BNSS Section 163: Replacing CrPC 144 as the new public-order preventive provision

The Statutory Question

On 1 July 2024, the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) commenced as India's principal procedural criminal statute, replacing the Code of Criminal Procedure 1973. Section 163 BNSS is the direct successor to Section 144 CrPC, the provision that for over five decades empowered Executive Magistrates to issue prohibitory orders banning unlawful assemblies, regulating processions, directing internet restrictions, and requiring any person to abstain from a specified act whenever immediate prevention was desirable. This explainer asks: how does Section 163 BNSS differ from Section 144 CrPC, and which Supreme Court safeguards from 1971 to 2020 continue to bind every Executive Magistrate exercising the power?

Section 163 BNSS, like its predecessor, empowers an Executive Magistrate, specially empowered by the State Government, to issue a written order directing any person to abstain from a certain act or to take certain order with respect to property in his possession or under his management. The threshold condition is the Magistrate's opinion that sufficient ground for proceeding under the section exists and that immediate prevention or speedy remedy is desirable. The order may be made ex parte in cases of emergency or where service of notice cannot be effected in time. Under sub-section (6) of Section 163 BNSS, the order is operative for 2 months from the date of issue, extendable by the State Government for a further period not exceeding 6 months in the aggregate from the original date.

The continuity of language is deliberate. The Ministry of Home Affairs, in its Statement of Objects and Reasons to the BNSS Bill 2023, described the procedural code as having been "rationalised" rather than rewritten. Section 144 CrPC was renumbered as Section 163 BNSS with the substantive grant of power unchanged, the duration limits unchanged, and the ex parte mechanism unchanged. What has changed is the surrounding scaffolding: the BNSS has renumbered around 90 per cent of provisions and added technology-aware language on electronic evidence and digital service of summons. Section 163, in operative effect, is yesterday's Section 144 under a new number.

That continuity matters because the Supreme Court's interpretive jurisprudence on Section 144 CrPC, developed across two decisive judgements in Madhu Limaye v. State of Maharashtra (1971) 2 SCC 297 and Anuradha Bhasin v. Union of India (2020) 3 SCC 637, did not lapse with the new statute. The proportionality test, the publication requirement, and the judicial review safeguards travel intact into any Section 163 BNSS analysis. Section 531 BNSS, the repeal and savings clause, preserves pending proceedings under the old code, but the constitutional law developed under Section 144 CrPC binds the new section as a matter of binding precedent.

What the Court Held

The constitutional contours of magisterial prohibitory power were settled in two judgements separated by 49 years.

In Madhu Limaye v. State of Maharashtra (1971) 2 SCC 297, a Constitution Bench of seven judges, speaking through Hidayatullah CJ, held that the power under Section 144 CrPC was constitutional but bounded by the doctrine of reasonable restrictions under Articles 19(2) to 19(6) of the Constitution. The Court rejected the petitioners' broad challenge that the section was unconstitutionally vague, but laid down four binding propositions: (i) the power is preventive, not punitive; (ii) the apprehension of danger must be present and proximate, not remote or speculative; (iii) the order must specify the material facts on which it was passed; and (iv) the order is amenable to judicial review through revision and writ jurisdiction. The judgement was the first authoritative reading of the section after the 1973 redrafting and it has been followed in every subsequent constitutional challenge.

In Anuradha Bhasin v. Union of India (2020) 3 SCC 637, a three-judge bench led by Justice N V Ramana applied and extended Madhu Limaye to internet shutdowns and movement restrictions imposed in Jammu and Kashmir after the abrogation of Article 370 by the Constitution Order 272 of 5 August 2019. The Court held that the freedom of speech and expression under Article 19(1)(a) and the freedom to carry on any trade or commerce under Article 19(1)(g) extended to the medium of the internet. Orders restricting internet access were subject to the test of proportionality, must be published, must be temporary, must be subject to periodic review, and could not be used to impose an indefinite suspension. The Court directed the State to publish all orders under Section 144 CrPC in the public domain forthwith, so that aggrieved persons could challenge them.

The combined holding for Section 163 BNSS analysis is straightforward. The provision is constitutional but cabined. The Magistrate's discretion is fully reviewable. The order must be reasoned, must be published, and cannot be used to throttle digital communication for unbounded periods. Any internet shutdown invoked through Section 163 BNSS must additionally satisfy the requirements of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017, framed under Section 7 of the Indian Telegraph Act 1885, including five-working-day review by a designated committee.

Reasoning

The proportionality test from Madhu Limaye

The Constitution Bench in Madhu Limaye treated the Magistrate's power as a delegated legislative grant subject to proportionality discipline. Because the section restricted liberty, movement and peaceful assembly, the order itself must satisfy three requirements: (a) serve a legitimate state aim listed in Articles 19(2) to 19(6); (b) be necessary in a democratic society, meaning the least restrictive alternative available; and (c) be proportionate to the harm prevented. A district-wide ban where a ward-level ban would suffice fails the necessity prong.

