Section 163 BNSS Prohibitory Orders and Protest Rights in India

Overview

Section 163 of the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) replaced Section 144 of the Criminal Procedure Code on July 1, 2024. This provision empowers Executive Magistrates to issue prohibitory orders to prevent threats to public order, safety, and tranquility. The power to restrict assemblies, processions, and carrying of weapons under this section must be exercised with due regard to constitutional freedoms. Recent judicial pronouncements emphasize that prohibitory orders cannot become a tool for routine governance and must satisfy the proportionality test established by the Supreme Court.

The governing law

Section 163 BNSS provides that an Executive Magistrate may issue an order in urgent cases of nuisance or apprehended danger to human life, health, safety, or tranquility. The order may prohibit the assembly of four or more persons, the carrying of weapons, or any other activity deemed threatening to public order. Such orders must specify the time period and geographical area to which they apply. The Supreme Court in Madhu Limaye v. State of Maharashtra (1971) established that prohibitory orders must be based on material facts and cannot be issued merely because authorities anticipate trouble. The Court in Anuradha Bhasin v. Union of India (2020) further mandated that any restriction on the right to protest must be reasonable, proportionate, and subject to judicial review. Article 19(1)(b) of the Constitution guarantees the right to assemble peacefully and without arms, which can be restricted only in the interests of public order under Article 19(3).

Who can invoke this and when

Only Executive Magistrates can invoke Section 163 BNSS. This includes District Magistrates, Sub-Divisional Magistrates, and Executive Magistrates of the first class. The power must be exercised when there is material to believe that immediate action is necessary to prevent danger to human life, health, safety, or public tranquility. The order cannot be issued based on vague or speculative grounds. The Gujarat High Court in Navdeep Mathur v. State of Gujarat (2025) held that rolling prohibitory orders cannot become a permanent governance tool and must be actively publicized beyond mere gazette notifications. The State Government may extend prohibitory orders beyond two months up to six months, but only after reviewing the necessity and proportionality of such extension.

Step by step procedure

The procedure for issuing prohibitory orders under Section 163 BNSS involves several mandatory steps. First, the Executive Magistrate must receive information about the potential threat to public order. Second, the Magistrate must apply mind to the material facts and record reasons in writing. Third, the order must be served to the affected persons or published in the Official Gazette. Fourth, the order must specify the geographical area and time period clearly. Fifth, the order must be subject to periodic review. When challenging a prohibitory order, affected persons must file a writ petition under Article 226 of the Constitution before the High Court within 30 days of the order. The petition must challenge the order on grounds of lack of material facts, disproportionate restrictions, or violation of procedural requirements.

Documents and evidence required

For issuing prohibitory orders, Executive Magistrates must maintain a record of the information received, including police reports, intelligence inputs, or complaints from affected parties. The order must be based on specific material facts and not on general apprehensions. When challenging a prohibitory order, petitioners must file an affidavit stating the grounds of challenge, supported by relevant documents such as previous orders, police reports, or evidence showing the lack of necessity for the restriction. The petition must include copies of the prohibitory order and proof of service or publication. Courts typically require petitioners to demonstrate that the order is not reasonable or proportionate to the threat posed to public order.

Timelines, limitation and fees

The following table outlines key timelines and procedural requirements:

Action	Timeline	Authority
Issuance of prohibitory order	Immediate upon receipt of information	Executive Magistrate
Publication in Gazette	Within 24 hours of issuance	State Government
First review of order	Within 15 days of issuance	Executive Magistrate
Extension beyond 2 months	After reviewing necessity	State Government
Challenge to High Court	Within 30 days of order	Petitioner
Supreme Court appeal	Within 30 days of High Court order	Petitioner

Court fees for filing writ petitions vary by High Court but typically range from Rs. 5,000 to Rs. 20,000 depending on the valuation of the subject matter. The limitation period for challenging prohibitory orders is strictly 30 days from the date of order or publication.

What the courts have held

The Supreme Court has consistently emphasized that prohibitory orders must be an exception rather than the rule. In Madhu Limaye v. State of Maharashtra (1971), the Court held that prohibitory orders cannot be issued merely to prevent inconvenience or annoyance to the public. The Court in Anuradha Bhasin v. Union of India (2020) established that the right to protest is a fundamental right and any restriction must satisfy the proportionality test. The Gujarat High Court in Navdeep Mathur v. State of Gujarat (2025) quashed a series of overlapping prohibitory orders, holding that emergency power cannot become normal governance. The Court emphasized that prohibitory orders must be widely publicized beyond mere gazette notifications and must be actively reviewed.

Common mistakes and how to avoid them

A common mistake is issuing prohibitory orders without recording specific material facts and reasons. Executive Magistrates must ensure that each order is based on concrete information rather than vague apprehensions. Another mistake is failing to publish orders adequately. The Gujarat High Court has emphasized that mere publication in the Gazette is insufficient; orders must be widely publicized through other means. Organizations challenging prohibitory orders often fail to file within the limitation period. It is crucial to file writ petitions within 30 days of the order. Many petitioners also fail to demonstrate the disproportionate nature of the restriction, making it difficult to succeed in judicial review.

Practical checklist

For organizers planning protests:

• Verify whether prohibitory orders are in force in the area
• File applications for permission well in advance
• Ensure compliance with any reasonable conditions imposed
• Document all communications with authorities
• Prepare for legal challenges if orders are issued

For challenging prohibitory orders:

• File writ petition within 30 days of order
• Include specific material facts showing lack of necessity
• Demonstrate disproportionate impact on rights
• Challenge procedural irregularities in issuance
• Seek interim relief if immediate harm is anticipated

Frequently asked questions

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

A prohibitory order under Section 163 BNSS can remain in force for a maximum of two months from the date of issuance. The State Government may extend this period up to six months after reviewing the necessity and proportionality of such extension.

Can prohibitory orders be issued against specific individuals?

Section 163 BNSS primarily addresses assemblies and activities rather than specific individuals. However, if an individual poses a specific threat to public order, separate legal proceedings may be initiated against them under other provisions of law.

What happens if a prohibitory order is violated?

Violating a prohibitory order under Section 163 BNSS constitutes an offense punishable with imprisonment up to six months, fine, or both. However, courts have emphasized that police should use force to disperse crowds, not punish protesters, and should follow the principles of proportionality.

Can prohibitory orders be challenged before the Supreme Court directly?

No, prohibitory orders must first be challenged before the High Court through a writ petition under Article 226. Only after the High Court's decision can an appeal be filed before the Supreme Court under Article 136, subject to the Court's discretion.

What are the grounds for challenging a prohibitory order?

Prohibitory orders can be challenged on grounds of lack of material facts, disproportionate restrictions, violation of procedural requirements, or infringement of fundamental rights under Article 19(1)(b). The challenge must demonstrate that the order is not reasonable or necessary in a democratic society.

Do prohibitory orders apply to religious gatherings?

Section 163 BNSS applies equally to all assemblies, including religious gatherings. However, courts have held that prohibitory orders cannot be used to discriminate against particular religious communities, and any restriction must be based on objective assessment of threats to public order.

Key takeaways

• Section 163 BNSS replaced Section 144 CrPC on July 1, 2024, with enhanced safeguards for fundamental rights
• Prohibitory orders can be issued only by Executive Magistrates based on specific material facts
• Orders must specify geographical area and time period and must be published in the Gazette
• The State Government may extend orders beyond two months up to six months after review
• Orders must satisfy the proportionality test and cannot be used to suppress legitimate dissent
• Challenges must be filed within 30 days as writ petitions before the High Court
• Courts have emphasized that prohibitory orders cannot become routine governance tools

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.