Preventive Detention and Section 163 BNSS: Policing the Delhi Protests

UPSC Mains GS Paper II & III Rights & Internal Security

Preventive Detention and Section 163 BNSS: Policing the Delhi Protests

The Delhi Police detained over 5,000 protesters who were trying to reach Jantar Mantar to demand the removal of the Chief Election Commissioner
PROTESTERS DETAINED
Over 5,000
SC SUNDAY HEARING
11 October
SECTION 163 BNSS REPLACES
Section 144, CrPC
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Why in News

  • The Delhi Police detained over 5,000 protesters who were trying to reach Jantar Mantar to demand the removal of the Chief Election Commissioner.
  • The Supreme Court held an extraordinary Sunday hearing on 11 October. It directed the Centre and the Delhi Police to stop illegal detentions and keep Delhi moving, “subject to law and public order”.
  • The restrictions revived the old question of where preventive policing ends and the right to protest begins.
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Note: The police imposed prohibitory orders under Section 163 of the BNSS, set up barricades, restricted the Metro and cancelled some trains.
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Source: The Hindu & Indian Express
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What is preventive detention, and what protects the detained person?

  • Preventive detention means holding a person without trial or conviction, to stop a future offence and not to punish a past one.
  • Grounds: It can be used for public order, security of the State and law and order.
  • Law: The National Security Act, 1980 allows it when a person’s activities are prejudicial to defence, foreign relations or State security.
  • Article 22(4): Detention beyond three months needs an Advisory Board review.
  • Article 22(5): The grounds must be told to the detainee, who must get a chance to make a representation.
  • Courts: Detention orders are open to judicial review, and the Court has called the power “exceptional” that cannot be used routinely.
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Source: The Hindu & Indian Express
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How is Section 163 BNSS different from preventive detention?

  • Section 163 is a prohibitory order, which restricts conduct. Preventive detention takes away a person’s liberty.
  • Source: It replaces Section 144 of the CrPC, 1973 and keeps its spirit.
  • Who can issue it: A District Magistrate, a Sub-Divisional Magistrate, or an Executive Magistrate specially empowered by the State.
  • Purpose: To prevent obstruction, danger to life or safety, a disturbance of public tranquillity, a riot or an affray.
  • Urgency: It can be passed without prior notice, but the order must state its material facts so it can be challenged.
  • Review: It can be reviewed by the High Court in its revisional jurisdiction.
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Source: The Hindu & Indian Express
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Where does the right to protest end?

  • Article 19(1)(a) and 19(1)(b) give freedom of speech and the right to assemble peacefully and without arms. Articles 19(2) and 19(3) allow reasonable restrictions, including in the interest of public order.
  • Regulation is allowed: In Himat Lal K. Shah v. Commissioner of Police (1973), the Court held that assemblies on public streets can be regulated, but not prohibited arbitrarily.
  • Limits on Section 144: In Babulal Parate (1961), the Court said the power is not “unlimited or untrammelled”. In 2012, it said the emergency must be sudden and the consequences sufficiently grave.
  • No blanket ban: In Mazdoor Kisan Shakti Sangathan (2018), the Court set aside a ban on all protests at Jantar Mantar Road. It asked for a system to regulate protests and grant permissions.
  • Personal liberty: In Maneka Gandhi (1978), the Court held that any procedure restricting liberty must be just, fair and reasonable.
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Source: The Hindu & Indian Express
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Way Forward

Specific Orders
Orders under Section 163 should be specific in time and place and should state their reasons in writing.
Limit Detentions
Detentions should be limited to cases of imminent threat, and grounds should be recorded and communicated promptly.
Protest Policy
A clear protest policy should provide nearby alternative venues, as the Court suggested in 2018.
Quick Remedies
Habeas corpus hearings and compliance reports should be taken up quickly so that remedies are not delayed.
Conclusion: The State can regulate protests to keep order, but it cannot use detention or prohibitory orders as a routine tool. The Supreme Court’s test is simple: any restriction must be legal, proportionate and for a real, immediate threat.
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Source: The Hindu & Indian Express

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