On 14 October 2026, The Indian Express published an opinion piece by Faizan Mustafa and Ayan Aditya Giri, “When the state paints dissent as disorder” (also run as “In Delhi protests, an erosion of liberty”). It asks three questions of the protests demanding Chief Election Commissioner Gyanesh Kumar’s resignation: was the assembly peaceful, was the apprehension of disorder specific and imminent, and was the police response proportionate? The first it has already answered, calling them “the peaceful Delhi protests”. It closes on the line that order and liberty are “not rivals but co-tenants of one republic”.
Fine. But a co-tenant also follows the house rules. On one of the three questions the authors have a point. On the other two they leave out the half of the record that answers them.
Take the first question, whether the assembly was peaceful. By the authors’ own test, “peacefulness is the condition of that protection”. The organisers applied for Jantar Mantar on 7 October 2026, three days before the 10 October 2026 march. Police say the guidelines require ten days. On 9 October 2026 the police refused permission. They cited the short notice, the group’s failure to follow directions at an earlier demonstration, and public safety, and said a prohibitory order under Section 163 of the Bharatiya Nagarik Suraksha Sanhita was in force. The organisers went ahead anyway.
On the day, officials say, more than 15 police personnel were injured, among them a Deputy Commissioner. Near Akashvani Bhawan, a short walk from Parliament, protesters jumped barricades and threw stones. Police registered over 20 FIRs, for assault and obstruction among other charges. To be fair, one of them is against Hindu Raksha Dal men accused of attacking students. Three days later, about twenty volunteers got into a barricaded Jantar Mantar. Al Jazeera reports video of a dozen of them going over a gate and barricades. Among those detained were the leaders Saurav Das and Ashutosh Ranka. Two days earlier they had been released on a promise not to breach the peace. Police have registered an FIR for trespass and for breaking that bond.
The authors lean on the law, so take the law. Article 19(1)(b) protects assembly “peaceably and without arms”, and Article 19(3) allows reasonable restrictions in the interests of public order. Mazdoor Kisan Shakti Sangathan (2018), the judgment that reopened Jantar Mantar, struck down a blanket ban. In the same breath it told the police to frame rules for protests there. In Amit Sahni (2020), the Court held that public spaces cannot be occupied indefinitely. The authors also invoke Ram Manohar Lohia and its distinction between public order and law and order. The distinction is real. But when police are hit by stones near Parliament, who can say the apprehension of disorder was not “specific and imminent rather than vague and general”?
Proceeding after an explicit refusal is not exercising a right. It is choosing to defy a regulation and then asking for sympathy.
The third question is whether the police response was proportionate. Here the authors are on firmer ground, and it should be said plainly. On 9 October 2026 the Supreme Court said the curbs on public transport “appeared to be overreaching” and told the authorities to reconsider closing 57 metro stations. The next day 45 stations were shut anyway, by the Solicitor General’s own count. On 11 October 2026 the Court held a special Sunday sitting. It found a prima facie case of contempt and issued notice to the Union Home Secretary, the Delhi Police Commissioner and the head of the Delhi Metro. A defence of the state that leaves this out is not worth writing.
On detention, the authors set out Article 22’s safeguards: custody limited in duration, grounds communicated, production before a magistrate within 24 hours. A habeas corpus petition alleges more than 7,000 detentions, many of them outside the prohibitory zone. That is a serious charge, and the Court has issued notice and ordered that no one be detained except in strict accordance with law. On 15 October 2026 a bench of Chief Justice Surya Kant and Justice Joymalya Bagchi went further. It ordered that all CCTV and digital material from the protests be preserved, told Delhi Police to produce its Section 163 orders and say how many people it had detained, issued notice to the Union and the police on 46 petitions, and said it may set up a committee to hear women journalists’ complaints of violence. Where excess is alleged, the answer is evidence in each case and judicial review, and both are under way. A state that “paints dissent as disorder” does not usually sit through that.
The authors end by saying the state must keep the constitutional avenues of dissent “genuinely open”. They are open, and the record shows it. A court that sits on a Sunday and puts the officials at the top of the chain on notice is not a closing door. It is the door working. And it is not the only one the organisers’ cause has been through. The grievance is “vote chori” in the Special Intensive Revision. On 27 May 2026 the Supreme Court upheld the SIR. The Constitution’s own route for removing a CEC runs through Parliament, and on 6 April 2026 the Lok Sabha Speaker and the Rajya Sabha Chairman refused to admit the opposition’s notices. Fresh petitions against the CEC’s decisions were listed before a three-judge bench on 5 October 2026, five days before the march. On 15 October 2026 the Court issued notice to the Commission and the CEC on the opposition’s own petition, and asked Rahul Gandhi to explain the march his side had led to the Supreme Court three days earlier. “Nobody can browbeat the judiciary,” the Chief Justice said. Losing in a forum is not a licence to leave it. Leaving one while it is still hearing you is harder to excuse.
The authors quote Dr Ambedkar’s speech of 25 November 1949, down to his warning that where constitutional methods are open, civil disobedience, non-cooperation and satyagraha are the “grammar of anarchy”. From it they draw a duty on citizens to keep dissent “peaceful and lawful”. That is the duty the organisers broke when they marched after permission was refused. As for Brandenburg and Brokdorf, India does not need foreign cases for proportionality as it has its own record; Articles 19(2) and 19(3) already hold it. Proportionality cuts both ways: the state cannot extinguish the right and the organisers cannot treat regulation as optional.
So, not every detention was lawful, and not every closure was justified. The Supreme Court has already said as much. But “erosion of liberty” needs the whole record, and three questions of our own settle it. Was permission refused through a lawful process? Yes. Did the organisers comply? No. Do those detained have a remedy? They are using it in the Supreme Court as I write. Order and liberty may be co-tenants. But a tenant who jumps the gate does not get to complain about the lock.
