Delhi Protest | Section 172 BNSS Unconstitutional, Enables Arbitrary Detention By Police: Plea In Supreme Court

A petition filed in the Supreme Court has challenged the constitutional validity of Section 172 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (erstwhile section 144 of CrPC) contending that the provision empowers police officers to detain or remove people for disregarding their directions without adequate safeguards against arbitrary action.

Filed by B.Tech student Samriddhi Das, 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 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 Petitioner(s) submit that, taken together, these measures amount to a prior restraint on a peaceful, announced demonstration against a public authority; that they fail the test of proportionality; and that Section 172 BNSS, to the extent it enables en masse detention on the subjective satisfaction of the police, is manifestly arbitrary and violates Articles 14, 19(1)(a), 19(1)(b), 19(1)(d) and 21”, the plea states.

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 contends that the provision had no counterpart in the Code of Criminal Procedure, 1973, and leaves crucial terms, including “lawful directions”, “remove” and “petty cases”, undefined. According to the petition, the absence of clear limits on the directions police may issue and the circumstances in which a person may be detained creates the potential for arbitrary and discriminatory enforcement.

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.

The petitioner states that she was travelling to the protest but could not reach the site because of the restrictions imposed by the authorities. The petition also challenges prohibitory measures under Section 163 BNSS, the closure of Metro stations, cancellation of trains and suspension of mobile internet in parts of Delhi.

On Section 172 BNSS, the petition argues that the use of the expressions “ignoring” or “disregarding” a police direction permits detention without requiring proof of a deliberate violation or an offence. It further highlights that Section 172 does not prescribe requirements for recording reasons, communicating grounds of detention or maintaining records, and does not clearly require production before a Magistrate within a specified period in every case.

“Section 172 BNSS, as invoked, empowers a police officer to give directions to persons and to detain or remove any person who resists, refuses or ignores such directions. Unlike Section 170 BNSS (preventive arrest of a person known to design a cognizable offence) and Section 35 BNSS, it carries no threshold of reasonable apprehension of a cognizable offence, no record of reasons, and no outer limit tied to judicial review. Section 172 BNSS is therefore unconstitutional”, it states.

The petition argues that the provision's reference to “lawful directions” does not adequately constrain police discretion because it does not define the permissible subject, form or duration of such directions. It contends that the power can be used to issue directions affecting speech, peaceful assembly, movement and other protected activities, with detention serving as an immediate consequence of non-compliance.

The petitioner argues that a law authorising deprivation of liberty must contain safeguards against arbitrary exercise of power. The petition also contends that that police cannot avoid constitutional safeguards governing arrest and detention merely by describing the action as “detention” or “removal” rather than arrest.

“Section 172 requires no threshold satisfaction, reasons, record or time-bound production, and in a "petty case" the detention escapes judicial scrutiny altogether. Section 170, by contrast, permits preventive arrest only where a design to commit a cognizable offence is known and cannot otherwise be prevented. By using "detain or remove" rather than "arrest", Section 172 also sidesteps the safeguards of Chapter V. If arrest on an allegation of an offence 15 must be justified, detention where no offence is alleged cannot rest on a direction having been “ignored”. Section 172 also embeds none of the safeguards of Article 22(1), (2) or (5): no grounds, no counsel, no representation, and no mandatory production within twenty-four hours, which applies only to release in “petty cases””, it contends.

The plea further argues that Section 172 permits excessive delegation of power to the police by leaving the scope of permissible directions and the circumstances justifying detention insufficiently defined. It seeks, in the alternative, a reading down of the provision to require individualised and recorded reasons, judicial scrutiny and compliance with constitutional safeguards.

Apart from challenging Section 172, the petition also challenges the prohibitory order issued under Section 163 BNSS in connection with the Jantar Mantar protest and seeks a declaration that the detentions carried out on October 10 under Section 172 were illegal. It also seeks compensation for persons unlawfully detained, disclosure of the number of detainees and the grounds, and binding guidelines governing peaceful assemblies.

The petition also seeks preservation and production of CCTV footage, drone footage, body-worn camera recordings, police control room logs and other electronic material relating to the protest. It seeks directions to the authorities to ensure that the whereabouts of protesters still in custody are communicated promptly to their families and legal counsel, or that such persons are produced before the Court.

The petitioner has further challenged the closure of Metro stations, cancellation of trains and suspension of mobile internet in connection with the demonstration, seeking a declaration that these measures were disproportionate and unconstitutional.

Among the other reliefs sought is a declaration that peaceful protests should require only intimation to the authorities, rather than prior permission. The petitioner has also sought binding guidelines governing peaceful assemblies and the exercise of powers under Sections 163 and 172 BNSS.

As an interim relief, Das has asked the Supreme Court to restrain the Delhi Police Commissioner from invoking Section 172 during the pendency of the petition.