In a significant directive aimed at curbing the arbitrary use of prohibitory powers, the Punjab and Haryana High Court has instructed district magistrates (DMs) and sub-divisional magistrates (SDMs) in Punjab to stop applying Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) in a "mechanical" manner. The court emphasized that such orders must be well-reasoned "speaking orders" passed with due application of mind.
Court's Directive on Exercise of Emergent Powers
A division bench comprising Chief Justice Sheel Nagu and Justice Sanjiv Berry issued these binding instructions while disposing of a Public Interest Litigation (PIL). The bench explicitly advised all district magistrates in Punjab to ensure strict compliance with the provisions of Section 163 BNSS, which replaces the erstwhile Section 144 of the Code of Criminal Procedure (CrPC).
The court stated, "Whenever the occasion arises to exercise the said power in emergent cases of nuisance and apprehended danger, due care and caution should be exercised while passing orders judiciously." It further ordered that the statutory provision "must be followed to the hilt" and must not be applied without proper thought. The magistrates are now mandated to not only apply their minds but also pass a detailed speaking order each time this emergent power is invoked.
PIL Highlighted Indiscriminate Application
The PIL was filed by Harmilap Singh Grewal from Bathinda. The petition raised a critical public concern, alleging that the power conferred upon district magistrates under Section 163 BNSS, 2023 was being used indiscriminately and mechanically across Punjab. The petitioner cited specific instances where, in various districts, back-to-back orders for spells of two months were routinely imposed by the respective DMs using this section.
This practice, the petitioner argued, undermined the intent of the law, which is designed for urgent situations requiring immediate preventive action to maintain public order and safety.
Implications for Governance and Civil Liberties
The High Court's order carries substantial implications for administrative governance and the protection of civil liberties. By insisting on a "speaking order," the court ensures that every use of Section 163 BNSS is accompanied by recorded reasons, making the executive authority accountable for its decision. This transparency allows for meaningful judicial review if such orders are challenged.
The directive effectively puts district and sub-divisional magistrates on notice, requiring them to justify the necessity and proportionality of imposing prohibitory orders, rather than using them as a standard administrative tool. This judgment is expected to bring more scrutiny and restraint in the exercise of these broad powers, balancing state authority with individual rights.
The court disposed of the PIL after issuing these clear directions to the magistrates empowered to pass such prohibitory orders under the law.
