Section 144 BNSS Prohibitory Orders and Protest Rights in India

Overview

Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 replaces the controversial Section 144 of the Code of Criminal Procedure (CrPC) 1973. This provision empowers authorities to issue orders in urgent cases to prevent obstruction, annoyance, or injury to any person lawfully employed, or to prevent danger to human life, health, safety, or a disturbance of public tranquility. The provision has significant implications for the fundamental right to peaceful assembly and protest, which is protected under Article 19(1)(a) and (b) of the Constitution of India.

The BNSS maintains the core structure of the CrPC provision but introduces important modifications, including a two-month outer limit for prohibitory orders and a requirement for reasoned orders. These changes aim to balance public order concerns with the protection of civil liberties. For organisers, journalists, and citizens, understanding the mechanics of Section 144 BNSS is crucial to navigate the legal landscape surrounding protests and public gatherings.

The governing law

The primary statutory framework governing prohibitory orders is Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, which replaces Section 144 of the Code of Criminal Procedure (CrPC) 1973. Section 163 BNSS empowers a District Magistrate, a Sub-Divisional Magistrate, or any other Executive Magistrate specially empowered by the State Government to issue orders in urgent cases to prevent certain harms.

The constitutional foundation for this provision lies in Article 19(1)(a) and (b) of the Constitution of India, which guarantee the freedom of speech and expression and the right to assemble peaceably and without arms. However, these rights are subject to reasonable restrictions under Article 19(2) and (3) on grounds of sovereignty and integrity of India, security of the state, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

Section 163 BNSS itself is subject to judicial review under Article 226 of the Constitution, allowing affected parties to challenge prohibitory orders before the High Courts. The Supreme Court has consistently held that while the power to issue prohibitory orders is necessary for maintaining public order, it must be exercised judiciously and not as a tool to suppress legitimate dissent.

Who can invoke this and when

Section 163 BNSS empowers specific authorities to issue prohibitory orders in urgent cases. The primary authorities include:

1. District Magistrate: The District Magistrate has the broadest authority to issue prohibitory orders within their jurisdiction.

2. Sub-Divisional Magistrate: An SDM can issue orders within their sub-division, provided they have been specially empowered by the State Government.

3. Executive Magistrate: Any other Executive Magistrate specially empowered by the State Government in this behalf.

The provision can be invoked when the authorities are satisfied that there is a likelihood of:

• Obstruction, annoyance, or injury to any person lawfully employed
• Danger to human life, health, safety, or a disturbance of public tranquility
• A breach of peace or a disturbance of public tranquility

The Supreme Court in the case of Madhu Limaye v. Sub-Divisional Magistrate (1970) held that the power to issue prohibitory orders must be exercised with caution and only when there is a clear and present danger to public order. The Court emphasized that the mere apprehension of a disturbance is not sufficient to justify the imposition of prohibitory orders.

Step by step procedure

The procedure for issuing and challenging prohibitory orders under Section 163 BNSS involves several steps:

1. Assessment of situation: The concerned authority assesses the situation and determines whether there is a need to issue prohibitory orders.

2. Issuance of order: If satisfied, the authority issues a written order specifying the reasons for the order, the area to which it applies, and the duration.

3. Publication of order: The order must be published in the Official Gazette and, if time permits, by public announcement in the locality.

4. Service of order: The order must be served on the affected parties, though this requirement may be dispensed with in urgent cases.

5. Challenge to order: Affected parties can challenge the order before the appropriate court within the prescribed time.

6. Review by higher authorities: The order can be reviewed by the State Government or the District Magistrate.

7. Modification or revocation: The issuing authority may modify or revoke the order if circumstances change.

The procedure for challenging a prohibitory order typically involves filing a writ petition under Article 226 of the Constitution before the High Court. The petition must be accompanied by the original order and any supporting documents. The High Court may stay the operation of the order pending disposal of the petition.

