Section 163 BNSS (formerly Section 144 CrPC)

Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 lets a magistrate pass an urgent order to stop a possible danger to public peace. Such an order can ban gatherings of people, stop certain activities, or close an area for some time. It is commonly called a prohibitory order. It replaced the well-known Section 144 of the Code of Criminal Procedure (CrPC), 1973, when the BNSS came into force on 1 July 2024.

Why does it exist?

Sometimes the police and administration get information that trouble may break out: a riot, a clash between groups, or violence at a rally. They cannot wait for a full trial in court. They need a quick, temporary power to stop the danger before it happens. Section 163 gives this emergency power. Think of it like a fire alarm: it is meant for urgent situations, not for everyday use.

Where did it come from?

The power is old. A similar provision existed in the CrPC of 1861 and 1898 during British rule. The CrPC of 1973 kept it as Section 144. In 2023, Parliament replaced the CrPC with the BNSS, and the same power moved to Section 163 with almost the same wording. The new law mainly renumbered and restructured it; the basic power did not change.

Who can issue the order?

• A District Magistrate (the top administrative officer of a district, usually the Collector),
• a Sub-Divisional Magistrate, or
• any other Executive Magistrate specially empowered by the State Government.

In cities with a police commissionerate system, such as Delhi, the Commissioner of Police and senior police officers act as Executive Magistrates for this purpose.

How does it work, step by step?

1. Ground: The magistrate must believe that there is sufficient ground for action and that immediate prevention or speedy remedy is needed.
2. Written order: The order must be in writing and must state the material facts (the reasons).
3. What it can say: It can direct any person to stop doing a certain act, or to take certain care of property, if this is likely to prevent obstruction, annoyance or injury to anyone lawfully employed, danger to human life, health or safety, a disturbance of public tranquillity, a riot or an affray (a public fight).
4. Ex parte power: In an emergency, the order can be passed without hearing the people affected (this is called ex parte).
5. Whom it covers: It can be aimed at one person, at people in a particular place, or at the public in general visiting an area.
6. Review: The magistrate can change or cancel the order on their own or when an affected person applies. The affected person must be given a chance to be heard.

How long can it last?

• An order lasts for a maximum of two months from the date it is made.
• The State Government can extend it, if needed to prevent danger to life, health or safety or to prevent a riot, by notification, for a further period of up to six months from the date on which the magistrate's order would otherwise have expired.

What have the courts said?

• Babulal Parate v. State of Maharashtra (1961): The Court upheld Section 144 as a valid reasonable restriction.
• Madhu Limaye v. Sub-Divisional Magistrate, Monghyr (1970): A larger bench again upheld Section 144, but said it must be used only in urgent situations where the emergency is sudden and the danger serious. It is meant to prevent danger, not to punish, and not to suppress legitimate opinion.
• Ramlila Maidan Incident, In re (2012): The Court said there must be a real, not imaginary, danger before using the power.
• Anuradha Bhasin v. Union of India (2020): The Court said such orders cannot be used to suppress the legitimate expression of opinion or grievance. They must be reasoned, proportionate and open to court review. Repeated orders passed one after another without fresh reasons are an abuse of power.

India's position and examples

Prohibitory orders are very common in India. They are used before festivals with a risk of communal tension, during exams to stop crowds near centres, during elections, near Parliament during sessions, and before large protests. In some areas they are imposed around important buildings, which is why protests near such places need special permission.

Commonly confused concepts

• Section 163 order vs curfew: A Section 163 order usually bans gatherings of people or certain acts. A curfew is stricter: people must stay indoors during set hours. A curfew is also usually imposed under Section 163 (earlier Section 144), but the order's wording is far wider.
• Section 163 BNSS vs Section 144 CrPC: The same power. Section 144 was in the old CrPC, 1973; Section 163 is in the BNSS, 2023, in force since 1 July 2024.
• Prohibitory order vs preventive detention: A prohibitory order controls an area or activity. Preventive detention locks up a person to stop them from doing something harmful in the future, under special laws and Article 22.
• Prohibitory order vs unlawful assembly: Disobeying a prohibitory order is a separate offence under Section 223 of the Bharatiya Nyaya Sanhita (BNS) (earlier Section 188 of the IPC). An unlawful assembly is a group of five or more people with a common unlawful aim.
• Executive Magistrate vs Judicial Magistrate: An Executive Magistrate (like a DM or SDM) is an administrative officer who keeps order. A Judicial Magistrate is a judge who tries criminal cases.

Issues, criticism and the way forward

• Overuse: Critics argue that the power, meant for emergencies, is used routinely and for long periods over large areas.
• Blanket orders: Orders covering a whole city stop peaceful protests along with violent ones, which may fail the proportionality test.
• Weak reasons: Courts have quashed orders that only copy a police letter without the magistrate applying their own mind.
• Chilling effect: Fear of being booked for breaking the order can stop people from using their right to assemble at all.
• Way forward: Use it only for real, immediate danger; give clear written reasons; cover the smallest area and shortest time needed; publish orders so people know the limits; and allow quick court review, as directed in Anuradha Bhasin.

Concepts to Know

• Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023: The new law on criminal procedure (how police investigate, arrest and how trials happen). It replaced the CrPC, 1973, from 1 July 2024.
• Executive Magistrate: A government officer, such as a District Magistrate or Sub-Divisional Magistrate, who has powers to maintain public order. Not a judge who tries cases.
• Ex parte: A decision taken without first hearing the other side, allowed only in urgent cases.
• Public tranquillity: The general peace and calm of the public in an area.
• Police commissionerate system: A system used in big cities where the Commissioner of Police gets some magisterial powers (such as issuing prohibitory orders), which in districts are held by the District Magistrate.