The introduction of the Bhartiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) as a large-scale amendment to the existing Criminal Procedure Code, 1973 (“CrPC”), sought to address contemporary concerns of the polity and legislative with respect to the powers and functions of the Police. A bare perusal of the new legislation reflects a broadening of delegated decision making powers given to the Police Authorities with an aim to decrease the burden on the Courts, while at the same time allowing the Police to deal with dynamic and rapidly evolving situations. It is therefore imperative to understand the new powers given by the Act to the Police Authorities and understand the jurisprudential position that the Courts have taken when analyzing the practical application and scope of such powers.

Section 172 of the BNSS, 2023 reads as:

The section is introduced under Chapter XII of the BNSS, 2023 which corresponds with Chapter XI of the CrPC, 1973 under the caption ‘Preventive Action of the Police’.

Considering the nascent stage of the section and the lack of jurisprudence on the same, this article approaches the section from three perspectives being, (i) the interpretation and scope of the ‘duties’ enshrined in Sub Clause (1) of the section; (ii) the application of the section by the Police; and (iii) the use of similar powers in foreign jurisdictions.

Scope of duties defined under Chapter XII
A bare reading of Sub Clause (1) of Section 172 of the BNSS, 2023, indicates that a person shall be bound to conform to the awful directions of a police officer in fulfillment of any duties under Chapter XII of the BNSS, 2023.

As per Section 172 of the BNSS, 2023, the duties of the Police Officer referred to in sub clause (1) are as follows:

1. Section 168. Police to prevent cognizable offences.
2. Section 169.Information of design to commit cognizable offences
3. Section 170.Arrest to prevent the commission of cognizable offences.
4. Section 171.Prevention of injury to public property.

Therefore, a strict interpretation of the section suggests that the application of Section 172 of the BNSS, 2023, shall be limited only to the duties contained in the afore - mentioned chapter. The Hon’ble Supreme Court in Sangeeta Shah vs. Union of India and Ors¹ held that:

With respect to Section 172 (1) of the BNSS, 2023, the section clearly reads that “All persons shall be bound to conform to the lawful directions of a police officer given in fulfilment of any of his duty under this Chapter.” Therefore it is clear that the duties of the officer to be complied with are limited only to Chapter XII, which falls under the heading of ‘Preventive Action of the Police’. Therefore even if one were to construe that the meaning of duty could be extended beyond the grammatical construction, the heading of the Chapter can be seen as an internal aid to interpretation which connotes that the duties are to be interpreted as duties related to preventive action by the police.

On the contrary a broader interpretation of the term ‘duties’ beyond preventive action would create ambiguity in the interpretation of the scope of powers given under this section, as the BNSS, 2023 read as a whole clearly denotes powers of the police and the procedures to be followed thereof. Moreover, a wide interpretation of the word duties would create an undesirable effect as the same would give unlimited powers to the police officer which is not envisioned in the scope of the BNSS, 2023.

Interpretation and nature of preventive action
Preventive provisions differ from penal provisions to the extent that the purpose for the same is neither retributive nor restitutive but rather the maintaining of law and order in the state. Preventive detention and actions as the name suggests is anticipatory in nature and is not penalization of an action already committed that violates a penal statute.

In Kubic Dariusz vs. Union Of India and Ors² the Hon’ble Supreme Court held that:

With respect to Section 172 of the BNSS, 2023, a similar provision was introduced in the Kerala Police Act, 1960 and the Hon’ble Supreme Court distinguished the same from penal offences in Ravi Namboothiri v K. A. Baiju and Ors.³ by observing as under:

Therefore the provisions and penal consequences of Section 172 of the BNSS, 2023, are distinct in nature from penal provisions of the Bhartiya Nyaya Sanhita, 2023.

Preventive Action has often been described as a necessary evil, as the same amounts to arrest of a person merely on anticipation of a crime or prior to its actual commission. While the same may be seen as arbitrary and draconian, the Hon’ble Supreme Court in Ahmed Noormohamed Bhatti vs. State of Gujrat and Ors.⁴ while hearing a Writ Petition praying for Section 151 of the CrPC (Corresponding to Section 170 of the BNSS, 2023) to be declared unconstitutional, the Hon’ble Court dismissing the petition held that :

Therefore while restrictive in nature, preventive action and detention has been held to be constitutional and not violative of Article 21 of the Constitution of India. However, the Hon’ble Supreme Court through its judgements have placed several checks and balances on the use of preventive detention and action laws to prevent arbitrary and unchecked use.

Application of Section 172 of the BNSS, 2023
As per the powers granted to the police officer under Section 172 (2) of the BNSS, 2023, a police officer may detain or remove a person resisting, refusing, ignoring or disregarding to conform to any direction given by him under sub-section (1) and either present the person in front of a Magistrate or in the case of a petty case release the person within twenty four hours.

While Article 22 of the Indian Constitution provides protection to an individual against illegal arrest and detention in certain cases, Article 22 (2) states that an individual who is detained must be produced before a Magistrate within 24 hours of the arrest, however the same does not apply to a person arrested or detained under preventive detention laws as per Article 22 (4) (b).

