The Supreme Court has declined to entertain a challenge to the constitutional validity of Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which empowers executive magistrates to issue urgent prohibitory orders to prevent potential threats to public peace and safety. However, the Court has agreed to examine a separate challenge to Section 172 of the legislation, which governs compliance with lawful police directions.
A Bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi declined to reconsider the validity of Section 163, noting that the corresponding provision under the erstwhile Code of Criminal Procedure (CrPC), Section 144, had already been upheld by the Supreme Court.
“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 Bench observed.
The proceedings arise against the backdrop of recent protests in Delhi against Chief Election Commissioner Gyanesh Kumar over alleged irregularities in the Special Intensive Revision (SIR) of electoral rolls. The demonstrations prompted legal challenges concerning prohibitory orders, restrictions on movement and alleged police action against protesters.
While declining to entertain the broader constitutional challenge to Section 163, the Court issued notice on a petition filed by Samriddhi Das questioning the validity of Section 172 BNSS. The respondents include the Union government, the Delhi government, the Delhi Police Commissioner and other concerned authorities. The matter has been listed for further hearing on November 19, 2026.
Section 172 requires individuals to comply with lawful directions issued by police officers in the discharge of their duties. It also provides for police intervention against persons who allegedly disobey such directions or obstruct police functions. The challenge raises questions about the scope and constitutional limits of these powers.
During the hearing, Senior Advocate Kapil Sibal, appearing for a petitioner, questioned the exercise of statutory powers in the context of restrictions imposed during the Delhi protests. The Bench, however, distinguished the challenge to Section 172 from the broader plea seeking to invalidate Section 163.
Section 163 BNSS empowers executive magistrates to issue urgent orders where immediate prevention or speedy remedy is considered necessary to avert danger, public disturbance or other forms of threatened harm. It replaces Section 144 CrPC, which has historically been invoked to regulate assemblies and impose restrictions in situations involving apprehended threats to public order.
The Supreme Court’s decision leaves the existing statutory framework under Section 163 undisturbed at this stage, while allowing the separate challenge to Section 172 to proceed. The Court has not yet adjudicated the merits of the latter challenge.
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