I. Introduction
Free speech is necessary for the discovery of truth. But what constitutes truth, a sceptic may ask. The constitutional theory, as explained in Abrams v. United States[2], is that the best test of truth is the ability of an idea to gain acceptance in the competition of the marketplace of ideas. Democracy proceeds upon the assumption that people govern themselves, for which the free exchange of ideas is indispensable. Freedom of expression also prevents the entrenchment of power, since democracy presupposes that governmental authority will pass into different hands over time. When this ceases to happen, democracy itself ceases to function, as observed by D.D. Basu in Commentary on the Constitution of India, 9th ed., p. 3650.
The freedom to express an opinion would, however, remain incomplete without the corresponding freedom to assemble and communicate it collectively. The very idea of a republican form of government implies the right of citizens to meet peacefully and deliberate upon public affairs. It follows, therefore, that freedom of assembly is an adjunct to, and equally essential as, freedom of expression in a democratic system of government.
The recent restrictions imposed upon public assemblies at Jantar Mantar, New Delhi, however, have once again brought into focus the scope and exercise of preventive powers under Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), corresponding to Section 144 of the erstwhile Code of Criminal Procedure, 1973. A report published in The Hindu on 14 October 2026 raised questions concerning the non-disclosure of prohibitory orders purportedly operating in different parts of New Delhi. The matter subsequently reached the Supreme Court in Samriddhi Das v. Union of India[3], wherein, on 15 October 2026, the Court directed the Delhi Police to place on record the prohibitory orders issued under Section 163 BNSS during the preceding two weeks.
An empirical study titled, “The Use and Misuse of Section 144 CrPC (2023)”, conducted by Vrinda Bhandari, Abhinav Sekhri, Natasha Maheshwari and Madhav Aggarwal, examined approximately 5,400 orders issued in Delhi during 2021. Significantly, 25.6% concerned installation of CCTV cameras, 43% related to business regulation and record-keeping, while only 1.5% imposed blanket restrictions on unlawful assembly. The study also revealed extensive reissuance of orders upon expiry of their statutory duration. Although these figures do not establish the illegality of individual orders, they raise the question whether a power intended to meet emergencies is increasingly being employed for routine administrative regulation.
Before delving in to the analysis on Section 163 BNSS , one must note that in relation to Delhi, apart from Section 163 BNSS, the Delhi Police Act, 1978, itself confers extensive powers upon the police to regulate public assemblies and processions. Sections 28 and 29 provide for regulation of traffic, maintenance of order in public places and issuance of necessary directions, while Section 31 empowers the police to prevent disorder at public meetings. Section 36 further provides for reservation of streets and erection of barriers. In In Re: Ramlila Maidan Incident[4], the Supreme Court also referred to Delhi Police Standing Order No. 309, regulating permission for processions and rallies. Thus, the police already possess statutory powers for regulating public gatherings. The question, therefore, arises as to the circumstances in which recourse to the extraordinary preventive power under Section 163 BNSS becomes necessary.
Section 163 of BNSS confers an extraordinary preventive power upon the executive to meet situations requiring immediate prevention or speedy remedy. Its exercise, however, directly affects fundamental freedoms and must remain within the statutory and constitutional limitations. These developments necessitate an examination of the scope, safeguards and judicial interpretation of Section 163, particularly the distinction between its legitimate exercise and misuse.
II. Constitutional Foundation Of The Right To Peaceful Assembly And Protest
Freedom of speech, assembly, and protest are dependent upon the power of the Constitutional Government to survive. The fundamental aspect is the right which is conferred upon the affected people in a democracy to voice their grievances. Dissenters may be in minority. They have a right to express their views. A particular cause which, in the first instance, may appear to be insignificant or irrelevant may gain momentum and acceptability when it is duly voiced and debated. That is the reason that this Court has always protected the valuable right of peaceful and orderly demonstrations and protests.
As Ivor Jennings, in his book Law and the Constitution, 1971, very effectively brings out, there are some rights which are inherent in a system of Government by opinions. Thus, a system implies the right to create opinion and to organize it with a view to influence the conduct of Government. There could be no democratic system if minority opinions cannot be expressed or of the people cannot meet together to disassociate from mutual support and for the propagation of their common ideals. The temptation to interfere with this right on the part of those entrusted with the State power is, however, great. In the absence of proper safeguards, this can easily be eroded.
The right of public meeting or of peaceful protest is not specifically guaranteed by the Constitution but follows from the right of assembly and right of speech and expression under Article 19 (1) (b) and Article 19 (1) (a) of the Constitution of India. Our Constitution guarantees the above rights subject to three limitations:
(a) The assembly must be peaceful;
(b) It must be unarmed;
(c) The State may impose any reasonable restriction as may be deemed necessary in the interest if public order; or of the sovereignty or integrity of India.
In Himat Lal K. Shah v. Commissioner of Police[5], the Supreme Court recognised public meetings on streets as part of national life. While the State may regulate their time and manner through licensing, such regulation must be governed by definite legal standards and cannot confer unguided discretionary powers upon the authorities. Vesting of unregulated discretionary power in a licensing authority has always been considered bad. (Per MATHEW, J.).
III. Nature, Scope And Limitations Of Section 163 BNSS
Section 163 BNSS substantially reproduces Section 144 CrPC without materially altering its scope. It empowers specified Executive Magistrates to take immediate preventive measures where sufficient grounds exist to apprehend danger to life, health, safety or public tranquillity, including riot or affray. The power is extraordinary and intended to meet emergent situations rather than ordinary administrative exigencies.
