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Around the October protest at Jantar Mantar, the Delhi Police took a large number of people into custody. Police sources put the figure on the day itself at over 7,000. Very few of them were “arrested”. Most were “detained”. Some were “removed”. A handful of organisers were placed under “preventive arrest” and produced before a Special Executive Magistrate. These labels are not interchangeable, and the choice between them is not a technicality. It decides whether the constitutional safeguards against arbitrary arrest apply at all.

One person detained during the protests, who asked not to be named, told me that they were picked up by the police near Mandi House and later left at Narela, on the northern edge of the city, roughly 40 kilometres away. Whatever its legal label, that is a period of custody, and it raises the question this article addresses: which safeguards apply to it?

Three provisions, three sets of safeguards

Reports so far point to at least three legal routes. The president of a student organisation was detained under Section 65 of the Delhi Police Act, 1978 and released. One of the organisers was arrested under Sections 126 and 170 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) and produced before a Special Executive Magistrate. And a petition now before the Supreme Court challenges the use of Section 172 of the BNSS against those detained or turned back on their way to the protest.

Section 65 of the Delhi Police Act obliges every person to conform to the reasonable directions of a police officer and lets the officer restrain or remove anyone who does not, either taking the person before a magistrate or, in trivial cases, releasing them once the occasion has passed. Section 172 of the BNSS, which has no equivalent in the 1973 Code, now does much the same thing for the whole country. Every person must conform to the “lawful directions” of a police officer given under the preventive chapter, and the officer “may detain or remove any person resisting, refusing, ignoring or disregarding” such a direction, before either taking the person to a Magistrate or, “in petty cases”, releasing them within twenty-four hours.

Neither provision uses the word “arrest”. Neither requires the officer to record reasons. Neither says what makes a direction reasonable or lawful, or what counts as a “petty” case. Section 170, by contrast, is an arrest power: it permits arrest without warrant of a person “designing to commit” a cognizable offence. It at least engages Chapter V of the BNSS and the duty to produce the arrested person before a Magistrate.

The Article 22 problem

Article 22(1) requires that a person who is arrested be informed of the grounds of arrest as soon as may be. Article 22(2) requires production before the nearest magistrate within twenty-four hours. In Prabir Purkayastha v. State(NCT of Delhi), 2024 INSC 414, the Supreme Court held that the grounds must be communicated, and that a failure to do so vitiates the arrest and the remand that follows. In Vihaan Kumar v. State of Haryana, 2025 INSC 162, it added that the burden of proving compliance lies on the police, that telling a relative or preparing an arrest memo does not suffice, and that once a violation is shown, the court must order release.

These are among the strongest liberty protections the Court has developed in recent years. But they attach to “arrest”. The petition challenging Section 172 makes this point directly that by using “detain or remove" rather than “arrest”, the provision allows the police to restrain a person without triggering the safeguards of Chapter V or Article 22(1), (2) and (5). The same is true of Section 65 of the Delhi Police Act. A person held in a bus or a police station for several hours is in custody in every practical sense, whether or not the police record it as an arrest. On the present structure of the law, that person may have no grounds to be told and no magistrate to be produced before.

The question the courts must now answer is whether Article 22 turns on the label the police choose or on the fact of custody. There is a strong case for the second answer. Article 22 protects against the deprivation of liberty by the executive without judicial oversight. A reading that allows the executive to escape that protection by calling an arrest a “detention” would hollow out Purkayastha and Vihaan Kumar in exactly the situations, large-scale preventive detentions, where they are most likely to be needed.

The police's position

The police's position deserves to be set out fully. In the contempt proceedings arising from the restrictions, the Delhi Police Commissioner has told the Supreme Court that no one was illegally detained. The police say permission for the protest was refused because notice was given late, and a prohibitory order under Section 163 of the BNSS was in force. On the NSA, the Delhi Police have said that the delegation of detention power under Section 3(2) is a routine quarterly renewal that predates the protests. And in Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Supreme Court itself accepted that protest at Jantar Mantar may be regulated.

These points go to whether the restrictions were justified. They do not answer the Article 22 question. MKSS permits regulation of a protest site. It does not authorise the interception of individuals at airports and railway stations, far from the site, before any direction could have been given to them at all. A prohibitory order under Section 163 may make an assembly unlawful, but it does not by itself supply the individual grounds that Article 22(1) requires for each person deprived of liberty. And if, as the police say, the detentions were lawful, it should be straightforward to show what direction each detainee disregarded, when, and why it was lawful. Vihaan Kumar places that burden on the police.

Why this matters beyond Delhi

Section 172 matters most because it is national. What was once a Delhi-specific police-act power is now available to every police force in India, in a form that the arrest safeguards may not reach. If it becomes a routine tool of crowd management, the protections of Purkayastha and Vihaan Kumar will protect the person who is formally arrested, but not the larger number who are held without being arrested.

Three reforms

First, the Supreme Court should hold, in the pending challenge or otherwise, that the safeguards of Article 22(1) and (2), as explained in Purkayastha and Vihaan Kumar, apply to any custodial restraint under Section 172 of the BNSS or Section 65 of the Delhi Police Act, whatever the police choose to call it. Grounds should be given at the time of detention, preferably in writing, and a record should be kept of each detention, its duration and the direction disregarded.

Second, Section 172 should be read down, or amended by Parliament, so that a “lawful direction” is one that is necessary to prevent a specific cognizable offence and proportionate to that risk, and so that "petty cases" are defined. Without these limits, the provision is capable of operating as a general power of detention without the safeguards that accompany arrest.

Third, where organisers are proceeded against under Sections 126 and 170, the security proceedings should be decided by a Judicial Magistrate rather than an Executive Magistrate. The authority that decides whether a person may be bound over to keep the peace should be independent of the executive that initiated the proceedings.

None of this prevents the police from maintaining order. It requires only that when the State takes a person into custody, it says why, keeps a record, and answers to a court. Those obligations should not depend on the word the police choose to write in the register.

Author is an Advocate practicing at Supreme Court of India. Views are personal.

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