The Supreme Court has declined to entertain a constitutional challenge to Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the provision that allows authorities to impose restrictions on public gatherings to prevent potential threats to public order. However, the Court will examine specific prohibitory orders issued during the recent Delhi protests and a separate challenge to the police powers granted under Section 172 of the law.
A Bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi is considering a series of petitions arising from demonstrations against the Special Intensive Revision (SIR) of electoral rolls and Chief Election Commissioner Gyanesh Kumar.
During the hearing, Senior Advocate Kapil Sibal questioned the use of BNSS provisions to impose restrictions in connection with the protests. The challenge also questioned the constitutional validity of Section 163.
The Bench, however, declined to revisit the provision’s validity, pointing to an earlier Supreme Court ruling that upheld the corresponding Section 144 of the Code of Criminal Procedure (CrPC).
“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 observed.
Section 163 BNSS empowers designated executive magistrates to issue urgent orders where intervention is considered necessary to prevent danger to human life, public safety, disturbances of public tranquillity or other specified threats. The provision replaced Section 144 of the former CrPC and can be used to restrict assemblies, processions and certain public activities.
Section 172 BNSS challenge to be examined
While declining to reopen the broader constitutional question surrounding Section 163, the Court has agreed to examine a separate challenge to Section 172 BNSS, which deals with compliance with lawful police directions.
The provision requires people to follow lawful directions issued by police officers and permits the police to detain individuals who resist such directions or obstruct the discharge of police duties.
The petition, filed by Samriddhi Das, questions the constitutional validity of the provision. The Bench issued notice to the Central government, the Delhi government, the Delhi Police Commissioner and other concerned authorities.
“ issue notice, returnable on 19.11.2026, only on the limited issue pertaining to the constitutionality of Section 172 BNSS,” the Court said, fixing November 19 for the next hearing.
Delhi protest restrictions under scrutiny
In connected proceedings, the Court has directed the Union government to produce the prohibitory orders issued under Section 163 BNSS in Delhi. Petitions challenging individual orders will also be taken up on November 19.
The wider batch of cases raises concerns over alleged police excesses, restrictions on public movement, the exercise of police powers and the removal of Jantar Mantar’s designation as a protest site.
The Court has scheduled November 3 to hear petitions concerning the Delhi demonstrations, police action and related issues. A separate petition concerning allegations of sexual harassment of women journalists covering the protests is listed for November 5.
Meanwhile, petitions challenging the SIR exercise, including one filed by Congress leader Rahul Gandhi and other opposition political leaders, are scheduled for October 27.
The Bench has also directed nodal counsel to classify overlapping petitions by October 28 so that separate, comprehensive counter-affidavits can be filed.
The proceedings will therefore continue on two distinct fronts: the validity of specific restrictions imposed during the protests and the constitutional limits of police powers under Section 172 BNSS.