Questions raised over police’s failure to make prohibitory orders public

Why in the News

The law lets anyone affected by a prohibitory order ask for it to be cancelled, but the Delhi Police has not published the Section 163 orders it says are in force. The gap has surfaced after mass detentions of protesters demanding the Chief Election Commissioner‘s resignation over alleged electoral irregularities.

What is a Section 163 prohibitory order?

1. What it is: Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 lets an Executive Magistrate issue a written order banning gatherings or activities in an area. It works like a temporary “no assembly” notice for a locality.
2. Older provision: Section 163 replaced Section 144 of the Code of Criminal Procedure (CrPC), 1973, the long familiar power to stop gatherings.
3. When it can be used: Only where “immediate prevention or speedy remedy” is needed to prevent danger to human life or safety, a disturbance of public tranquillity, or other specified threats.
4. Time limit: The statute makes each order lapse after two months, so a single order cannot run indefinitely.
5. The takeaway: The power is built for emergencies and short spells, which is why the law caps its duration and lets people challenge it.

What does the Delhi order restrict?

1. Area covered: An order issued on August 23 by an Assistant Commissioner of Police covers the Parliament Street police sub-division of New Delhi district.
2. Jantar Mantar carve out: The order expressly excludes a specifically demarcated area on Jantar Mantar Road, the capital’s recognised protest site.
3. Activities barred: Until October 21, it prohibits assembly of five or more persons, public meetings, processions, slogan shouting and speeches, among other activities.
4. Other areas unclear: The Delhi Police has not confirmed whether separate orders for the Connaught Place, Chanakyapuri and Barakhamba Road sub-divisions, or for the Jantar Mantar area, were made public.
5. Police explanation: The stated position is that hoardings and announcements in these areas inform people that prohibitory orders are in force.

Why must the orders be made public?

1. Statutory right to challenge: Section 163(5) lets any aggrieved person apply to modify or cancel an order. A person cannot contest an order whose text they cannot see.
2. Duty to publish: A former Supreme Court judge reads this right as a statutory mandate to publish orders in the public domain, so they “cannot be kept confidential”.
3. Notices fall short: The same former judge holds that hoardings or announcements saying only that an order is in force do not meet this requirement. They do not show what the order bans.
4. Access only through RTI: An advocate researching these orders obtained many of them only through Right to Information (RTI) applications, so the lack of public access is not new.
5. Copy paste renewals: The police reissue “cyclostyled” orders, copied word for word, as soon as the two month limit expires, so a temporary power operates like a permanent one.

Challenges

1. Renewal without fresh grounds: Reissued copies skip the fresh check of danger that the power requires. Eg. Anuradha Bhasin (2020) required orders to state material facts for review.
2. Slow information route: An RTI reply can take up to 30 days, by which time the protest or the order may be over.
3. Unclear boundaries: Protesters cannot tell which sub-divisions are covered, so lawful assembly elsewhere still risks detention.

Way Forward

1. Online publication: The Delhi Police should post the full text of every Section 163 order on its website on the day it is issued.
2. Reasoned renewal: Magistrates should record fresh reasons, based on current facts, before any order is reissued.
3. Area maps: Each order should carry a map of the covered and excluded areas, including the Jantar Mantar zone.

Conclusion

A right to challenge a prohibitory order means little as long as the order itself stays hidden. Whether courts hold the police to publication will decide if this power remains an emergency tool or hardens into a standing ban on protest.

Back2Basics: Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

1. What it is: One of three new criminal laws, with the Bharatiya Nyaya Sanhita and the Bharatiya Sakshya Adhiniyam, in force from 1 July 2024.
2. Trial timelines: It requires judgment within 45 days of the completion of arguments.
3. Zero FIR: Section 173 requires police to register a First Information Report (FIR) even where the offence occurred outside that station’s jurisdiction.

Matching Previous Year Question

“[2026] X’ was addressing a seminar on the meaning of the term ‘law’ as provided under Article 13, Part III of the Constitution of India. ‘X’ explained that the meaning of the term ‘law’ in the Constitution of India was very comprehensive. It included ordinances, orders and even rules and regulations. ‘Y’ pointed out that the term ‘law’ in Article 13 also included custom or usage having in the territory of India the force of law, to which ‘X’ was not convinced. Based on the above, select the correct conclusion from the options given below: (a) X is correct in the interpretation of law, including the view on non-inclusion of custom (b) The view of Y that ‘law’ included custom is not correct (c) The views of both X and Y are correct (d) The view of only Y is correct ANSWER: D”