Documents and evidence required

For authorities issuing prohibitory orders:

• Written order specifying reasons, area, and duration
• Intelligence reports or other material indicating likelihood of disturbance
• Previous orders or records of similar incidents in the area
• Any relevant police reports or assessments

For affected parties challenging prohibitory orders:

• Copy of the prohibitory order
• Evidence of peaceful assembly or protest activities
• Affidavits stating the impact of the order on fundamental rights
• Previous instances of peaceful gatherings in the same area
• Any relevant judgments or precedents supporting the challenge

The Supreme Court in the case of Anuradha Bhasin v. Union of India (2020) emphasized that authorities must provide reasons for issuing prohibitory orders, and affected parties must be given an opportunity to be heard before the order is made absolute.

Timelines, limitation and fees

The BNSS introduces important timelines for prohibitory orders:

1. Maximum duration: A prohibitory order cannot exceed two months from the date of issuance.

2. Extension: The order can be extended for a further period not exceeding two months if the authority is satisfied that the circumstances warrant such extension.

3. Review: The State Government must review all prohibitory orders issued by subordinate authorities within 30 days of receipt.

4. Challenge period: Affected parties must challenge prohibitory orders within 30 days of receipt or publication.

5. Court fees: The court fee for filing a writ petition challenging a prohibitory order varies by High Court but typically ranges from Rs. 500 to Rs. 2,000, depending on the value of the subject matter.

The limitation period for filing a writ petition under Article 226 is 30 days from the date of the order or from the date when the cause of action arises, whichever is later. However, the High Court has the discretion to condone delay if sufficient cause is shown.

Court Fee Structure for Challenging Prohibitory Orders

Court	Fee Range (Rs.)	Basis of Fee Calculation
High Court	500 - 2,000	Based on the value of the subject matter
District Court	200 - 1,000	Based on the value of the subject matter
Supreme Court	2,000 - 5,000	Based on the value of the subject matter

What the courts have held

The judiciary has consistently emphasized the need to balance public order concerns with the protection of fundamental rights. Some key judicial pronouncements include:

1. Supreme Court in Romesh Thappar v. State of Madras (1950): The Court held that restrictions on the freedom of speech and expression must be reasonable and not arbitrary.

2. Supreme Court in Bennett Coleman & Co. v. Union of India (1973): The Court emphasized that the right to freedom of speech and expression includes the right to circulate ideas and opinions.

3. Supreme Court in S. Rangarajan v. P. Jagjivan Ram (1989): The Court held that the test of "clear and present danger" must be applied to determine whether restrictions on free speech are justified.

4. Supreme Court in Anuradha Bhasin v. Union of India (2020): The Court held that the freedom of speech and expression and the right to assemble peacefully are fundamental rights, and any restrictions must be reasonable and proportionate.

5. Delhi High Court in Delhi Police v. Federation of Indian Chambers of Commerce & Industry (2018): The Court held that prohibitory orders must be specific and not vague or overbroad.

6. Bombay High Court in Saket v. State of Maharashtra (2021): The Court emphasized that the power to issue prohibitory orders must be exercised with caution and not as a tool to suppress legitimate dissent.

Common mistakes and how to avoid them

Common mistakes made by authorities when issuing prohibitory orders:

1. Vague orders: Authorities often issue orders that are overly broad or vague, failing to specify the exact nature of the prohibited activities.

2. Lack of reasons: Failing to provide adequate reasons for issuing the order, which is a statutory requirement under Section 163 BNSS.

3. Excessive duration: Issuing orders for longer than the permissible two-month period without proper justification.

4. Failure to review: Not reviewing orders within the prescribed time frame, leading to their automatic lapse.

5. Non-publication: Failing to publish orders in the Official Gazette or through public announcements.

Common mistakes made by affected parties when challenging prohibitory orders:

1. Delay in filing: Not filing challenges within the prescribed time limit, leading to dismissal on grounds of laches.

2. Inadequate grounds: Failing to provide sufficient grounds for challenging the order, such as violation of fundamental rights.

3. Lack of evidence: Not providing adequate evidence to support the challenge, such as proof of peaceful assembly.

4. Improper service: Not properly serving the petition on the concerned authorities.

5. Failure to seek interim relief: Not seeking interim relief to stay the operation of the order pending disposal of the petition.

