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Delhi protests: Supreme Court declines to entertain challenge to Section 163 BNSS

The Court, however, will examine a challenge to individual prohibitory orders and a challenge to Section 172 BNSS, which gives the police the power to detain people who obstruct the performance of police duties.

Debayan Roy

The Supreme Court on Thursday declined to entertain a challenge to the constitutional validity of Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), which empowers executive magistrates to issue prohibitory orders to restrict public gatherings in the interest of preventing danger or maintaining peace.

The Court, however, has agreed to examine various prohibitory orders issued under the said provision in connection with the recent Delhi protests.

The Court will also examine a challenge to the validity of Section 172 of the BNSS, which requires persons to comply with lawful directions issued by police officers and gives the police the power to detain those who defy such directions and obstruct police duties.

A Bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi yesterday sought the response from the Central government, the Delhi government, the Delhi Commissioner of Police and other authorities on a plea challenging this provision.

CJI Surya Kant and Justice Joymalya Bagchi

During the hearing, Senior Advocate Kapil Sibal, representing a petitioner, had questioned the exercise of powers under the BNSS provisions in the context of the restrictions imposed during the Delhi protests.

A challenge was raised to the constitutional validity of Section 163, BNSS.

Section 163 BNSS replaced Section 144 of the erstwhile Code of Criminal Procedure (CrPC). It empowers designated magistrates to issue urgent orders to prevent danger to human life, public safety, disturbances of public tranquillity or other specified threats. Such orders can restrict assemblies, processions and other activities.

The Court, however, said it would not go into the validity of Section 163 BNSS, since it had earlier already upheld the corresponding provision in the CrPC (Section 144).

"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," the Court said.

The Court proceeded to issue notice on the plea challenging Section 172 of the BNSS, which has been filed by one Samriddhi Das.

"Issue notice, returnable on 19.11.2026, only on the limited issue pertaining to the constitutionality of Section 172 BNSS," the Court said, before adjourning the matter till November 19.

In a connected case, the Court has directed the Union government to place on record the prohibitory orders issued under Section 163 of the BNSS in Delhi. These petitions, which challenge specific orders issued under Section 163 BNSS, have also been adjourned to November 19.

The Court was hearing a batch of petitions arising from the recent Delhi protests against the Special Intensive Revision (SIR) of electoral rolls and Chief Election Commissioner (CEC) Gynaesh Kumar.

The petitions raise a range of issues from alleged police excesses, restrictions on public movement and the exercise of police powers.

In orders passed yesterday, the Court fixed October 27 as the next date for hearing petitions concerning the SIR exercise, including the one filed by Congress leader Rahul Gandhi and other opposition political leaders.

A batch of petitions concerning the Delhi protests, police action, the denotification of Jantar Mantar as a protest site and connected issues will be heard on November 3.

A petition raising concerns about sexual harassment of women journalists covering the Delhi protests will be heard on November 5.

The Bench also directed nodal counsel to categorise overlapping petitions by October 28. to facilitate the filing of separate, comprehensive counter-affidavits.

[Read Order]

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