On 10 October 2026, section 163 BNSS order was again imposed in New Delhi prohibiting assembly of five or more persons, processions, public meetings, slogan-shouting, and speeches, inter alia, ahead of protests demanding removal of Chief Election Commissioner and suspension of SIR. However, the official order was not available in public domain.
It is crucial to note that the right to protest can be traced to Article 19(1)(a), 19(1)(b) and 19(1)(d) of the Indian constitution, guaranteeing us the freedom of speech, the right to assemble peacefully, the right to move freely respectively. However, these rights are subject to reasonable restrictions in the interest of sovereignty and integrity of India and public order.
Section 163 BNSS
Provisions like section 163, BNSS provide mechanisms for putting restrictions on the right to protest. Section 163 BNSS replaced section 144 of CrPC in 2024 and is essentially the same as the old provision. The archetypal order under section 163, BNSS “restricts the right of public assembly by prohibiting gatherings of persons in groups of five or more, thereby preventing protests, dharnas, and large meetings.” However, the provision confers very wide ended powers for these limited purposes.
The section's heading 'Power to issue order in urgent cases of nuisance or apprehended danger' gives a glimpse of these vaguely defined, sweeping powers. The section empowers the magistrate to pass orders which may be directed towards any person or towards any property in his/her possession or management. However, the direction should be such that it either prevents or tends to prevent a) 'obstruction, annoyance or injury to any person lawfully employed,' or b) 'danger to human life, health or safety,' or c) 'a disturbance of the public tranquillity, or a riot, or an affray.' Going with the literal meaning, the provision allows the magistrate to put restrictions even on mere 'obstruction' or 'annoyance' or 'injury' to any 'person lawfully employed' (which is not defined). This implies that ground (a) for restricting rights is for protecting an individual, someone lawfully employed and is not for 'public order' maintenance which is allowed by Art 19. Similarly, ground (b) protection of 'human life, health or safety' doesn't fall in either of the two constitutional grounds mentioned (sovereignty/integrity and public order). However, ground c) can be said to fall in 'public order.' Such an interpretation would clearly render the provision unconstitutional as the right to assembly will be restricted without meeting the reasonable restrictions requirements put by Article 19.
To address this issue, the Supreme Court in multiple judgements has read down section 144, CrPC. In Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and others, (1970) 3 SCC 746 while upholding the constitutionality of section 144, the court held in context of the section that “annoyance must assume sufficiently grave propositions to bring the matter within the interests of public order.” Similarly, in Babulal Parate v. State of Maharashtra, (1961) 3 SCR 423, the Supreme Court held that 'to prevent obstruction, annoyance, injury…' the prevention of such activities would be in the public interest which would further be in “the interest of maintenance of 'public order.'” Thus, the court interpreted a very high threshold for imposing section 144 orders, requiring the interests of public order. Besides, the use of the words 'urgent,' 'sufficient ground for proceeding' and 'immediate prevention or speedy remedy' require the presence of some urgent/emergent circumstances for imposing section 163 orders. This reading down has increased the threshold for imposing s. 144 orders ensuring that the grounds fall in the permissible constitutional limits.
Practical Use of Section 163 BNSS
Even though the section has been clearly read down and the need for using it judicially has been held, the section is being used for purposes which can clearly be said to be illegal and unconstitutional. In a report on section 144 use, the authors examined section 144 orders and noted the use of section 144 in matters including i) for establishing CCTV surveillance ii) for regulating business by mandating registration of documents and compulsory recording, iii) by 'securing public order' through preventing/regulating unlawful assembly or regulation of kite flying, firecrackers, or hookah bars. These are clearly not restraining orders (allowed by s. 144/163) and are rather regulating orders (not permitted by s. 144/163). Besides, they have been imposed even in absence of urgent/emergent circumstances (as required by s. 144/163). For instance, the sale/possession/consumption of gutka was prohibited in a J&K district under section 163 without existence of any emergency situation. Similarly, 163 orders have been imposed for installing CCTV surveillance all over the country without any urgent circumstances. Nor do these orders meet the high threshold of public order set out in the abovementioned judgements, for instance the order requiring construction agencies to furnish the details of their workers.
Not only this, the order under section 163 BNSS can be imposed only for two months. However, repeated renewal of these orders has been seen in places like Jantar Mantar. Such repeated renewal amounts to “banning” of public meetings, demonstrations, dharnas, etc., which was held to be an infringement of the right to protest in Mazdoor Kisan Shakti Sangathan. In Anuradha Bhasin as well the court ruled that such repeated section 144 orders amount to abuse of power.
Besides, even though the provision allows the order to be issued through a proclamation or publication, however that is allowed only when the usual course is not possible. In Babulal Parate and Ramlila Maidan Incident case, (2012) 5 SCC 1 cases, the Court recognised the need for section 144 orders to be in writing, so that they can be tested through judicial review. The law requires the authorities to place the material facts for invoking this power, making review possible. The recent section 163 order in Delhi was not made available publicly, taking away the right to get it judicially reviewed – a clear and fresh evidence of abuse of power.
Proportionality
The Supreme Court has applied a test - the 'Proportionality test' in multiple judgements in India including Modern Dental College (2016), Puttaswamy (Aadhar, 2017), Association for Democratic Reforms (2024) for determining the constitutional validity of restrictions on fundamental rights, and is also being used globally offering a higher standard of judicial scrutiny. The four-legs of the proportionality test include legitimate aim, suitability, necessity and balancing. Legitimate aim requires the analysis if the objective of putting the restrictions is a legitimate purpose. At the second stage, the State must establish that the law is indeed in furtherance of the legitimate aim that is contended to be served. The third stage, a very important stage, 'necessity' requires the examination of other possible means to achieve the same objective which are equally effective without restricting fundamental rights or restricting them less intensely. Suitability and necessity invite empirical questions whether the measure actually works, and are there alternatives? 'Balancing,' involves analysis of whether “the cost of the interference with the right is proportional to the extent of fulfilment of purpose.”
While dealing with section 144 orders, in Anita Kumar v Govt. of J&K, the Supreme Court ruled, “even when used, it should be minimum and proportional to the situation.” Similarly, in Ramlila Maidan Incident case, the court held that the restraint needs to be reasonable, least invasive, bona fide and minimal. It is probably in extension of it, the court in Anuradha Bhasin, ruled that section 144 orders restrict the fundamental rights and thus, should be in consonance with the mandate under Article 19 of the constitution, “inclusive of the test of proportionality,” thus, making it mandatory to meet the test requirements for section 144 orders imposition.
The use of the test forces the imposing authority to run a structured reasoning test to assess the need for restrictions and the nature and duration of them. Many measures fail at the necessity stage which requires the authorities to look for other less invasive alternatives. However, the practical reality is the blatant failure by authorities to fulfil the test requirements while imposing section 144 orders. The published orders often mention the grounds for restrictions meeting the first leg of the test but with no explanation for other requirements in the test, that is whether there are other alternatives available or not or whether the benefits when weighed against the costs are meagre.
This illegal use of the provision directly infringes the exercise of fundamental rights. The need is to ensure strict compliance with the requirements imposed by the provision and its judicial interpretation to prevent its misuse and abuse. One way forward could be delegation of powers to some independent body to review the imposition and to give reports on every such order whether it meets the requirements or not. Punitive measures, including departmental inquiries could be resorted to for non-compliance. Whatever the mechanism chosen, the need is to proactively ensure that the orders under section 163 BNSS are legal and do not cross the permissible limits.
Author is a Law student at National Law School of India University, Bangalore. Views are personal.