The Supreme Court of India has been moved by a writ petition challenging the constitutional validity of Section 172 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the recently enacted legislation that replaces the colonial-era Code of Criminal Procedure. The petition, filed by a B.Tech student named Samriddhi Das, seeks to dismantle the legal framework that allegedly grants police officers unfettered discretion to detain or remove citizens without necessary procedural safeguards. This legal challenge follows widespread public frustration surrounding a protest on October 10 at Jantar Mantar, where participants—including students, legal professionals, and activists—faced mass detentions while attempting to express dissent against the Chief Election Commissioner.

The petitioner contends that the provisions of Section 172 essentially provide a blank check for administrative overreach. By empowering police to unilaterally decide when to remove or detain individuals for allegedly disregarding "lawful directions," the law effectively bypasses the constitutional protections usually afforded to citizens under Article 21, which guarantees the right to life and personal liberty. The petition highlights that the events of October 10 were marked by the indiscriminate interception of demonstrators, some of whom were reportedly removed from public transport or prevented from reaching the protest site entirely. Beyond the specific incident, the plea marks a significant confrontation between individual civil liberties and the state’s evolving powers of preventive policing under the new criminal code.

The Breadth of Police Discretion

At the center of the dispute is the ambiguity of the language within Section 172 of the BNSS. The provision allows officers to issue directions in the discharge of their duties and authorizes the detention or removal of any person who "ignores" or "disregards" such orders. Unlike other sections of the BNSS that necessitate a threshold of " reasonable apprehension of a cognizable offence ," Section 172 remains notably open-ended. The petitioner argues that the lack of clear definitions for terms such as " lawful directions " and "petty cases" creates a vacuum in which police officers can, and do, act on subjective satisfaction .

The petitioner submitted that, “taken together, these measures amount to a prior restraint on a peaceful, announced demonstration against a public authority; that they fail the test of proportionality; and that Section 172 BNSS, to the extent it enables en masse detention on the subjective satisfaction of the police, is manifestly arbitrary and violates Articles 14, 19(1)(a), 19(1)(b), 19(1)(d) and 21.”

This challenge is particularly pertinent because the provision does not require police to maintain records of why a specific direction was issued or why a detention was necessary. In the absence of a mandate to record reasons, the petitioner argues that the law creates an environment where discriminatory enforcement remains unchecked by judicial oversight. For many, the transition to the BNSS was intended to modernize the justice system, but critics of the new law argue that it has instead introduced mechanisms that sidestep the rigorous standards of arrest and detention established over decades of jurisprudence.

Operational Consequences of Prohibitory Measures

The protest at Jantar Mantar was not met with Section 172 alone; it was accompanied by a series of restrictive measures that paralyzed movement across parts of the city. The closure of multiple Metro stations, the cancellation of trains, and the suspension of mobile internet services were all cited in the petition as part of a broader, disproportionate response to public dissent. According to the petition, the authorities utilized Section 163 of the BNSS to issue sweeping prohibitory orders, which, when combined with the powers in Section 172, resulted in a climate of fear and intimidation that discouraged citizens from exercising their democratic right to protest.

The plea stresses that the police cannot bypass fundamental constitutional safeguards simply by rebranding an act of arrest as "detention" or "removal." Under existing constitutional safeguards, individuals who are arrested must be presented before a Magistrate, and they have the right to counsel and representation. By contrast, Section 172 appears to offer an alternative path for the state to manage public order without these mandatory hurdles. The petitioner points out that in so-called "petty cases," the police can effectively detain individuals for up to 24 hours without any judicial involvement, a period long enough to effectively suppress a peaceful assembly and dissipate momentum before any legal challenge can be mounted.

Pursuing Accountability and Institutional Reform

The litigation seeks more than just a declaration of unconstitutionality; it asks the Supreme Court to intervene in the way public order is maintained during times of civil unrest. The petition includes requests for the preservation of all electronic evidence related to the October 10 incident, including CCTV and drone footage, body-worn camera recordings, and police control room logs. Such data, the petitioner argues, is essential for identifying the extent of the detentions and ensuring that those who were unlawfully detained receive appropriate compensation.

Furthermore, the plea calls for the establishment of binding guidelines for peaceful assemblies, advocating for a system where organizers need only provide intimation to the authorities rather than seek prior permission. The petitioner argues that the current "permission-based" framework is inherently weighted against the citizenry. By requiring such stringent conditions for even the most basic forms of protest, the authorities essentially hold the power to pre-approve only those demonstrations that do not challenge their power or policy.

As the matter proceeds, the petitioner has requested an interim relief order to restrain the Delhi Police Commissioner from invoking Section 172 of the BNSS while the court evaluates the constitutional merits of the challenge. The success of this petition could signify a major pivot in how the new criminal legislation is applied across the country, potentially compelling the state to introduce more transparent mechanisms for policing public spaces. For now, the case sits as a high-stakes test of the new legal framework’s alignment with the fundamental rights enshrined in the Constitution of India, leaving both legal practitioners and civil society groups awaiting the Supreme Court’s initial response. The outcome will likely determine the threshold of power that police agencies can exercise under the modern criminal code during the upcoming season of public discourse and political activity.