Madras HC Seeks Response on Police Sanction Challenge

In a development that could reshape police accountability in Tamil Nadu, the Madras High Court has directed the State Government to respond to a writ petition challenging a controversial notification. Issued by the Home Department, the impugned order mandates prior governmental sanction before any court can take cognizance of offenses allegedly committed by police personnel "charged with the maintenance of public order." Petitioner advocate Vivekanandan A argues that this blanket protection is manifestly arbitrary , ultra vires Section 218 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and violative of Articles 14 and 21 of the Constitution. The bench, comprising Justices G Jayachandran and KK Ramakrishnan, has issued notice to the Home (Police) Department and the Director General of Police, signaling judicial scrutiny of what critics call an overreach shielding routine policing from prosecution.

This case, titled Vivekanandan A v. State of Tamil Nadu and Another (WP(MD) No. 4549 of 2026), highlights tensions between operational protections for law enforcement and citizens' fundamental rights amid India's transition to the new criminal procedure codes.

The Notification Under Fire

The notification in question extends the safeguard of prior sanction—originally designed for members of the Armed Forces of the Union—to all classes and categories of police personnel of the Tamil Nadu Police charged with the maintenance of public order, wherever they may be serving . This stems from Section 218 of the BNSS, which replaced Section 197 of the Code of Criminal Procedure (CrPC), 1973, effective July 1, 2024.

Under Section 218(2), no court shall take cognizance of an offense by armed forces personnel acting in discharge of official duties without prior Central Government sanction. Sub-section (3) empowers state governments to issue similar notifications for officers "charged with the maintenance of public order." The Tamil Nadu Home Department invoked this to cover its entire police force engaged in such duties, ostensibly to protect officers from frivolous litigation during tense situations.

However, the petitioner contends this misapplies a directory power meant for exceptional scenarios, transforming it into a permanent shield. As Vivekanandan submitted, "this power was given to the States to extend armed forces like protection for extraordinary public order situations and not as a blanket tool."

Petitioner's Multifaceted Challenge

Filed by advocate Vivekanandan before the Madurai Bench, the plea meticulously dismantles the notification on multiple grounds. Central to the argument is its ultra vires nature: it equates civil servants under Entry 2 of List II (State Police) of the Seventh Schedule with 'Armed Forces of the Union' under Entry 2 of List I, per the petition.

The plea draws a sharp distinction: "there is a distinction between 'maintenance of public order' and routine 'law and order'." It argues the notification grants blanket protection to all officers, irrespective of the nature of their duty, treating a routine station constable as an equal to an elite operative without any Intelligible Differentia . This, it claims, creates "an irrational parity," rendering the measure "manifestly arbitrary and... violating Article 14 of the Constitution."

Further, the petition invokes the Doctrine of Proportionality , asserting the State has used a directory power to "permanently override the mandatory Removability Test established by Parliament in Section 218(1)." The Removability Test requires assessing if the act was in discharge of duty before sanction; here, it's bypassed wholesale.

On the rights front, infringing police accountability allegedly violates citizens' Article 21 rights to life and liberty, including access to justice free from impunity. The relief sought: declare the notification unconstitutional, null, void, and ultra vires.

Bench Issues Notice

The division bench of Justice G Jayachandran and Justice KK Ramakrishnan heard initial arguments and directed the respondents—the State, Home (Police) Department, and DGP—to file counters. This procedural step underscores the court's intent to delve deeper, potentially staying the notification's operation pending adjudication.

Dissecting the Legal Arguments

At its core, the challenge tests Article 14's equal protection mandate. Courts, including the Supreme Court in State of West Bengal v. Anwar Ali Sarkar (1952) and more recently Deepak Gupta v. State of U.P. (2024 BNSS contexts), have struck down classifications lacking nexus to a permissible object. Here, lumping all police under "public order" without differentiation fails the twin test of intelligible differentia and rational relation to the objective.

The ultra vires claim hinges on legislative intent. Section 218(3) mirrors CrPC 197(3), historically used sparingly for paramilitary or riot control in extraordinary breakdowns (e.g., notifications during communal riots). Tamil Nadu's sweep—including desk officers or traffic police tangentially linked to "public order"—stretches this, akin to challenges in P. Sirajuddin v. State of Madras (1970), where the SC cautioned against sanction as a shield for misconduct.

Doctrine of Proportionality , as in Modern Dental College v. State of MP (2016), requires measures to be suitable, necessary, and balanced. A blanket rule disproportionately burdens citizens' remedy rights, overriding BNSS's accountability framework.

Article 21 linkage is potent: unchecked police power erodes due process, echoing D.K. Basu v. State of West Bengal (1997) on custodial accountability.

Broader Constitutional Ramifications

This petition arrives amid BNSS implementation teething issues. Several states have issued analogous notifications (e.g., Uttar Pradesh, Maharashtra), inviting copycat challenges. A favorable ruling could prompt Supreme Court review, clarifying "maintenance of public order" under federalism—distinguishing state police from Union armed forces.

Comparatively, armed forces protections (under UAPA or AFSPA) apply to war-like zones; extending this to urban policing risks normalizing impunity, as seen in NHRC reports on Tamil Nadu custodial deaths.

Implications for Legal Practice

For prosecutors, this means routine cases (e.g., assault by constables during protests) require sanction navigation, delaying trials and inviting Section 218 BNSS dismissals. Defense counsel gain ammunition for early discharges, but at what cost to deterrence?

Human rights litigators and public interest lawyers may file interventions, amplifying Art 21 claims. Firms handling service matters could see spikes in police misconduct defenses. Policymakers face pressure for nuanced notifications—perhaps tiered sanctions based on rank/duty type.

In Tamil Nadu's context, with recent protests (e.g., against Sterlite or farmers' stirs), this tests operational vs. rights balance. A struck-down notification might embolden direct FIRs, streamlining justice but risking officer hesitation.

Nationally, it underscores BNSS gaps: Parliament intended safeguards, not impunity. Legal professionals should monitor for SLP filings post-response.

What Lies Ahead

The State's counter will likely defend the notification as essential for "public order" amid rising challenges (cite stats on police cases). Expect hearings dissecting notification scope and precedents like Inspector of Police v. Battenapatla Venkata Ratnam (1994).

This writ could redefine sanction thresholds, bolstering or bridling police autonomy. For now, it spotlights a perennial debate: protection for the protector, or peril for the protected?