On October 10, 2026, a protest at Delhi’s Jantar Mantar was supposed to take place. For many who set out to participate in this protest, the trip was cut short on the railway platform itself. People travelling to Delhi for the protest were reportedly detained in several States before they even reached the capital.
In Madhya Pradesh, at least 30 people were taken off trains and were detained at Bhopal, Gwalior and Itarsi. In Delhi itself, the police had imposed prohibitory orders under Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which bars assemblies of five or more, processions and dharnas without prior written permission.
None of this is new. What is new is the provision the State now uses to justify it. When the Uttarakhand High Court asked, in July, under what law an activist on his way to an earlier protest at Jantar Mantar had been taken off a train at Rishikesh, the State’s answer was Section 172 of the BNSS. That answer deserves scrutiny, because Section 172 does not carry the power it is being asked to carry. It is a power to enforce a police officer’s own directions within one narrow chapter of the Sanhita. It is being used to enforce a magistrate’s order made under another chapter, against the people who have not even reached the place that the order covers.
Section 172(1) binds all persons to “conform to the lawful directions of a police officer given in fulfilment of any of his duty under this Chapter.” Section 172(2) allows the officer to “detain or remove” anyone “resisting, refusing, ignoring or disregarding” such a direction, and then either take that person before a magistrate or, “in petty cases”, release them within 24 hours. The previous statute, the Code of Criminal Procedure, 1973, had no equivalent provision. Detention for disobeying a police direction is a new addition in the BNSS.
The operative phrase is “under this Chapter”. Section 172 is present in Chapter XII, “Preventive Action of the Police”, which runs from Section 168 to Section 172. The duties it contains are: to prevent cognizable offences (Section 168), to pass on information of a design to commit one (Section 169), to arrest where that design is known and the offence cannot otherwise be prevented (Section 170) and to prevent injury to public property (Section 171). A direction under Section 172 must be given in fulfilment of one of these duties. It is not a free-standing power to order the public.
Section 163 orders are situated elsewhere. They are present in Chapter XI, titled Maintenance of Public Order and Tranquillity, and they are a magistrate’s orders, not a police officer’s directions. Parliament gave Chapter XI its own tools: dispersal of an assembly under Section 148 and prosecution for disobeying a duly promulgated order under Section 223 of the Bharatiya Nyaya Sanhita (BNS), 2023. What it does not provide is the power to detain a person in advance or a person who is hundreds of kilometres away who might breach the Section 163 order later on. To find that power in Section 172, one must read “this Chapter” as “this Sanhita”.
The State’s defence in Lal Mani v. State of Uttarakhand shows how the borrowing is being done. The counsel for the State argued that disobeying a Section 163 order is a cognizable offence that can be committed anywhere in the country, so the police actions were only to prevent an offence. On that reasoning, the prospect of breaching a Chapter XI order triggers the Chapter XII duty under Section 168 and Section 172 does the rest. The Uttarakhand High Court asked the question which unravels it: what lawful direction had the man disobeyed? The bench further added that any offence in Delhi fell within the jurisdiction of the Delhi Police, not the Uttarakhand Police. Its order of July 20 had already framed the first question as one of which provision of law authorised the detention at all.
The circularity is the main point. If the only offence being prevented is disobedience of the order, the only direction that is being enforced is “do not go”. Section 172 does not empower a police officer to issue that direction, detain anyone who breaches it and then point to the breach as the duty that justified the direction. The direction must originate from a duty that exists independently of it.
Chapter XII already contains a power to arrest in order to prevent a cognizable offence. Section 170 allows it only where the officer knows of “a design to commit” the offence and it seems that the offence “cannot be otherwise prevented”. Section 170 carries the old Section 151 of the CrPC without substantive change. In Rajender Singh Pathania v. State (NCT of Delhi) (2011), the Supreme Court held that an arrest under Section 151 of the CrPC is supportable only when its conditions are actually met. A student boarding a train to attend a protest at a designated site does not, on any ordinary reading, form a design to commit a cognizable offence. Neither is there anything to prove that his presence, if he defied the order on arrival, could not be dealt with there under Chapter XI.
The second feature of Section 172(2) makes the first worse. Article 22(2) of the Constitution requires that every person who is arrested and detained in custody be produced before a magistrate within 24 hours. Section 172(2) allows the officer to release the person without producing them before a magistrate in “petty cases” within the same 24 hours. “Petty cases” is not defined. In reality, the detention ends before any magistrate sees it and the detainee leaves without a record that a court can test.
Lal Mani shows the same. By the time the High Court took up the habeas corpus petition, the activist had been released and the State said that he had been handed over to his mother’s custody. However, the bench refused to close the matter. It called for the full record of the detention and, the next day, sought the response of the officer who had detained the activist. Most people who were taken off trains before October 10 had no one to file a petition for them within hours. For them, release within 24 hours is not a safeguard. It only ensures that no court ever asks the question.
Three consequences follow. First, a Section 172 detention needs an identifiable direction, given to that person and traceable to a duty under Sections 168 to 171. If no direction is on record, the detention cannot stand. That is the question the Uttarakhand High Court bench asked first.
Second, when the objective is to stop someone from committing an offence, the State must satisfy Section 170 and must not take a route around it.
Third, a Section 163 order must be enforced at the place and time it covers, through the remedies Chapter XI provides, not by intercepting travellers in another State.
Reports from several States point to the same pattern. Even if only some of them are true, they point to mass use of a provision that is just over two years old and almost none of it will reach a court. Section 172 gives the police the power to move a crowd along. It should not be read to empower them to tell a citizen to stay at home.
Aarush Giri is a second-year BBA LLB (Hons.) student at Chandigarh University UP, Lucknow.