In the pleas arising from the recent Delhi protests, the Supreme Court on Thursday (October 15) said that it will not examine constitutional validity of Section 163 of BNSS, 2023 (erstwhile Section 144 of CrPC), which empowers executive magistrates to issue prohibitory orders.

A bench of Chief Justice of India Surya Kant and Justice Joymalya Bagchi observed that the Supreme Court had upheld the validity of Section 144 CrPC, the provision corresponding to Section 163 BNSS, in Babulal Parate v. State of Maharashtra, (1961) 3 SCR 423.

The Court, however, notice on a challenge to Section 172 BNSS(which was not there in CrPC), which empowers police officers to detain or remove people who resist, refuse or disregard their directions, and directed the Union Government to file its reply within two weeks.

“Oral submissions were made with regard to the vires of Section 163 BNSS. However, as the pari materia provision of Section 144 CrPC has been upheld in Babulal Parate v. State of Maharashtra, (1961) 3 SCR 423, we are not inclined to entertain the same. Accordingly, issue notice, returnable on 19.11.2026, only on the limited issue pertaining to the constitutionality of Section 172 BNSS,” the Court observed.

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.

The Court was hearing a number of petitions concerning the Delhi protest against Chief Election Commissioner Gyanesh Kumar and the Election Commission's Special Intensive Revision (SIR) of electoral rolls, 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 Court adjourned two petitions challenging the validity of orders issued under Section 163 BNSS to November 19. The Court also directed the Union Government to place on record the orders promulgated under Section 163 in New Delhi, including the order dated August 23, 2026.

In addition, all law enforcement agencies were directed to preserve CCTV footage and other digital evidence collected in connection with the protests. Private parties who have collected such material were permitted to place it before the Court.