Law and You >Procedural Laws > BNSS > Urgent Cases of Nuisance or Apprehended Danger (S. 163 BNSS)
Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is one of the most significant provisions empowering the State to maintain public order and tranquillity. It authorizes a District Magistrate, Sub-Divisional Magistrate, or other empowered Executive Magistrate to issue orders in urgent cases of nuisance or apprehended danger. Through this provision, the administration can impose restrictions on the assembly of people, carrying of weapons, or activities that may lead to disturbance of peace. While it is primarily preventive in nature, designed to avert potential threats to law and order, it often attracts debate for its impact on fundamental rights such as freedom of speech, expression, and peaceful assembly. Thus, Section 63 BNSS represents the delicate balance between safeguarding public safety and preserving democratic freedoms in a constitutional democracy like India. In this article, let us discuss the provisions under Section 163 of BNSS to tackle urgent cases of nuisance or apprehended danger.
S. 163 BNSS:
Power to Issue Order in Urgent Cases of Nuisance or Apprehended Danger:
(1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 153, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety or a disturbance of the public tranquillity, or a riot, or an affray.
(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.
(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
(4) No order under this section shall remain in force for more than two months from the making thereof:
Provided that if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.
(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section by himself or any Magistrate subordinate to him or by his predecessor-in-office.
(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4).
(7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by an advocate and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.
Section 163 of the BNSS is imposed in situations where a dangerous event is likely to happen which need prompt and urgent action. Although the scope is wide, it is mainly used to prohibit the unlawful assembly. In the event there is an unlawful assembly, the ones involved will be booked under the Sanhita. Section 163 BNSS empowers a sub-divisional magistrate, district magistrate or any executive magistrate empowered by the State Government to issue an order towards the general public or an individual in a particular place. The actions taken under this section are anticipatory, i.e. it utilized to restrict certain actions even before they actually occur.
Scope of the Right to Freedom of Assembly:
All citizens of our country have the right “to assemble peaceably and without arms” under Article 19(1)(b) of the Constitution of India. It follows that the freedom of citizens to meet and interact with others in any number is guaranteed, subject to two conditions:
- The assembly should be peaceful.
- It should be unarmed.
The right to carry out processions would also be covered within the ambit of this provision. However, this fundamental right of citizens is not an absolute one. Before the Constitution came into force, the law had absolute power to abridge this right of the citizens. Now the position has been changed and the State can regulate this right to a limited extent and only “in the interest of the people”. Under the Constitution, the State has the power to lay down reasonable restrictions “in the interests of the sovereignty or integrity of India or public order”. The intent of the Constituent Assembly in inserting the term “reasonable” before restrictions was to ensure that there is a check on the unfettered power of the State and that the Courts can look into if the imposed restrictions were “reasonable, proper, and necessary in the circumstances of the case”.
What Powers does the Administration have under Section 163 BNSS?
- The magistrate can direct any person to abstain from a certain act or to take a certain order with respect to certain property in his/her possession or management.
- This usually includes restrictions on movement, carrying arms and from assembling unlawfully.
- It is generally believed that assembly of three or more people is prohibited under Section 163 BNSS. However, it can be used to restrict even a single individual. This is done when the magistrate considers that it is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person.
- It is also employed to prevent danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot.
Constitutional Validity of Section 163 BNSS:
In Madhu Limaye v. S.D.M Monghyr, AIR 1971 SC 2486 case, Hidaytullah, C . J, stated that section 144 of Criminal Procedure Code, 1973 (S. 163 BNSS) is not unconstitutional if property applied and the fact that it may be abused is no ground for its being struck down. And the provisions of the code properly understood are not in excess of limits laid down in the constitution for restricting the freedom guaranteed in it and that is precisely why the court held that section 144 of Criminal Code (S. 163 BNSS) is valid and constitutional.
In Ramlila Maidan Incident v. Home Secretary, Union of India (UOI) (23 February, 2012) case, Section 144 CrPC (S. 163 BNSS) was imposed after agitations were led by Baba Ramdev at the Ramlila Maidan in Delhi. The Supreme Court observed: “It must be borne in mind that the provisions of section 144 CrPC (S. 163 BNSS) are attracted only in emergent situations… in case of a mere apprehension, without any material facts to indicate that the apprehension is imminent and genuine, it may not be proper for the authorities to place such a restriction upon the rights of the citizen.
In Kartar Singh v. the State of Punjab, [1994] SCC 569 (SC) case, the Supreme Court observed that “laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly”. Any law could not be rendered void solely on the ground of vagueness.