The Court also drew a sharp line between Section 144 CrPC (preventive, to forestall an apprehended breach) and Section 129 CrPC (reactive, addressing an unlawful assembly already in progress). Conflation of the two had led to sweeping orders being used for routine policing problems. That distinction continues under Section 163 BNSS and Section 148 BNSS, and counsel should plead it whenever a prohibitory order substitutes for ordinary law enforcement.

Anuradha Bhasin and the digital extension

The 2020 judgement is the modern fulcrum. The Court in Anuradha Bhasin held that the right to access information through the internet was derivative of Article 19(1)(a) and that any restriction had to satisfy proportionality, defined by the Court using the four-pronged test formulated in Modern Dental College and Research Centre v. State of Madhya Pradesh (2016) 7 SCC 353: legitimate aim, suitability, necessity, and balancing. The Court further directed that:

• All orders under Section 144 CrPC must be published in the public domain forthwith.
• The State must place the underlying material on record before any Court reviewing the order.
• Indefinite suspension of internet services is impermissible; orders must be temporary.
• Periodic review by a review committee constituted under the Telecommunications Suspension Rules 2017 is mandatory at intervals not exceeding 7 working days.

The Court refused to quash the specific Jammu and Kashmir orders that were before it, instead remanding to the review committee. But it stamped a constitutional cap on the use of prohibitory power against digital communication that survives the migration from Section 144 CrPC to Section 163 BNSS. Between July 2024 and April 2025, High Courts in Manipur, Punjab and Haryana have applied the Bhasin framework to test internet shutdown orders issued under Section 163 BNSS, treating the migration as a renumbering rather than a substantive change.

Duration limits and the extension trap

Section 163(6) BNSS, mirroring Section 144(4) CrPC, fixes a 2-month outer limit on any order issued by a Magistrate. The State Government may, if it considers necessary for preventing danger to human life, health or safety or for preventing a riot or affray, extend the duration for a further period not exceeding 6 months in the aggregate from the original date.

Repeated re-issuance to circumvent the 6-month cap is a long-standing problem. In Anuradha Bhasin, the Court flagged fresh weekly orders each within the 2-month limit but cumulatively running over a year. The Court held the test is substantive, not formal. Manipur, Haryana, and Rajasthan State Governments have, between 2023 and 2025, faced adverse High Court orders for this practice. Section 163 BNSS preserves the duration provisions, so the caution applies to orders dated 1 July 2024 and after.

Practical Takeaways

The practical effects of Section 163 BNSS, effective 1 July 2024, reach citizens, businesses, journalists, and counsel in distinct ways. A snapshot of what each category should know follows.

Comparative table: Section 144 CrPC vs Section 163 BNSS

What citizens should do when an order is issued

1. Read the operative portion carefully. A Section 163 BNSS order must specify (a) the act to be abstained from, (b) the geographical area, (c) the duration not exceeding 2 months, and (d) the material facts forming the Magistrate's opinion. An order silent on any of these four limbs is vulnerable to challenge under Madhu Limaye (1971) 2 SCC 297.

1. Locate the published copy. Following Anuradha Bhasin, every Section 163 BNSS order must be published in the public domain. District Collectorate websites in 22 states and union territories now host these orders under a dedicated tab. If the order has not been published, the failure of publication is itself a ground for challenge in writ jurisdiction.

1. Note the start and end dates. If the order is purportedly extended beyond 6 months in the aggregate by mechanical re-issuance, raise the Anuradha Bhasin objection in any subsequent prosecution under Section 223 of the Bharatiya Nyaya Sanhita 2023 (the successor to Section 188 IPC).

What businesses and lawful assemblies should do

• Internet-dependent businesses operating in shutdown-prone districts should maintain offline contingency protocols and document revenue losses contemporaneously. Compensation jurisprudence for shutdown losses remains thin; the Telecommunications Suspension Rules 2017 do not provide for damages, and the BNSS itself contains no compensation scheme.

• Trade associations planning processions or rallies should obtain prior permission letters under the relevant municipal or police statute and cross-check whether a Section 163 BNSS order is in force on the date and route concerned. Disobedience of a Section 163 BNSS order is punishable under Section 223 of the Bharatiya Nyaya Sanhita 2023 with simple imprisonment that may extend to 6 months, fine up to Rs 2,500, or both.

• NRIs returning to India during politically sensitive periods should track district-level prohibitory orders before booking travel, especially around general election dates and communal flashpoints. For the tax and remittance side of cross-border decisions that often accompany these visits, our NRI Tax Calculator and Repatriation Calculator cover the financial calculus that runs in parallel to legal exposure.

