Section 163 BNSS: what a prohibitory order lets the authorities do, and where it stops

What is Section 163?

It is the emergency power that lets the authorities order people not to do something, such as gather in a particular area, when they believe trouble is imminent.

For decades this power sat in Section 144 of the Code of Criminal Procedure, which is why many people still say “Section 144 has been imposed”. On 1 July 2024 the old code was replaced by the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the same power moved, with few changes, to Section 163.

Who can issue an order?

A District Magistrate, a Sub-Divisional Magistrate or another executive magistrate specially empowered by the state government.

These are administrative officers, not judges. In cities with a police commissioner system, such as Delhi, senior police officers exercise these executive magistrate powers, which is why prohibitory orders in the capital are usually issued by the police.

What can an order actually do?

It can direct a person, the people living in an area or the public visiting a place to stop doing something, or to deal with property in a certain way.

The law allows this when an officer believes immediate action is needed to prevent obstruction or injury to people, danger to human life, health or safety, a disturbance of public peace, a riot or an affray. In practice that most often means a ban on gatherings, processions, loudspeakers or carrying weapons in a defined area.

The order must be in writing and must set out the specific grounds for it. In an emergency it can be issued without first hearing the people affected.

Is it a ban on four or more people meeting?

Not by itself. The law does not fix a number. The familiar “no assembly of four or more” is simply how many orders are written. What is barred depends on the text of each order, which is why lawyers in Delhi this week have pressed to see the orders themselves. On 12 October, Senior Advocate Gopal Sankaranarayanan told the Supreme Court that no Section 163 order had been made public.

How long can it last?

Two months at most. The state government can extend it by notification for up to six more months, but only if it considers that necessary to prevent danger to life, health or safety, or a riot or affray.

Section 163 in four numbers

• 1 July 2024date the BNSS replaced the old Criminal Procedure Code
• 2 monthslongest an order can run on its own
• 6 monthsfurther extension the state government can allow
• Section 223of the Bharatiya Nyaya Sanhita, the offence of disobeying such an order

What happens if you break it?

Disobeying an order lawfully issued is an offence under Section 223 of the Bharatiya Nyaya Sanhita, the successor to Section 188 of the old Indian Penal Code. It is a charge commonly added to FIRs after protests held without permission. The cases registered over the INDIA bloc’s march to the Supreme Court on 12 October, for example, allege violation of orders under Section 163, along with broken barricades.

A breach of the order is not the same as an unlawful assembly, which is a separate offence with its own conditions.

Can an order be challenged?

Yes, in two ways. Anyone affected can apply to the magistrate who issued it, or to a senior magistrate, to cancel or change it. If that fails, the order can be challenged in a High Court or the Supreme Court as an unreasonable restriction on fundamental rights.

The Constitution guarantees the right to assemble peacefully and without arms, and the right to move freely, under Article 19. The state may restrict them only reasonably, for reasons such as public order.

What have the courts said?

That the power is valid, but must be used carefully and openly.

In the Anuradha Bhasin case of January 2020, about restrictions in Jammu and Kashmir, the Supreme Court said orders under the old Section 144 must state the specific grounds behind them so they can be tested in court, must weigh the rights involved against the danger, and cannot be used to suppress the legitimate expression of opinion or grievance. Repeated orders to cover the same situation, it said, would be an abuse of power.

That standard now applies to Section 163. It is the yardstick against which this month’s orders in Delhi will be measured as the detention and contempt petitions continue in the Supreme Court.