Notice has gone out on the challenge to Section 172 BNSS, but only on the new provision: the Supreme Court has said it will read the police power to detain or remove against the Constitution, without reopening the older law.
New Delhi: Taking up the petitions that challenge the constitutional validity of Section 172 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the Supreme Court on Thursday issued notice, with Chief Justice of India Surya Kant calling the section a provision of preventive detention and limiting the notice to the new provision [Samriddhi Das v. Union of India and Ors. and connected matters].
Chief Justice of India Surya Kant and Justice Joymalya Bagchi heard the batch, which arises from the October 10 protests in Delhi against Chief Election Commissioner Gyanesh Kumar. Among the counsel for the petitioners were Senior Advocates Gopal Sankaranarayanan and N. Hariharan; Solicitor General Tushar Mehta appeared for the authorities.
Why the notice stops at the new provision
One set of petitioners tried to separate the new section from older case law. Their counsel said: “Madhu Limaye and all those cases relate to the earlier provision. This is Section 172. There is a difference.” The Chief Justice drew the boundary himself: “Our notice is restricted to the new provision.”
Counsel was alluding to Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, the Supreme Court’s 1970 decision in which a seven-judge Bench upheld Section 144 of the Code of Criminal Procedure, 1898, the power to issue prohibitory orders now found in Section 163 of the BNSS. Section 172 is different in kind. It compels compliance with police directions given in the course of preventive action and allows detention or removal of anyone who resists, refuses, ignores or disregards them, and the old Code has no direct counterpart.
“A provision of preventive detention”
Senior Advocate N. Hariharan had told the Bench that the section was also under attack for vagueness. The Chief Justice responded:
“Section 172 is also being challenged in its entirety. It is a provision of preventive detention, and the Court needs to read it in light of the provisions of the Constitution as well.”
“Please don’t be dismissive”
Pressing for both provisions to be examined together, Sankaranarayanan said:
“I will give the reason why both provisions have to be considered. The system of constitutional law has gone through a huge upheaval in the last 15 years. Please don’t be dismissive about it.”
Justice Bagchi answered, “We are not.” The Solicitor General took exception to the phrasing: “Can we use such words?” Sankaranarayanan then gave his reason for seeking notice, namely “because of the manner in which this is being utilised as a licence against Article 21, in the way it has been read.”
A request on the Section 163 notification
The Solicitor General asked that the petitioners file the Section 163 notification on which they rely, noting that the Delhi Police reply did not contain it. Senior Advocate Menaka Guruswamy asked for a direction that the notification be placed on record. Counsel for the petitioners also submitted that the Court has held that contiguous areas cannot be notified under Section 163.
What the lead petition says
The lead petitioner, B.Tech student Samriddhi Das, says she was on her way to the October 10 protest but could not reach the site. She argues that Section 172 offends Articles 14, 19 and 21 because detention depends on a police officer’s subjective view, with no threshold, no recorded reasons and no time-bound production before a Magistrate. Terms such as “lawful directions”, “remove” and “petty cases” are undefined, she says, and invite arbitrary enforcement.
The petition sets the provision beside Sections 35 and 170 of the BNSS, which lay down conditions for arrest, and contends that the words “detain or remove” bypass those safeguards as well as the ones in Article 22. It asks for a declaration that the provision is unconstitutional or, in the alternative, that it be read down, with compensation for those detained on October 10 and an interim restraint on its use.
How the batch reached Thursday
The Supreme Court’s October 9 order, that there be no complete prohibition on Metro and train services in Delhi, preceded the October 10 protests. Petitioners allege that thousands were detained or stopped from reaching Jantar Mantar that day. At a special sitting on October 11, Justices Bagchi and V. Mohana directed, among other things, that no one be illegally detained and that a Section 163 notice board near the Court be removed. On Thursday, notice was issued in all the protest-related matters, and both sides were asked to appoint nodal counsel to identify the overlapping issues.
The matter is at the notice stage. The Union is yet to file its response, and the Court has expressed no view on the validity of the provision.
Case Title: Samriddhi Das v. Union of India and Ors. [Diary No. 64055/2026] and connected matters
Bench: CJI Surya Kant and Justice Joymalya Bagchi
Date of Hearing: October 15, 2026
Appearances: Senior Advocates Gopal Sankaranarayanan, N. Hariharan and Dr Menaka Guruswamy among counsel for the petitioners; Solicitor General Tushar Mehta for the authorities