What is Section 163 BNSS (formerly 144 CrPC)? When can prohibitory orders be imposed?

Section 163 BNSS is typically invoked in several categories of situations. Communal tensions: religious festivals, communal incidents, potential riots. Political situations: elections, protests, sensitive political events. Law and order disturbances: strikes, bandhs, mass gatherings. Public health emergencies: COVID-19 lockdowns extensively used Section 144 CrPC (now 163 BNSS).

Festivals and large gatherings — Diwali (cracker restrictions), Holi, Eid, Christmas, religious processions and cultural festivals routinely trigger it. Election Commission directives use it around polling stations. Examinations sometimes see it to prevent malpractice. Around sensitive locations — religious places, courts, police stations and vital installations — it is invoked. Educational institutions in tense atmosphere use it too. Mass protests such as the farmers' protests, CAA protests and specific PILs have all seen Section 163 orders.

Cyber-related restrictions overlap with Section 163. Internet shutdowns under the Telecommunications Act are often combined with Section 163. Mass-messaging restrictions. Anuradha Bhasin v. Union of India, 2020 held restrictions must be proportionate. Permission for specific events during Section 163 periods — marriages, processions, large gatherings — requires specific permission.

Curfew vs Section 163: curfew is total ban on movement, Section 163 is specific restrictions; curfew typically operates under Police Acts while Section 163 is the broader instrument. Frequency of use: routine in many districts; some districts have continuous Section 163 orders — the Supreme Court has been critical. Madhu Limaye v. Sub-Divisional Magistrate, 1971 demanded strict scrutiny. Anuradha Bhasin required periodic review. State-specific patterns: J&K extensively used; UP frequent; Maharashtra during political tensions; Karnataka during Cauvery disputes.

A written order with reasons is mandatory. Specific content must include the persons or class addressed, the act to be done or abstained, duration, reasons and area covered. Ex parte orders in emergency without prior hearing are permitted. Right to representation: a person aggrieved can move the issuing authority for variation; the authority may modify, rescind or maintain, and a hearing is a right.

Duration limits: 2 months from issue; extension up to 6 months by the State Government; periodic review is required per Anuradha Bhasin; specific orders may end earlier. Geographical scope: a specific area must be defined; not vague or overbroad. Class of persons must be defined clearly; not arbitrary.

Supreme Court rulings limiting use. Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, 1971 demanded strict scrutiny. Acharya Jagdishwarananda Avadhuta v. Commissioner of Police, Calcutta tested validity of orders. Anuradha Bhasin v. Union of India, 2020 on J&K internet shutdowns imposed the proportionality test and required publication of orders.

Publication of orders — per Anuradha Bhasin, orders must be published to allow challenge and ensure transparency. Constitutional challenges rest on Article 19(1)(a) (freedom of speech), Article 19(1)(b) (peaceful assembly), Article 19(1)(d) (movement) and Article 21 (life and liberty) — with reasonable restrictions under 19(2)-(6).

Writ petition challenges go to the High Court under Article 226; Supreme Court under Article 32 is rare for Section 163; stay of order is possible; final disposal follows. Proportionality test: is a less restrictive alternative available? Necessary in a democratic society? Specific evidence of threat? Time-bound? Limits on use: cannot be routine, cannot be permanent, cannot be vague, cannot be retrospective, cannot be punitive.

Specific contexts. Election Commission pre-election guidelines for prohibitory orders. Sports or cultural events with specific permissions. Religious processions with time-bound permits. Civil rights protests get heightened scrutiny. Penal consequences: violation is Section 223 BNS with strict liability; defence is order invalid, no notice or mistake of fact; bail typically; often used to disperse protests.

Immediate steps: obtain a copy of the order, verify publication, note specific restrictions, identify reasons cited, and assess proportionality. Representation to the issuing authority (Magistrate): show changed circumstances, disproportionate impact and request modification. State Government appeal is limited — mainly for extensions and modifications.

High Court writ petition under Article 226 can quash an invalid order, stay execution, direct revision. Filing fee is modest and lawyer essential. Grounds for challenge: vague or overbroad; disproportionate — less restrictive alternatives; without reasons; without authority (issued by wrong officer); retrospective; punitive vs preventive; continuous (not periodic review); targeted at specific group (discriminatory); violates specific fundamental rights.

Specific permissions during Section 163: marriages need permission from DM or SDM; religious gatherings run under controlled permits; medical or emergency movement is usually exempt; essential services are exempt; public transport is case-specific. Compliance strategies: read the order carefully, note exemptions, plan alternative routes or methods, keep documentation, maintain peaceful behaviour.

Common workarounds (lawful): online meetings instead of physical; smaller groups (under threshold); smaller decoration or processions; alternative routes or timings. If apprehended: do not resist arrest, request access to a lawyer, exercise right to silence, document any harassment, bail at police station or magistrate — Section 223 BNS is bailable.

