A defining feature of the recent Cockroach Janta Party agitation related to its underestimation by the government, which hoped to quell the protests by force. The net result was widespread student anger, which served to entrench the agitation. The Supreme Court has just commenced hearing petitions on the police’s alleged use of disproportionate force, especially on July 20 in Delhi and a constable’s aerial firing of an assault rifle allegedly to disperse crowds on July 25 in Bihar’s Siwan. The Court has also agreed to hear petitions from the families of police personnel claiming that they were assaulted and “lynched”. The ferocity of the July 20 police crackdown against protesters is not in doubt; in addition to tear gas, videos also purported to show the police using lathis studded with nails. But as Justice Joymalya Bagchi observed, the state should also answer why some police officers allegedly lacked protective gear. Under-equipped police are more likely to escalate force out of fear, and this is why international best practices in crowd control involve graduated responses. There is also merit in pleas that the same police force accused of using excess force also investigating it could potentially undermine credibility.

However, the Chief Justice of India’s remark that protests are permissible “with due permission and at designated places” could come at odds with the right to protest. The democratic purpose of a protest is to inconvenience the state and thus should not be limited to its happening at the state’s convenience. At the same time, not every inconvenience is constitutionally protected. The answer lies in proportionality. If the CJI’s insistence on ‘discipline’ comes to mean protests must be orderly and predictable, it risks imposing administrative preferences on a constitutional right. The state is responsible for preventing violence, protecting life, and maintaining essential services. But modern cities are also dense and even a peaceful blockade could deprive thousands of uninvolved citizens of their liberties. The judiciary should thus resist conflating disruption that results in inconveniencing the public — which is one of the mechanisms by which a protest acquires its political force — and violence, which infringes on the rights of others. A unified set of procedures will also be welcome since policing is a State subject under the Seventh Schedule, and States have different training, equipment, escalation, and documentation rules. A national protocol could standardise the thresholds at which the use of high-impact crowd-control measures can be authorised and mandatory documentation of lathi charges, medical assistance after use of force, preservation of evidence, and independent inquiries into serious injuries.