Preventive provisions of the BNSS, 2023 · GS-II
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Consider the following statements regarding Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the successor provision to Section 144 of the Code of Criminal Procedure, 1973:
- Section 163 of the BNSS empowers an Executive Magistrate to issue prohibitory orders to prevent disturbance of public tranquillity, but such orders must be premised on an apprehension of imminent threat to peace and cannot serve as a blanket restriction on lawful public activity in the absence of any such apprehension.
- An order under Section 163 of the BNSS, once issued, operates in the same manner as a court injunction and can only be challenged through an appeal to the High Court under its ordinary appellate jurisdiction, not through a writ petition.
Which of the statements given above is/are correct?
Explanation
Statement 1 is correct. Section 163 of the BNSS (successor to Section 144 CrPC) confers on an Executive Magistrate the power to issue orders directing persons to abstain from a certain act or to take certain precautionary measures when there is sufficient ground to apprehend danger or injury to any person, disturbance of public tranquillity, riot, or affray. The foundational requirement is a reasonable apprehension of a threat to public order or tranquillity — the power is preventive, not punitive, and must be exercised proportionately. A blanket prohibitory order issued not because peaceful lawful activity poses any threat to peace, but merely because elections are imminent or because authorities are suspicious of the motivations of the persons involved, exceeds this power and infringes the fundamental freedoms of speech, expression, and peaceful assembly guaranteed under Articles 19(1)(a) and 19(1)(b) of the Constitution. The Supreme Court has consistently held that restrictions on these freedoms must satisfy the test of reasonableness under Articles 19(2) and 19(3), and a preventive order under Section 144 CrPC / Section 163 BNSS that lacks a factual foundation of apprehended breach of peace fails that test. Statement 2 is incorrect on two grounds. First, an order under Section 163 BNSS is an executive/administrative order passed by a Magistrate, not a decree or order of a civil court — it does not operate as a court injunction. Second, the primary remedy against such an order is NOT restricted to an appellate route to the High Court; a person aggrieved by such a prohibitory order may challenge it by moving the High Court under Article 226 of the Constitution (writ jurisdiction) or the Supreme Court under Article 32, particularly when fundamental rights under Article 19 are alleged to be violated. The power to challenge via writ has been firmly established in Indian constitutional jurisprudence and cannot be displaced by any statutory appellate framework.