Habeas corpus if unlawfully detained. Compensation for wrongful detention through civil suit, constitutional remedy and compensation jurisprudence. NHRC or SHRC complaint for pattern of violations yields compensation orders. International remedies: UN Special Rapporteurs; international human rights mechanisms; civil society engagement.

Strategic considerations: test cases for systemic challenges; multiple petitions for impact; public interest litigations; civil society coordination. Free legal aid: DLSA, NALSA, civil society organisations, lawyers' collectives.

Article 19(1)(b) guarantees the right to assemble peaceably and without arms. Restrictions under Article 19(3): sovereignty, integrity, public order, decency. Procedure for protests: prior notice to police is generally required (3-14 days) with notification of route, venue, time and expected attendance; permission may be conditional; state Police Acts vary.

Permission criteria: peaceful intent, no violence anticipated, public safety considerations, available infrastructure, bandobast costs. Designated protest sites: many cities have designated sites (Jantar Mantar Delhi, Azad Maidan Mumbai); other locations may be restricted. Hunger strikes or fasts: allowed subject to medical monitoring; force-feeding is controversial. Sloganeering and processions are allowed if peaceful, subject to noise pollution rules. Symbolic protests such as black-ribbon and candle marches are generally allowed.

Strike actions: trade unions have right to strike (with notice); bandhs' legality is debatable; essential services restricted; government employees limited.

Recent protest movements and legal responses: Farmers' protests 2020-21 — major movement with Supreme Court intervention. CAA/NRC protests 2019-20 — multiple FIRs and police violence allegations. JNU protests with sedition charges. Shaheen Bagh continuous sit-in protest. Anti-rape protests 2012.

Police powers: disperse unlawful assembly (Sections 192-193 BNS); use of force in proportion; Sections 197-200 BNSS on public order; lathi charge is controversial; tear gas and water cannons must be proportionate; live ammunition is exceptional. Detention and arrest: preventive detention under NSA; UAPA in serious cases; BNSS provisions; bail rights; habeas corpus.

Police accountability: NHRC investigates excessive force; magisterial inquiries; civil suits for compensation; criminal cases against police. Right to publicity and media coverage is generally protected; media may report on protests. Recent Supreme Court rulings: Amit Sahni v. Commissioner of Police, 2020 (Shaheen Bagh) — right to protest exists but not at all costs; balance between right to protest and right to free movement of others; designated areas suggested; time-bound limits. Civil disobedience follows the Gandhian tradition; court rulings require it to be peaceful; constitutional protection is limited; penal consequences are accepted by practitioner.

Internet shutdowns operate under the Telecommunications Act, 2023 (replacing the Indian Telegraph Act), or under Section 163 BNSS for telecom-related orders. India has among the world's highest number of internet shutdowns; J&K, Rajasthan, Manipur and UP have been frequent. The Telecommunications Suspension Rules, 2017 govern the process, with a Review Committee for periodic review. Anuradha Bhasin v. Union of India, 2020 (J&K case) held that internet shutdown is a reasonable restriction on free speech under Article 19(1)(a) but must be proportionate, subject to periodic review, with publication of orders mandatory, and suspension must be temporary.

Mobile and SMS suspension follows a similar framework and often accompanies internet shutdowns. Social media restrictions run under Section 69A IT Act and IT Rules 2021 — the government can order blocking; Twitter, Facebook and others have faced this.

Surveillance: Telegraph Act (now Telecommunications Act) governs interception; IT Act Section 69 covers decryption; NATGRID, CMS and NETRA are mass surveillance systems; the Pegasus controversy of 2021 raised alarm; Aadhaar concerns under Puttaswamy continue.

Right to privacy (K.S. Puttaswamy, 2017) is fundamental and limits surveillance through proportionality test and procedural safeguards. DPDPA 2023 covers personal data protection with limited limits on state surveillance; government carve-outs remain; scope concerns persist.

Wire-tapping under Section 5(2) Indian Telegraph Act (now under Telecom Act) requires authorisation procedure with review by the Cabinet Secretary. PUCL v. Union of India laid procedural safeguards. Press freedom under Article 19(1)(a) is monitored by the Press Council of India; journalists' safety is a concern; UAPA cases against journalists and sedition cases continue.

Civil liberties during emergency-like situations: COVID-19 lockdowns; bandh or curfew; communal incidents; national security operations. NHRC interventions cover custodial violence, police excesses and civilian deaths in operations. Press freedom indices show India's rank declining with concerns from the international community. Specific civil liberty issues include sedition (Section 152 BNS, replacing IPC 124A — broader and vaguer); UAPA with harsh bail provisions; NSA preventive detention; criminal defamation continues; contempt of court.

International concerns: UN Special Rapporteurs; Freedom House reports; civil society organisations. Resources: PUCL (People's Union for Civil Liberties); Internet Freedom Foundation; Software Freedom Law Center (SFLC.in); Digital Empowerment Foundation; NHRC and SHRCs; bar associations.