In Gulam Abbas v State of UP, AIR 1981 SC 2198 case, where the question was whether an order made under the section 144 CrPC (S. 163 BNSS) is judicial, quasi-judicial or executive and subject to writ under Article 32. The court said that the keynote of the power under Section 144 CrPC (S. 163 BNSS) is to free the society from menace of serious disturbances of grave character and this section is directed against those who attempt to prevent the exercise of legal rights by others or imperil public health and safety.
Who Will Issue the Order?
According to Section 163(1) BNSS following class of persons can issue an order under Section 163 BNSS, if it is necessary in their opinion.
- the District Magistrate
- a Sub-divisional Magistrate
- Executive Magistrate empowered by the State government for this
It is a settled law that Magistrate is authorized to act under Section 163(1) only when he is satisfied as regards the existence of such an emergent or urgent situation or circumstances which are likely to disturb the public tranquillity and such reasons must be reflected in order itself with reasons thereof. A mere statement that he is satisfied that there is possibility of serious breach between the parties as well as public tranquillity isn’t sufficient enough to exercise such wide powers under this Section.
When Will an Order under Section 163 be Issued?
According to Section 163(1) BNSS, when the DM, SDM or any other specially empowered Executive Magistrate has the opinion that this order is necessary to prevent the likelihood of
- obstruction, annoyance or injury to any person lawfully employed
- danger to human life, health or safety
- disturbance to public tranquillity, or a riot or a affray
In Manzur Hasan v. Muhammad Zaman, (1921) ILR 43 All 692 and Shaik Piru Bux v. Kalandi Pati, 1969 SCR (2) 563 cases the Courts elaborated the principles which must be borne in mind before the application of this situation as follows:
- Urgency of situation and use of such power only for preservation of public peace and tranquility.
- Rights of individual i.e. private rights can be renounced when there is conflict between public rights and private rights.
- Question of titles over any property or entitlement to rights or disputes of civil nature are not open for adjudication in proceeding under this section.
- Where those questions which have already been decided and given consideration by civil courts or judicial pronouncements , the Magistrate should exercise their powers under Section 144 CrPC (S. 163 BNSS) in aid of rights and against those who interfere with the lawful exercise there of.
- The consideration shouldn’t be that restriction which would affect only particular section of society or community rather than a large section more vociferous and militant.
Nature of the Order under Section 163 BNSS:
According to Section 163(1) BNSS,
- the order must be written and
- state the material facts of the case.
Serving of the Order under Section 163 BNSS:
The order under Section 163(1) BNSS will be served to someone like summons, or be stuck at a place fittest for conveying information as given in Section 153 (Service or notification of order).
Ex-Parte Order:
According to Section 163(2) BNSS, the order can be passed ex-parte in the following cases:
- in case of emergency
- if it is not possible to serve the notice to the person against whom order is issued in due time
To whom Order under Section 163 BNSS is Made?
According to Section 163(3) BNSS, the order under this section can be made against
- a particular individual,
- persons residing in a particular locality, and
- to people visiting a particular locality.
Duration of the Order under Section 163 BNSS:
According to Section 164(4) BNSS, the maximum duration of an order passed by the DM, SDM, or Executive Magistrate is 2 months. But it can be extended by the State government up to a total of 6 months.
Alteration or Rescinding of Order under Section 163 BNSS:
According to Section 163(5) BNSS, on an application by a person aggrieved by the order, or on his own, the Magistrate may rescind or alter the order. But this power is available to the Magistrates only for a maximum of 2 months for which they can order. In case of an order under 163 which has been extended to 6 months or less by the State government, the state government will decide the alteration or decide to rescind the order.
According to Section 163(6) BNSS, the State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to Section 163(4).
According to Section 163(7) BNSS, where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by an advocate and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.
Conclusion:
Section 163 of the Bharatiya Nagarik Suraksha sanhita, 2023 serves as an important tool in the hands of the administration to maintain peace, prevent imminent danger, and ensure public safety. While its primary objective is to act as a preventive measure during emergencies such as riots, unrest, or potential threats to law and order, it must be exercised with caution and responsibility. The power conferred is extraordinary and temporary in nature, hence it should not be misused to curtail fundamental rights or stifle democratic expressions unnecessarily. Ultimately, a balance must be maintained between individual liberties and collective security, ensuring that Section 163 BNSS remains a safeguard for society rather than a tool of oppression.