Anuradha Bhasin: limits on 163 orders

Section 163 BNSS is the widest power an Executive Magistrate holds, and these two cases are the fence around it. Between them they answer the three questions every prohibitory order must survive: was there really an emergency, was the restriction tailored to it, and could an affected citizen find the order and challenge it? An order that fails any of the three is not a strong order — it is a liability with your signature on it.

The case

Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, arose from the communications shutdown in Jammu & Kashmir after August 2019, challenged by a newspaper editor. The Supreme Court held that the s.144 power is both preventive and remedial, but is conditioned on an emergency-grade danger — an urgent situation of the kind the section names, not general apprehension or administrative convenience. It cannot be used to suppress the legitimate expression of opinion or grievance, cannot be indefinite in time or overbroad in territory or terms, and must satisfy proportionality: the magistrate must choose the least restrictive measure that answers the threat. Crucially, all such orders must be published — an unpublished restriction that citizens cannot see or challenge is constitutionally infirm — and repetitive orders, issued back-to-back to keep a restriction alive past its statutory life, are an abuse of power. The Court also recognised that speech and trade conducted over the internet carry Article 19(1)(a) and 19(1)(g) protection, so internet restrictions face the same tests.

In Re: Ramlila Maidan Incident, (2012) 5 SCC 1 (taken up suo motu; decided 23-02-2012), concerned the midnight police action on a sleeping crowd at Ramlila Maidan after a s.144 order was imposed at night. The Court held that a s.144 order requires material facts showing an imminent threat, recorded by the magistrate; the midnight eviction of sleeping people was an abuse of power, and the State was held accountable for the consequences.

The rule you apply

Before signing a s.163 order, put four things on the file in your own hand. The material: the specific police report, intelligence input or event that shows an imminent danger — recited in the order, not merely “in view of the prevailing law and order situation”. The tailoring: the narrowest area, the shortest duration, and the mildest restriction that actually meets the threat; if a ban on assemblies of five or more near one junction for three days will do, an area-wide fifteen-day omnibus order will not survive. The publication: gazette or notification as prescribed, plus real-world proclamation — dandora, local press, the district website — so that the people bound by it can know it and challenge it. The end date: every order carries one; when it expires, a fresh order needs fresh material and fresh reasoning, not a photocopy of the last one.

Where it bites in your work

• Festival and procession season. The recurring temptation is a standing 163 order re-issued every fortnight covering the whole jurisdiction. Anuradha Bhasin condemns exactly this; each order must stand on current material.
• Protests and dharnas. An order aimed at preventing violence is lawful; an order whose real object is to stop criticism of the administration is not. Draft against the danger, never against the message.
• Exam-time and event-time restrictions (hall-ticket zones, loudspeaker limits, assembly bans). These survive when narrowly drawn around the venue and the hours; blanket district-wide versions fall.
• Internet or communication restriction proposals. Where you are asked to recommend or support suspension of services, remember that the shutdown rules and Anuradha Bhasin’s proportionality-and-publication discipline both apply; an unreasoned, unpublished, open-ended shutdown is the textbook violation.

How officers get it wrong

The most common sin is the template order — a pre-drafted 163 with blanks for dates, reciting boilerplate apprehension. It fails the material-facts test of Ramlila Maidan on its face. Next is perpetuity by instalments: renewing an expiring order mechanically so that a two-month restriction quietly becomes two years. Third, overbreadth: prohibiting “all assemblies, processions, sloganeering and use of loudspeakers” across an entire division to manage a threat at one village. Fourth, stealth: orders that exist in the office file but were never published or proclaimed, then enforced at midnight — the precise combination Ramlila Maidan punished. Fifth, wrong target: using 163 to silence a rival faction’s meeting while permitting the other’s; selective operation is strong evidence that the order suppresses expression rather than danger.

Questions you’ll actually get

“SP office wants a blanket 163 across the division for the whole festival month. Can I sign it?” Not in that form. Ask for the specific inputs: which villages, which dates, what threat. Issue orders limited to those places and days, each reciting its material. A month-long division-wide order on general apprehension is exactly what Anuradha Bhasin strikes down.

“The previous order expires tomorrow and tensions continue. Can I just re-issue it?” You can issue a fresh order only on fresh application of mind — current reports, current threat, reasons recorded again. Copy-paste renewal is the “repetitive orders” abuse the Supreme Court named.

“Do I really have to publish it? Won’t that alert troublemakers?” Yes, you must. An order nobody can see cannot be obeyed or challenged, and unpublished orders enforced by surprise are what made Ramlila Maidan a constitutional scandal. Publication is part of the order’s validity, not a courtesy.