delhi High CourtWhat is now seized with petitions alleging police brutality is unlikely, whether the police had the power to disperse the gathering. Rather, they will focus on whether the protest has become unlawful; whether the prohibitory orders were validly imposed; whether a warning was issued before forceful action; whether the force was proportionate to the perceived threat; whether less intrusive alternatives were available; and whether available video and documentary evidence supports or refutes allegations of cruelty.
In many ways, this controversy also revives a larger policy debate. India continues to lack a uniform legal framework on the use of force by police during public protests. Meanwhile, concepts such as “minimum necessary force”, gradual escalation, mandatory recording of crowd-control operations, visual identification of officers and uniform national standards continue to be derived primarily from constitutional jurisprudence and administrative practices.
