Critically evaluate how **Section 163 of the BNSS** is used to regulate public assemblies. Are blanket prohibitory orders consistent with the test of proportionality?

Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 replaced Section 144 CrPC. It lets a magistrate issue immediate orders in "urgent cases of nuisance or apprehended danger" [1]. It is a valid preventive tool, but when it is used routinely or as a blanket ban, it often fails the proportionality test.

Merits of Section 163

• Preventive policing: It allows quick limits on gatherings when violence or obstruction is feared. The BNSS keeps the CrPC's public-order powers [2].
• Balancing competing rights: In MKSS v. Union of India (2018), the SC allowed the state to regulate the time, place and manner of protests. This protects commuters and residents [6].
• Built-in judicial check: Anuradha Bhasin (2020) requires every order to state its material facts and to show an emergency-like danger [4].

Concerns in practice

• Routinisation: Delhi Police notified about twenty Section 163 orders between January and September 2026, many repeated for the same area [3]. The SC has called repetitive orders an abuse of power [4].
• Over-broad area: A district-wide order for a protest at one site also stops unrelated gatherings.
• Notice becomes permission: Assemblies are barred "without permission". UN General Comment 37 says notification must not turn into authorisation, and spontaneous protests should not need advance notice [7].
• Criminalising procedure: Failing to give notice cannot, by itself, justify breaking up a protest or arresting people [7].
• Opacity: If the reasons for an order are not published, it is hard to challenge in court. Bhasin ordered such orders to be published [4].

Blanket orders vs proportionality

Legitimate aim → Rational nexus → Least restrictive means → Balancing
 (public order)        ✓            ✗ blanket ban          ✗ chills all dissent

Fig: Where blanket orders fail the proportionality test

• The Court applied this four-part test to Section 144 restrictions in Bhasin [5].
• Blanket orders usually pass the "aim" test but fail necessity. Targeted, time-bound orders would achieve the same aim.
• MKSS struck down the absolute ban at Jantar Mantar and chose a regulated protest space instead [6].

In sum, Section 163 is needed, but it should work like a scalpel, not a blanket. Orders that are published, time-bound and limited to the site, along with a notice system that is approved by default, would follow Bhasin and General Comment 37. That would protect the Article 19(1)(b) right to assemble peaceably while still keeping public order.