Uttarakhand High Court Questions Section 172 BNSS Protest Detention Legality

• On October 10, 2026, individuals traveling to a protest at Jantar Mantar were detained in multiple states before reaching Delhi.
• Delhi police had issued prohibitory orders under Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023, for the planned assembly.
• The State justified these pre-emptive detentions by citing Section 172 of the BNSS, a claim that has drawn significant scrutiny.
• Section 172(1) BNSS is intended to enforce a police officer's lawful directions within a specific chapter, not to enforce a magistrate's order from a different chapter against individuals far from the covered location.
• The Uttarakhand High Court's inquiry into an earlier detention prompted the State to articulate its reliance on Section 172 BNSS.

Lawyers advising clients on protest rights or challenging detentions must scrutinize the application of Section 172 BNSS, particularly when used to detain individuals pre-emptively or outside the direct scope of a police officer's immediate directions, as authorities may be overstepping their powers under the new Sanhita.

On October 10, 2026, a planned protest at Delhi's Jantar Mantar saw numerous participants intercepted and detained across various states before they could even reach the capital. This pre-emptive action involved individuals being taken off trains at railway platforms, effectively cutting short their journey to the demonstration site. For instance, in Madhya Pradesh alone, at least 30 people were detained in cities such as Bhopal, Gwalior, and Itarsi, preventing their travel to Delhi.

In preparation for the scheduled event, Delhi police had implemented prohibitory orders under Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). This specific section of the BNSS prohibits gatherings of five or more individuals, processions, and dharnas unless prior written permission has been obtained. The State's justification for these widespread detentions, often occurring far from the protest's intended location, has centered on its interpretation and application of Section 172 BNSS.

The State's reliance on Section 172 of the Bharatiya Nagarik Suraksha Sanhita 2023 to legitimize these detentions came to light following an inquiry by the Uttarakhand High Court. The court had questioned the legal grounds for detaining an activist at Rishikesh who was en route to an earlier Jantar Mantar protest. In response, the State cited Section 172 BNSS as its authority, a justification that has since drawn considerable scrutiny regarding its proper scope and application.

Section 172(1) of the BNSS stipulates that all persons are bound to "conform to the lawful directions of a police officer given in fulfilment of any of his duty under this Chapter." Critics argue that the intended BNSS Section 172 scope is narrowly defined, empowering police officers to enforce their own directions strictly within the confines of a specific chapter of the Sanhita. However, the current practice, exemplified by the Jantar Mantar protest detentions, sees this provision being used to enforce a magistrate's order, which typically falls under a different chapter of the law, against individuals who have not yet arrived at the location covered by that order.

The current interpretation and application of Section 172 BNSS raise significant questions about the extent of police power protest detention in India, particularly under the new legal framework. The State's use of this section to detain individuals pre-emptively, often hundreds of kilometers from the protest site and based on a magistrate's order rather than a police officer's immediate, chapter-specific direction, appears to stretch the provision beyond its statutory intent. This broad application effectively allows for the enforcement of prohibitory orders, such as those under Section 163 BNSS, against individuals who are not yet within the geographical or temporal scope of the order itself.

Lawyers advising clients on protest rights or challenging detentions must scrutinize the application of Section 172 BNSS, particularly when used to detain individuals pre-emptively or outside the direct scope of a police officer's immediate directions, as authorities may be overstepping their powers under the new Sanhita. This could form the basis for legal challenges against such detentions, especially given the precedent set by the Uttarakhand High Court BNSS inquiry. The legality of these detentions hinges on whether Section 172 can genuinely be interpreted to grant such expansive powers, or if it is being misapplied to curtail fundamental rights to assembly and protest.

Lawyers advising clients on protest rights or challenging detentions must scrutinize the application of Section 172 BNSS, particularly when used to detain individuals pre-emptively or outside the direct scope of a police officer's immediate directions, as authorities may be overstepping their powers under the new Sanhita. This could form the basis for legal challenges against such detentions.

Source: Original reporting on the BNSS interpretation.