IN THE LAST FEW WEEKS, thousands of concerned individuals, most of them young and almost all of them citizens of this country, tried to reach Jantar Mantar to demand the resignation of Chief Election Commissioner Gyanesh Kumar. They did so for his alleged role in violating the Constitution and committing multiple illegalities while, among others, implementing SIR leading to disenfranchisement of millions of voters and manipulation of electoral roll of the entire country. The State employed coercive power to stop them, and its severe crackdown served as a deterrent as much as policing. A prohibitory order under Section 163 covered parts of central Delhi. Dozens of metro stations stayed shut. The Supreme Court had found the curbs on Delhi's trains and metro "overreaching" and directed that services run, if only in a regulated manner. The leaders of the Cockroach Janta Party were first detained aboard their flight at Delhi airport, and, days later, two of them were sent to judicial custody for allegedly trespassing into Jantar Mantar. Delhi Police has now de-notified Jantar Mantar as a protest site and named three replacements, each falling short in its own way.
The State Hollowing Out right to protest and Judiciary’s Feeble Response
In “Exit, Voice, and Loyalty” (1970), Albert Hirschman, a 20th-century activist and noted academic, introduced a framework for how people respond to decline in organisations or states: either by leaving ("exit") or by speaking up to press for reform ("voice"). A citizen must rely on voice, which he defined broadly as “any attempt at all to change, rather than to escape from, an objectionable state of affairs.” According to him, petitions, appeals to a higher authority, and protests are meant to move public opinion. "Voice is political action par excellence," he wrote. In a functional democracy, citizens’ voice has two primary channels of political participation: the ‘right to vote’, exercised at set intervals, and the ‘right to protest’, exercised in between. Citizenship, in this sense, is less a status one holds than a voice one can use, and the recent incidents narrowed both of its channels at once.
Electoral Exclusion and Gandhi’s Remedy
A citizen deleted from the electoral roll and then prevented from exercising the ‘right to protest’ loses both avenues for being heard: the elections, where the remedy comes too late, and the street, where permission, passage and place are subjected to pervasive restrictions. A right of appeal to restore one's name in the electoral rolls is worth little if the appeal cannot be decided before the election. In West Bengal, an RTI response indicated that about 90 per cent of the appeals it covered were restored. This indicates that a number of those who could not vote in the State Assembly election may have been entitled to do so.
For a citizen, the right to vote is the means to protect every other right. A deleted voter cannot cast a vote to challenge their own exclusion. An election is accepted by the public at large because it commands confidence, including among those who lose. If the electoral roll is in doubt and the remedy for deletion arrives after polling, the result carries a flaw that counting cannot cure.
Mahatma Gandhi, in his article “Deprived of His Right”, published in Young India on July 17, 1924, referred to the issue of deletion of a voter’s name from the electoral list prior to elections and restoration after completion of the election as an “additional cause for non-cooperation.”
The Right to Protest and the State’s Restrictions
After the erosion of the 'Right to Vote', the 'Right to Protest’ is now constrained through the combined operation of arbitrary permission requirements, restrictions on passage, massive police crackdown and the selection of new, inaccessible venues.
Permission Denied
Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) was used to require prior written permission for gatherings of five or more across the New Delhi district. The protesters’ request for permission was refused on grounds that included late filing and alleged violations committed at an earlier protest. The Supreme Court has since directed the police to place the relevant orders on record.
The constitutional question is whether the executive can decide if, and when, citizens may publicly protest against the constitutional authority. In Himat Lal K. Shah v Commissioner of Police (1972), the Court held that a permit system cannot give the licensing authority unchecked discretion. A protest held in response to events is usually called at short notice. If short notice is enough to refuse, the citizens’ voice is defeated every time.
Mobility and Communication Blocked
Trains to New Delhi were cancelled, metro stations were shut, mobile internet was suspended around the site, and thousands of people were detained. When people are held for where they were going rather than for anything they did, the measure no longer regulates conduct. It simply becomes a barrier to the right to protest. So, when do preventive measures become practical barriers to peaceful assembly? When they are applied to everyone in advance none can exercise the constitutionally enshrined fundamental right to protest.
Displacement Protest Site, Banishing Protest
The Court, on numerous occasions, has approved designated sites on the footing that protesters cannot occupy public roads indefinitely. That reasoning assumes the site is one a protester can use. The approach turns exclusionary when the venue is inaccessible, expensive or too far from the audience. According to the UN Human Rights Committee’s General Comment No. 37, peaceful assemblies should, as far as possible, take place within sight and sound of their target audience. The three protest sites have sheer impracticalities. The Ramlila Maidan is available for an upfront outlay of about Rs 1.21 lakh a day, making it impossible for smaller pressure groups and aggrieved citizens to hire it. The other two sites are the CBD Ground in Shahdara and the Burari Ground. Burari is vast enough to make any crowd look thin and far enough from parliament to keep it out of sight.
The Erosion of Democratic Agency
The State did not wait for the protest to begin. It used its force to make sure it never did. A State confident in its reasons could have let the crowd gather. Deterrence on this scale tells citizens that dissent will be punished before it is even voiced. This is how democratic agency perishes. These anti-protest measures, which may appear individually defensible, can become unconstitutional if their combined effect renders democratic participation ineffective. Since Bennett Coleman (1972), the Court has looked at the direct and inevitable effect of state action, not its form, and since Maneka Gandhi (1978), it has refused to treat fundamental rights as watertight compartments. The question is not whether each step was lawful. It is whether the citizen was left with a voice that works.
The Court’s Turn
Hirschman's voice had one more channel: the appeal to a higher authority. Several affected citizens made that appeal to the Court. John Hart Ely's Democracy and Distrust (1980) explains why the Court should answer it with special care. Courts, he argued, owe deference to elected power except where "the ins are choking off the channels of political change". The vote and the protest are those channels. So far, the Court’s response has been feeble. Earlier, it upheld the Special Intensive Revision (SIR) and declined to set a timeline for Bengal's appeals. It has not yet protected the ‘right to protest’. However, the pending case allows it to do more: hold that a designated site must be one that a citizen can reach, afford, and be heard at; that bonds and detentions require individual reasons, not merely a protest call; and that safeguards against wrongful deletion must be in place before polling day. Hirschman saw loyalty as what makes members stay long enough to be heard. Loyalty without voice is a passive citizenry. A democracy that leaves its citizens without a voice has stopped asking for their consent.
On September 2, 2026, while quashing a case under the National Security Act (Akriti Chaudhary 2026), Justice Achal Sachdev and Justice Atul Sreedharan of Allahabad High Court observed, “Preventing people from gathering in public spaces or agitating their rights on the grounds of assumed breach of peace, would be throwing the baby out of the bath water. If such a view is taken by the State and approved of by the Courts, it would lead to a cessation of the collective expression of opinion in public spaces. The Constitution protects such a right, and the same cannot be trifled with merely on the subjective opinion of the State.”
Conversely, the State's subjective opinion is eroding the rights to protest and vote. Gandhi’s assertion in 1924 that the deletion of a single voter's name provided “an additional cause for non-cooperation” assumes greater relevance for India today, which is plagued by assaults on adult suffrage and the right to protest.