Section 163 Imposed In Delhi Ahead Of CJP Stir: Why It Matters For The Right To Protest In India

Delhi Police has refused permission for the Cockroach Janta Party (CJP) protests scheduled for October 10 and 11 in the national capital, where demonstrators plan to demand the resignation of Chief Election Commissioner Gyanesh Kumar. According to PTI, the reasons cited by authorities on Friday included the late submission of the application and violations of rules during an earlier demonstration.

The denial comes amid the imposition of Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) in New Delhi district. The provision empowers authorities to issue preventive orders to avert potential disturbances to public order.

A similar measure was imposed in Delhi in July, when thousands of protesters marched demanding the resignation of then Education Minister Dharmendra Pradhan. While Section 163 can be used to restrict public gatherings and demonstrations, its exercise is subject to statutory conditions. What does the provision allow, and how has the Supreme Court addressed restrictions on protests?

What Is Section 163 of the BNSS?

Section 163 is the BNSS equivalent of the erstwhile Section 144 of the Code of Criminal Procedure (CrPC), which was replaced on July 1, 2024, when India's new criminal laws came into force.

The provision empowers a District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate authorised by the state government to issue written prohibitory orders where there is sufficient ground and immediate prevention or speedy remedy is necessary.

Such orders may direct individuals to refrain from specific acts or regulate the use of property to prevent obstruction, annoyance or injury to any person lawfully employed, danger to human life, health or safety, disturbance of public tranquillity, or the likelihood of a riot or affray. An order ordinarily remains in force for up to two months, although the state government may extend it for a maximum of six months.

In practice, Section 163 is commonly invoked to prohibit public gatherings, protests, processions or the carrying of weapons in areas where authorities anticipate a threat to public order.

What Was Section 144?

For decades, Section 144 of the CrPC was among the most widely used provisions to maintain public order. Although it has now been renumbered as Section 163 under the BNSS, its core purpose and powers remain largely unchanged. The change is primarily one of legislative restructuring under the new criminal law framework rather than a substantive expansion or reduction of executive powers.

Courts On Protest Restrictions

The Supreme Court has consistently held that the power to impose prohibitory orders is preventive in nature and must be exercised only in exceptional circumstances.

In Babulal Parate v. State of Maharashtra (1961), the Court upheld the constitutional validity of Section 144 but said it could be invoked only to prevent specific threats to public order, observing that the power was not "unlimited or untrammelled".

In Himat Lal K. Shah v. Commissioner of Police (1973), the Court held that the right to assemble peacefully is an essential part of democracy. While the State may regulate public assemblies to maintain order, it cannot impose arbitrary or blanket restrictions.

In Mazdoor Kisan Shakti Sangathan v. Union of India (2018), the Supreme Court struck down a National Green Tribunal order that had effectively banned protests near Jantar Mantar. It held that regulation cannot become prohibition and directed authorities to evolve a mechanism for granting permission for demonstrations. The Court also observed that, in practice, authorities had turned a permission-based system into an effective ban by routinely refusing permission.

More recently, in Amit Sahni v. Commissioner of Police (2020), popularly known as the Shaheen Bagh case, the Court ruled that while citizens have a right to protest, demonstrations must be held at designated places and should not indefinitely block public roads or inconvenience the public.

India has also told the 47th Session of the UN Human Rights Council in 2021 that peaceful assemblies and marches are an integral part of its democratic tradition. At the same time, it maintained that the State has a responsibility to balance the right to protest with the need to preserve public order and protect the rights of others.