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The Supreme Court today directed the Delhi Police to place on record the prohibitory orders promulgated under Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (erstwhile section 144 of CrPC) restricting public gatherings and demonstrations on various dates over the past two weeks in Delhi.

The Court also directed all law enforcement agencies to preserve CCTV footage and other digital material relating to the protests.

During the hearing, Senior Advocate Menaka Guruswamy pointed out that the affidavit filed by the Delhi Police Commissioner did not contain the Section 163 orders or disclose the number of persons detained during the protests against Chief Election Commissioner Gyanesh Kumar and the ECI's Special Intensive Revision.

Justice Joymalya Bagchi observed that the lawyers were “arguing against a ghost” because the complaint was that the Section 163 order had not been placed on record.

Senior Advocate Kapil Sibal submitted that none of the lawyers had seen the order.

Justice Bagchi then asked Solicitor General Tushar Mehta to place the promulgated order on record in the authorities' further affidavits. 

Section 163 BNSS empowers an Executive Magistrate or other authorised magistrate to issue urgent preventive orders where immediate action is necessary to prevent danger, obstruction, injury or a disturbance of public tranquillity. It is the successor provision to Section 144 of the Code of Criminal Procedure, 1973.

Prohibitory orders under Section 163 were imposed across the New Delhi district ahead of the proposed protest at Jantar Mantar against the Chief Election Commissioner on October 10. The restrictions prohibited public gatherings or assemblies of five or more people, processions, demonstrations, picketing and dharnas without prior written permission.

The Delhi Police had denied permission for the proposed October 10 protest organised by the Cockroach Janta Party (CJP), citing the late submission of the application and alleged violations during an earlier demonstration.

In its affidavit before the Supreme Court, the Delhi Police defended the restrictions imposed during the protests, referring to the previous conduct of the organisers and the potential for disruption to public order.

The police also submitted that, given the sensitivity of the national capital and high-profile diplomatic visits and international conferences, including the 18th BRICS Summit, several police stations had issued Section 163 orders extending beyond the protest area at Jantar Mantar. It stated that directions had subsequently been issued to remove such orders in compliance with the Supreme Court's October 11 directions.

The Court also issued notice on a writ petition challenging the constitutional validity of Section 172 of the BNSS. The plea contends that the provision empowers police officers to detain or remove people for disregarding their directions without adequate safeguards against arbitrary action.

Section 172(1) BNSS requires people to comply with lawful directions issued by a police officer in the discharge of duties under Chapter XII, which deals with preventive action by the police. Section 172(2) empowers a police officer to detain or remove anyone who resists, refuses, ignores or disregards such a direction, and either take the person before a Magistrate or release them as soon as possible within 24 hours in petty cases.

The petition argues that the provision allows detention on the basis of a police officer's subjective assessment, without requiring reasonable apprehension of a cognizable offence, recorded reasons or adequate safeguards for judicial scrutiny.

The writ petition seeks a declaration that Section 172 violates Articles 14, 19 and 21, which guarantee equality before law, fundamental freedoms and protection of life and personal liberty.

The plea arises from the police action during the protest at Jantar Mantar in Delhi on October 10 against the Chief Election Commissioner in connection with the Special Intensive Revision (SIR) of electoral rolls. The petition contends that thousands of people, including students, activists, lawyers, journalists and political leaders, were detained or prevented from reaching the protest site, including persons intercepted far from the area and some removed from trains.

A bench of CJI Surya Kant and Justice Joymalya Bagchi was hearing a number of petitions concerning the Delhi protest against Chief Election Commissioner Gyanesh Kumar, including pleas alleging police excesses against protesters, journalists and lawyers, contempt case over restrictions on public transport, and a challenge to the constitutional validity of a provision of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

The petition by Rahul Gandhi challenging the Special Intensive Revision (SIR) of electoral rolls and the petitions concerning the gathering and alleged disruption at the Supreme Court premises on October 12, when Rahul Gandhi and other Opposition leaders marched towards the Court Registry to file a petition challenging the Election Commission's Special Intensive Revision (SIR) exercise were also heard.

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