What journalists and lawyers should know

• Reporting from within a Section 163 BNSS zone is not by itself an offence. The order regulates conduct, not narration. The Press Council of India guidelines on conflict reporting and the Supreme Court's holding in Romesh Thappar v. State of Madras AIR 1950 SC 124 continue to protect editorial activity unless the order expressly bars congregation of journalists in the specified area.

• Counsel representing clients accused under Section 223 BNS 2023 for breach of a Section 163 BNSS order should first challenge the validity of the underlying order. If the order itself fails the Madhu Limaye and Anuradha Bhasin tests, the prosecution collapses for want of a valid order to disobey.

• For procedural challenges, the criminal revision route under Section 438 BNSS lies before the Sessions Court. Writ jurisdiction under Article 226 of the Constitution remains the broader and more frequently used remedy when constitutional questions of proportionality or freedom of speech arise. The companion explainer on Section 197 CrPC sanction for prosecution of public servants covers a parallel procedural safeguard that lawyers should bear in mind when the executive officer issuing the order is himself sought to be proceeded against.

Statute text and authoritative sources

The full text of the BNSS, including Section 163 in Chapter XI, is on the Government of India's India Code portal. The Madhu Limaye and Anuradha Bhasin judgements are on Indian Kanoon. Rely on these primary sources for any quotation reproduced in pleadings or news copy.

FAQ

Has Section 144 CrPC been repealed?

Yes. The Code of Criminal Procedure 1973 was repealed in toto by Section 531 of the Bharatiya Nagarik Suraksha Sanhita 2023, which came into force on 1 July 2024. Section 144 CrPC therefore has no operative life for orders issued on or after that date. Prosecutions, revisions, and writ petitions concerning orders issued before 1 July 2024 continue to be governed by Section 144 CrPC by virtue of the savings clause in Section 531(2) BNSS. New orders issued from 1 July 2024 onwards must cite Section 163 BNSS as the source of power.

Does the Anuradha Bhasin judgement still apply to Section 163 BNSS orders?

Yes. The 2020 judgement is binding precedent on the constitutional law of prohibitory orders. Because Section 163 BNSS reproduces the operative text of Section 144 CrPC with no substantive amendment, the proportionality, publication, and review safeguards laid down in Anuradha Bhasin apply with equal force to the new section. High Courts in Manipur and Punjab, between July 2024 and April 2025, have already applied the framework to Section 163 BNSS orders and quashed orders failing the necessity prong.

Can an Executive Magistrate ban internet services under Section 163 BNSS?

The text of Section 163 BNSS is broad enough to support such an order in principle, but in practice internet shutdowns are issued under the Temporary Suspension of Telecom Services Rules 2017, framed under Section 7 of the Indian Telegraph Act 1885, not under Section 163 BNSS alone. After Anuradha Bhasin, the dual-track requirement is that any shutdown must satisfy the proportionality test, must be temporary, must be published, and must be subject to review by a designated committee within 5 working days. An Executive Magistrate cannot invoke Section 163 BNSS to bypass these safeguards.

What is the maximum duration of a Section 163 BNSS order?

The Magistrate's order operates for 2 months from the date of issue. The State Government may extend it for a further period not exceeding 6 months in the aggregate from the original date, only if it considers extension necessary for preventing danger to human life, health or safety or for preventing a riot or affray. Mechanical re-issuance of fresh orders to circumvent the 6-month cap is liable to be quashed under the Anuradha Bhasin holding on substance over form.

What is the punishment for violating a Section 163 BNSS order?

Disobedience of an order duly promulgated under Section 163 BNSS is punishable under Section 223 of the Bharatiya Nyaya Sanhita 2023 (the penal code that replaced the Indian Penal Code on 1 July 2024). The punishment is simple imprisonment for a term that may extend to 6 months, or fine up to Rs 2,500, or both. If the disobedience tends to cause danger to human life, health or safety or causes or tends to cause a riot or affray, the punishment may extend to 1 year of imprisonment or fine up to Rs 5,000, or both.

Can a Section 163 BNSS order be challenged in the High Court?

Yes. Two routes are available: (i) a criminal revision before the Sessions Court under Section 438 BNSS, and (ii) a writ petition before the High Court under Article 226 of the Constitution. The writ route is generally preferred for orders raising constitutional issues such as proportionality, publication failure, or freedom of speech. Following Anuradha Bhasin, the High Court will examine whether the order satisfies the four-pronged proportionality test of legitimate aim, suitability, necessity, and balancing.

Does Section 163 BNSS apply to Jammu and Kashmir?

Yes. The Jammu and Kashmir Reorganisation Act 2019 extended the central CrPC to the Union Territory of Jammu and Kashmir with effect from 31 October 2019. With BNSS commencement on 1 July 2024, Section 163 BNSS now governs prohibitory orders in Jammu and Kashmir on the same footing as the rest of India, subject to the safeguards laid down in Anuradha Bhasin, which was itself a case arising from the Union Territory and continues to be binding precedent on the executive authority there.