In Babulal Parate v. State of Maharashtra[6], the Constitution Bench upheld the validity of Section 144 CrPC, observing that the power is intended to prevent disorder, obstruction, and danger to public peace. Although it restricts fundamental freedoms, its exercise is conditioned by the existence of an emergency and the Magistrate’s obligation to act judicially. The power, therefore, cannot be regarded as unlimited or untrammelled.
Reiterating these principles, the Supreme Court in In Re: Ramlila Maidan Incident, (2012) 5 SCC 1, held that Section 144 is an extraordinary preventive power exercisable only in an emergent situation requiring immediate intervention. The apprehended danger must be real, serious, and supported by material available to the authority, rather than resting upon mere speculation.
The Court further identified four essential requirements for exercising the power: (i) it must be exercised by a competent executive authority; (ii) sufficient grounds for proceeding must exist; (iii) immediate prevention or speedy remedy must be desirable; and (iv) the order must be in writing, stating the material facts, and be duly served or notified. Of these requirements, the existence of sufficient grounds and the necessity for immediate preventive action are of particular significance. The satisfaction of the authority must be reasonable, bona fide and founded upon relevant material. The restraint imposed must be minimal and must not exceed the exigencies of the situation, either in nature or duration. Above all, the apprehended threat to public peace and tranquillity must be real and not imaginary or based upon a mere possibility. The power, though exercisable in anticipation of danger, cannot rest upon speculative apprehensions.
It is relevant to note that the Hon’ble Supreme Court in Anuradha Bhasin v. Union of India[7], the Hon’ble Supreme Court provided a rationale for publication of the order passed under Sec. 144 of CrPC in the following words:
“136. One of the important criteria to test the reasonableness of such a measure is to see if the aggrieved person has the right to make a representation against such a restriction. It is a fundamental principle of law that no party can be deprived of his liberty without being afforded a fair, adequate and reasonable opportunity of hearing. Therefore, in a situation where the order is silent on the material facts, the person aggrieved cannot effectively challenge the same. Resultantly, there exists no effective mechanism to judicially review the same. [See State of Bihar v. Kamla Kant Misra, (1969) 3 SCC 337]. In light of the same, it is imperative for the State to make such orders public so as to make the right available under Section 144(5), Cr.P.C. a practical reality.”
Recently, in Dr. Randall Sequeira v. Collector and District Magistrate[8], the Court quashed a two-month prohibition on entering an entire district imposed in connection with a proposed one-day protest. It held that preventive restrictions must satisfy the test of proportionality and that less restrictive alternatives ought to be considered. The Court also emphasised the necessity of communicating the order and its grounds to the affected person.
Similarly, in Sri Adrushya Kadeshwara Swamiji v. Deputy Commissioner[9], the Court set aside a two-month prohibitory order concerning a three-day programme, observing that the statutory maximum duration does not dispense with the requirement of an actual emergency or justify a disproportionate restriction.
IV. Conclusion
There is no doubt that the Constitution maintains a balance between fundamental rights under Part III, Directive Principles under Part IV and fundamental duties under Part IVA. While Articles 19(1)(a) and 19(1)(b) protect freedom of expression and peaceful assembly, Article 38 enjoins the State to promote a just social order, and Article 51A requires citizens to respect constitutional values, safeguard public property and abjure violence.
The power to maintain public order is essential for the effective functioning of the State. Section 163 BNSS, therefore, empowers the executive to take immediate preventive measures to protect life, property and public tranquillity. However, the mere apprehension of inconvenience or opposition cannot justify its exercise.
As the judicial pronouncements demonstrate, the power is neither absolute nor unrestricted. Its exercise must rest upon sufficient material establishing an imminent danger, and the restrictions imposed must be reasonable in their nature, duration and territorial extent. Its frequent use for matters capable of being addressed through ordinary administrative measures raises concerns regarding the misuse of this extraordinary power.
The recent controversy in Delhi also brings into focus an elementary but important safeguard. A citizen upon whom a restriction is imposed must have access to the order and the grounds upon which it rests. Otherwise, the right to seek its rescission or challenge its legality specifically under Section 163 (5) becomes more theoretical than real. The Supreme Court’s recent direction in Samriddhi Das (Supra) requiring the Delhi Police to produce the prohibitory orders assumes significance in this context; however, the legality of the particular restrictions remains a matter for judicial determination.
Ultimately, the maintenance of public order and the protection of fundamental freedoms are not inconsistent objectives. The Constitution requires the State to secure both. The real concern, therefore, is not the existence of Section 163, but whether the safeguards which justify the conferment of such exceptional power are faithfully observed in its actual exercise. A power intended to preserve public tranquillity must not, through its routine or indiscriminate use, become an instrument for discouraging the peaceful expression of dissent.
[1] Advocate on Record.
[2] 250 US 616 (1919)
[3] filed as Diary No. 64055 of 2026
[4] (2012) 5 SCC 1
[5] (1973) 1 SCC 227
[6] AIR 1961 SC 884
[7] AIR 2020 SC 1308
[8] W.P.(C) No. 16753/2025 (Orissa High Court, 18 July 2025)
[9] W.P. No. 108686/2025 (Karnataka High Court, 25 November 2025)