Practical checklist

For organisers planning a protest:

• Check if any prohibitory orders are in force in the proposed area
• Verify the duration and scope of any existing orders
• File applications for permission to hold the protest well in advance
• Prepare documentation to demonstrate the peaceful nature of the protest
• Identify legal counsel to challenge any prohibitory orders if necessary
• Plan alternative routes or venues if prohibitory orders are imposed

For journalists covering protests:

• Verify the legal status of the protest area
• Check for any prohibitory orders that might affect reporting
• Carry proper identification and credentials
• Be aware of the limitations imposed by any prohibitory orders
• Document any instances of excessive use of force by authorities
• Seek legal advice if facing arrest or detention

For citizens affected by prohibitory orders:

• Understand the specific restrictions imposed by the order
• Verify the duration and geographical scope of the order
• Seek legal advice if planning to challenge the order
• Document any instances of harassment or intimidation by authorities
• Report any violations of the order by authorities to the appropriate authorities
• Stay informed about any changes or extensions to the order

Frequently asked questions

What is the maximum duration of a prohibitory order under Section 163 BNSS?

A prohibitory order under Section 163 BNSS cannot exceed two months from the date of issuance. The order can be extended for a further period not exceeding two months if the authority is satisfied that the circumstances warrant such extension.

Can a prohibitory order be issued without providing reasons?

No, Section 163 BNSS requires that every prohibitory order must be in writing and must state the material facts and the reasons for making the order. The Supreme Court has consistently held that the requirement to provide reasons is a constitutional requirement under Article 14 of the Constitution.

What is the procedure for challenging a prohibitory order?

Affected parties can challenge a prohibitory order by filing a writ petition under Article 226 of the Constitution before the High Court. The petition must be accompanied by the original order and any supporting documents. The High Court may stay the operation of the order pending disposal of the petition.

Can a prohibitory order be issued against a specific individual?

Yes, a prohibitory order can be issued against a specific individual if the authority is satisfied that the individual is likely to commit a breach of peace. However, the order must be specific and must state the reasons for targeting the individual.

What happens if a prohibitory order is violated?

Violation of a prohibitory order is punishable under Section 188 of the Indian Penal Code, which provides for imprisonment up to one month, a fine of up to Rs. 200, or both. However, the punishment may vary depending on the nature and severity of the violation.

Can a prohibitory order be issued during a public emergency?

Yes, during a public emergency, the authorities can issue prohibitory orders with prior approval from the State Government. However, such orders must still comply with the requirements of Section 163 BNSS, including the provision of reasons and the limitation on duration.

Key takeaways

• Section 163 BNSS replaces Section 144 CrPC and empowers authorities to issue prohibitory orders in urgent cases to prevent obstruction, annoyance, or injury to any person lawfully employed, or to prevent danger to human life, health, safety, or a disturbance of public tranquility.
• The maximum duration of a prohibitory order is two months, which can be extended for a further period not exceeding two months if the authority is satisfied that the circumstances warrant such extension.
• Every prohibitory order must be in writing and must state the material facts and the reasons for making the order, as required by Section 163 BNSS and upheld by the Supreme Court.
• Affected parties can challenge prohibitory orders by filing a writ petition under Article 226 of the Constitution before the High Court, and the High Court may stay the operation of the order pending disposal of the petition.
• The power to issue prohibitory orders must be exercised judiciously and not as a tool to suppress legitimate dissent, as emphasized by the Supreme Court in various judgments.
• Violation of a prohibitory order is punishable under Section 188 of the Indian Penal Code, which provides for imprisonment up to one month, a fine of up to Rs. 200, or both.
• The judiciary has consistently emphasized the need to balance public order concerns with the protection of fundamental rights, and any restrictions on the freedom of speech and expression and the right to assemble peacefully must be reasonable and proportionate.

Disclaimer

This article is published for general information on Indian law and does not constitute legal advice. Statutory provisions, rules and judicial positions change, and the position can differ from state to state. Consult a qualified advocate about your specific facts before acting.