Preventive Detention and the Right to Protest: Article 22, the NSA and Section 163 BNSS Explained
On 10 October 2026, a planned protest at Jantar Mantar in New Delhi, against the functioning of the Election Commission, was stopped amid heavy security. Around 7,000 people were detained, according to reports, and entry was restricted at several Metro stations.
On 11 October 2026, a special bench of the Supreme Court (Justices Joymalya Bagchi and V. Mohana) heard urgent pleas. These alleged that its earlier order of 9 October on Metro and train services had been violated, and that people had been detained illegally.
The Court said people gathering peacefully must not be illegally detained. It asked the government to keep the Delhi Metro running normally and internet services undisturbed, subject to law and order needs, and not to obstruct lawyers and journalists in their work.
The bench noted claims that people were detained even outside the area covered by a prohibitory order under Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. It issued notice to the Centre on a contempt plea (a complaint that a court order was disobeyed).
The events have renewed public attention on preventive detention, the safeguards under Article 22 of the Constitution, and the limits of state power over peaceful protest.
Article 22: Protection Against Arrest and Detention
Article 22 of the Constitution gives every arrested person some basic protections. They must be told why they are arrested, can consult a lawyer of their choice, and must be produced before a magistrate within 24 hours. Article 22 also allows preventive detention: keeping a person in custody not for a crime already committed, but to stop them from doing something harmful in the future. For such detention, it gives a separate, weaker set of safeguards.
Most people held during street protests are not booked under a preventive detention law. They are usually held briefly under police powers. But every such detention must still respect Article 21 and Article 22, which is why the Supreme Court stepped in to say peaceful protesters cannot be detained illegally.
National Security Act (NSA), 1980 and Preventive Detention
The National Security Act (NSA), 1980 is a central law that allows the government to detain a person without trial for up to 12 months, to stop that person from acting against national security or public order. It is a preventive detention law: the person is not punished for a crime proved in court, but locked up because the government believes they may do something harmful. It is one of India's strictest laws, and also one of its most debated.
The October 10 detentions in Delhi have led people to ask when the state can hold someone without trial. The NSA shows the strongest form of this power and its safeguards. It also shows why courts insist on a real threat to public order, not just a fear of a law and order problem, before liberty can be taken away.
Section 163 BNSS (formerly Section 144 CrPC): Prohibitory orders
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 or safety. The order can ban gatherings, stop certain activities or close an area for some time. It is commonly called a prohibitory order. It replaced Section 144 of the Code of Criminal Procedure (CrPC), 1973, with largely the same content.
Prohibitory orders under Section 163 were in force around the protest areas. The Supreme Court took note of claims that people were detained even outside the area covered by the order, and of notices put up outside the courts, which raises the question of whether the order was used beyond its legal limits.
- Protest date: 10 October 2026, New Delhi; around 7,000 people reported detained
- Supreme Court special sitting: 11 October 2026; bench of Justices Joymalya Bagchi and V. Mohana
- Earlier Supreme Court order on Metro and train services: 9 October 2026; entry or exit restricted at 45 of 303 Delhi Metro stations on 10 October, as submitted by the government
- Article 22(4): Advisory Board needed for preventive detention beyond 3 months
- NSA, 1980: maximum detention 12 months; Advisory Board report within 7 weeks
- Section 170 BNSS (old Section 151 CrPC): preventive arrest, maximum 24 hours
- Section 163 BNSS (old Section 144 CrPC): prohibitory order, up to 2 months, extendable by the State up to 6 more months