Further Article 22 (5) of the Constitution of India, states that :

However sub clause (6) of the Article suggests that the officer is not obligated to provide reasons if they deem that it is necessary to not disclose the same in public interest.

As per the 247th Report on the BNSS, 2023, the Committee suggested certain checks and balances on Section 172 of the BNSS, 2023 by introducing timeframes on the period of detention in order to prevent abuse of the provision by the police officer. The original draft of Section 172 (2) of the BNSS, 2023 read as :

The Committee recommended the following :

Therefore the Committee recommendations were incorporated in the final legislation as a method of ensuring that the detenue that is not produced before a Magistrate is not arbitrarily detained for long periods of time.

In Francis Coralle Mulin v Administrator, Union Territory of Delhi and Ors.,⁵ the Court while holding that a person detained in a preventive detention has the right to meet with legal counsel held that :

The Hon’ble Supreme Court in Joginder Kumar vs. State of U. P.⁶ introduced a balancing act between the powers of a police officer to arrest and detain an individual for a cognizable offences and the constitutional rights of an individual. The Hon’ble Supreme Court held that :

Lawful Orders in the United States
In the American legal system, the concept of "lawful orders" issued by police officers is fundamental to maintaining public safety and order. These orders, given in situations such as traffic stops, crowd control, or arrests, are instructions that individuals are legally obligated to follow. The legitimacy of a lawful order depends on whether it is reasonably related to the officer's duties and within the confines of constitutional rights. Several pivotal cases in American jurisprudence have shaped the understanding of what constitutes a lawful order.

Police officers derive their authority to issue lawful orders from both statutory law and constitutional principles. The Fourth Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures, which means that any order issued by a police officer must meet specific legal standards to be considered lawful. Courts generally apply a "reasonableness" test, assessing whether an officer's order was justified given the circumstances and whether it was necessary to achieve a legitimate law enforcement objective.

In Terry v. Ohio⁷, the U.S. Supreme Court held that police officers have the authority to stop and briefly detain a person if they have a "reasonable suspicion" that the person is involved in criminal activity. This ruling allows officers to issue orders to comply, such as commanding a suspect to stop, show their hands, or remove them from a potentially dangerous area. However, this authority is not without limits; the officer's suspicion must be based on specific, articulable facts, not just a vague or unparticularized hunch.

In City of Houston v. Hill⁸, the Supreme Court struck down a city ordinance that made it a crime to interrupt a police officer in the performance of their duties. The Court held that the ordinance was overly broad and violated the First Amendment because it could criminalize protected speech, such as questioning or criticizing an officer. This case underscored the principle that while police officers have broad authority to issue commands, they cannot do so in a manner that unlawfully restricts free speech.

In Michigan v. DeFillippo⁹ the Supreme Court ruled that an arrest made under an ordinance later found to be unconstitutional was still valid if the officer acted in good faith reliance on the ordinance at the time. This case highlighted the complexities surrounding lawful orders, demonstrating that an officer's belief in the lawfulness of their order can be a significant factor in determining its legality.

The scope of lawful orders is also constrained by constitutional rights, particularly those found in the First, Fourth, and Fifth Amendments. In Papachristou v. City of Jacksonville¹⁰, the Supreme Court invalidated a vagrancy law that allowed police officers to arrest individuals for behaviours deemed "suspicious," like "loitering aimlessly." The Court found that such vague laws could lead to arbitrary enforcement, violating due process rights. This decision affirmed that lawful orders must be clear, specific, and based on objective criteria to avoid arbitrary application.

Disobeying a lawful order can result in legal consequences, including arrest and prosecution. Many states have statutes that criminalize the refusal to obey lawful commands of a police officer, often categorized under "obstruction of justice" or "resisting arrest." For instance, in Atwater v. City of Lago Vista¹¹, the Supreme Court held that police could arrest individuals for even minor offenses, such as a seatbelt violation, if the law provides for such action. This ruling gave police broad discretion in issuing and enforcing lawful orders, underscoring the importance of compliance with police directives.

Conclusion
A cursory comparison between lawful directions by a police officer under Section 172, BNSS, 2023, and the lawful orders under American jurisprudence reflects the nature of Section 172 as being subject to use in preventive detention and not in general use for all offences. The distinct nature of the otherwise similar reading principles display the purposive and preventive nature of the Indian Statute. The Indian legislature as observed through the 247th Committee Report have made a clear indication that the introduction of the provision is restricted to actions corresponding to duties enshrined in Chapter XII and cannot be broadly understood to encompass all duties of a police officer.

With the growing number of mass protest movements in India, from the Anna Hazare protests in 2013, to the CAA NRC protests in 2019, the introduction of a statute which allows for immediate detention upon refusal to comply with the directions of a police officer may definitely open up a Pandora’s box that may engulf any and all forms of peaceful dissent and non - cooperation. However it is only after the Section is milled through the processes of the Writ Courts and Trial Courts that the exact scope and limitations of the same may be determined.

In the short run the introduction of the new section does not create any new paradigm shifts as there has been no large scale application of the same, and may seem to be subsumed in the existing plethora of preventive detention laws. However in due time it may only be hoped that the section and powers therein are treated with great responsibility by law enforcement.

By - Parshva Shah