Supreme Court Issues Notice on Constitutional Validity of BNSS Section 172: Police Powers and Peaceful Assembly Rights at Stake

Peaceful Assembly and the Right to Protest

The constitutional challenge to Section 172 has particular resonance in the context of public gatherings and protests. Police routinely issue directions to dispersing crowds, to prevent gathering in certain areas, or to move protesters away from sensitive locations. When protesters refuse to comply, Section 172 provides the legal basis for detention.

Article 19(1)(b) of the Constitution protects the right of all citizens to assemble peaceably and without arms. This right is not absolute—it can be restricted in the interests of public order, decency, or morality, or to prevent obstruction to traffic. Yet the restrictions must be reasonable, must be prescribed by law, and must not be arbitrary.

The petitioner's argument is that Section 172 allows police to exercise discretion in deciding what constitutes a lawful direction and what constitutes disobedience, with minimal oversight. A police officer at the scene of a protest can issue a direction to disperse, and if even a few persons do not comply immediately, they can be detained under Section 172. There is no requirement that the direction be proportionate to the threat posed, no requirement that alternative means of achieving the lawful object be considered, and no requirement that the detention be reported to a magistrate within a specified time.

This structure raises the risk that Section 172 will be used not to manage genuine public safety threats but to suppress dissent and restrict the exercise of constitutional rights.

The Court's Reasoning on Section 163

In the same hearing on October 16, 2026, the Court declined to examine Section 163 BNSS, which empowers executive magistrates to issue urgent prohibitory orders to prevent danger or maintain peace. This section replaced Section 144 of the old Code of Criminal Procedure.

The Court's reasoning was straightforward: the pari materia provision under the former code, Section 144 CrPC, had already been upheld in Babulal Parate v. State of Maharashtra (1961). That precedent stood in the way of entertaining a fresh challenge to the new provision.

However, the Court did not extend this reasoning to Section 172. The bench found the challenge sufficiently distinct to warrant notice and further hearing. This suggests the Court sees substantive constitutional questions not foreclosed by earlier precedent.

The distinction may lie in the nature of the power. Section 163 is exercised by a magistrate, a judicial officer with constitutional obligations of impartiality. Section 172 is exercised by police, an executive authority with different incentives and fewer structural safeguards. A magistrate issuing a prohibitory order must form a reasoned belief that danger exists or peace is threatened. A police officer issuing a direction under Section 172 may act on the spot, in the moment, with no requirement to document reasoning.

Personal Liberty and Arbitrary Detention

Article 21 of the Constitution protects the right to life and personal liberty. The Supreme Court has held repeatedly that personal liberty is the residuary repository of all fundamental rights. Detention without lawful authority, or with insufficient safeguards against arbitrariness, violates Article 21.

The petitioner's challenge rests substantially on this ground. Even if the direction issued by police is lawful, the detention of a person for disobeying it may be arbitrary if there are no procedural safeguards—no requirement of proportionality, no requirement of written grounds, no requirement of timely reporting to a magistrate, no requirement of access to counsel.

The Court has shown sensitivity to this issue in recent years. In cases involving preventive detention and police custody, the Court has increasingly insisted on procedural compliance and judicial oversight. The September 2026 judgment on Article 22(1) exemplifies this trend. The bench held that if an investigating agency seeks re-arrest after an initial arrest was declared illegal, it must furnish written grounds of arrest and approach the magistrate with reasons and necessity for custody, approved by a superior officer. This procedure ensures judicial oversight and protects citizens from arbitrary police action.

Applying similar logic to Section 172, the Court might hold that detention under that section must also be subject to procedural safeguards—written grounds, timely reporting to a magistrate, and opportunity for the detainee to be heard.

What Comes Next

The matter has been listed for further hearing on November 19, 2026. By that date, the Union of India and the state governments will have filed their responses. They will likely argue that Section 172 is a necessary and proportionate tool for police to manage public order, that it has been in use in various forms for decades, and that it does not violate any fundamental right when exercised in good faith.

The petitioner will have an opportunity to file a rejoinder, highlighting instances where Section 172 has allegedly been used to suppress protest or to detain persons without adequate cause. The Court will then need to balance the need for police powers with the constitutional imperatives of personal liberty and freedom of assembly.

The outcome will shape how police exercise their powers in managing crowds, dispersing protests, and maintaining public order. A narrow ruling might simply require procedural compliance—written grounds, timely reporting, access to counsel. A broader ruling might require police to demonstrate proportionality and necessity before detaining a person under Section 172, or might impose time limits on such detention. Either way, the Court's decision will clarify the constitutional limits of police power in India's new criminal procedure framework.