Preventive Externment under Section 163 BNSS: Emergency, Proportionality and Natural Justice in Sri Adrushya Kadeshwara Swamiji v. Deputy Commissioner, Dharwad

Preventive Externment under Section 163 BNSS: Emergency, Proportionality and Natural Justice in Sri Adrushya Kadeshwara Swamiji v. Deputy Commissioner, Dharwad

I. Introduction

The decision of the Karnataka High Court, Dharwad Bench, in Sri Adrushya Kadeshwara Swamiji v. The Deputy Commissioner, W.P. No.108686/2025 (GM-RES) (CAV order dated 25 November 2025, per M. Nagaprasanna J.), is one of the earliest and most comprehensive expositions of Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), the provision that substantially reproduces the erstwhile Section 144 of the Code of Criminal Procedure, 1973 (“CrPC”).

The case arises at the intersection of religious speech, communal sensitivities, preventive policing, and fundamental rights—particularly, the right to move freely (Article 19(1)(d)), and, more broadly, the freedoms of expression and religion. The Court was called upon to decide whether an order forbidding a religious pontiff from entering an entire district for two months—passed under Section 163 BNSS—could withstand constitutional and statutory scrutiny.

Beyond the immediate controversy, the judgment lays down an authoritative framework on:

  • how Section 163 BNSS must be interpreted in light of the long line of Supreme Court precedents on Section 144 CrPC;
  • the mandatory requirements of urgency, recorded material facts, proportionality, and least restrictive measures for valid preventive orders;
  • the strict conditions under which ex parte restraining orders and district-wide externment can be justified; and
  • the impermissibility of using an earlier externment order—especially one expressly limited by the Supreme Court—as a standing template to keep a person out of multiple districts.

Taken together, the judgment effectively constitutionalises the exercise of preventive externment powers under Section 163 BNSS, and will likely serve as a benchmark for future cases across India.

II. Factual Background and Procedural History

1. The Petitioner and the Context

The petitioner, Sri Adrushya Kadeshwara Swamiji, is the 49th pontiff (Matadhipathi) of the Kaneri Mutt at Kolhapur, Maharashtra. He is a Lingayat religious leader said to be engaged in social work, including education and agriculture, and to follow the teachings of Basavanna.

The State of Karnataka had organised a “Basava Samskruthi Abhiyan” convention, at which Lingayat leaders reportedly passed a five-point resolution seeking, inter alia, recognition of Lingayat as a separate religion and distinct enumeration in state surveys. The petitioner publicly responded to certain positions taken in this campaign and, in that process, is alleged to have made abusive and threatening remarks concerning another Lingayat pontiff.

2. The Vijayapura Externment and Supreme Court’s Caveat

On 15 October 2025, the Vijayapura District Administration passed a prohibitory order under Section 163(3) BNSS externing the petitioner from Vijayapura district for two months (16.10.2025–14.12.2025).

The petitioner challenged that order before the Kalaburagi Bench of the Karnataka High Court in W.P. No.203149/2025. That writ petition was dismissed on 17 October 2025. The coordinate bench, while upholding the order, severely criticised the petitioner’s abusive language, yet stressed that the prohibition was temporary and preventive, not a blanket denial of rights.

The petitioner then approached the Supreme Court in SLP (Crl.) No.17121/2025. By order dated 29 October 2025, the Supreme Court:

  • Refused to interfere with the Vijayapura externment for the two-month period; but
  • Expressly clarified:
    • that the petitioner would be free to enter Vijayapura district after 14.12.2025 unless there was a fresh, specific restraining order; and
    • that the 15.10.2025 Vijayapura order “would not form the basis of externment of the petitioner from any other district.”

This caveat is central: the Supreme Court allowed a limited, localised preventive measure, but barred its use as a portable precedent to justify externment elsewhere.

3. The Dharwad Programme and Representation

A religious programme of the Kaneri Mutt was scheduled in Dharwad district, at Hallikeri village (Annigeri Taluk), from 5–7 November 2025. The petitioner was invited to participate.

On 30 October 2025, Jagathika Lingayat Mahasabha, Dharwad unit, submitted a representation to the Deputy Commissioner (DC), Dharwad, requesting that the petitioner be barred from entering Dharwad for this programme. Significantly:

  • The Mahasabha did not object to the programme itself or to other Swamijis attending;
  • Its objection was specifically to the presence of this petitioner; and
  • The representation relied on the earlier Kalaburagi Bench and Supreme Court orders.

The DC, in turn, directed the Superintendent of Police (SP), Dharwad, to inquire and submit a report. On 3 November 2025, the SP submitted a report referring to confidential inputs about an earlier speech (09.10.2025), wherein the petitioner had allegedly used objectionable, insulting language against a Lingayat pontiff, potentially provoking anger and hatred in the community.

4. The Impugned Dharwad Externment Order

Based on the representation and SP’s report, the DC, acting as Executive Magistrate, issued an order dated 4 November 2025 under Section 163(1)–(3) BNSS:

  • Prohibiting the petitioner from entering the entire Dharwad district;
  • For a period from 05.11.2025 to 03.01.2026 (two months);
  • Justified as a “precautionary measure” to prevent disturbance of law and order.

Notably, although the programme was only for 5–7 November 2025, the externment was extended to about two months, without explicit reasoning addressing the mismatch between the event’s duration and the length of the ban.

5. The Present Writ Petition

The petitioner approached the Karnataka High Court, Dharwad Bench, under Articles 226 and 227 of the Constitution, seeking a writ of certiorari to quash the DC’s externment order of 4 November 2025.

  • Petitioner’s case: the order is mala fide, based on extraneous considerations, passed without notice or hearing, contrary to the Supreme Court’s caveat, and disproportionate—violating the fundamental right to movement.
  • State’s case: the petitioner’s continued provocative speeches justify a preventive externment based on the SP’s report; the order is an independent exercise of power under Section 163, and courts’ review is limited to process, not merits.

III. Summary of the Judgment

Justice Nagaprasanna allowed the writ petition and quashed the externment order dated 04.11.2025, together with all consequential actions.

Key holdings include:

  • Section 163 BNSS is verbatim identical to Section 144 CrPC; therefore, the entire body of Supreme Court and High Court jurisprudence on Section 144 continues to govern Section 163 BNSS.
  • An order under Section 163 (like Section 144) is an extraordinary, preventive, emergency power; it can be exercised—especially ex parte—only on the basis of demonstrable urgency and imminent danger to public order, supported by recorded “material facts”.
  • Preventive orders must satisfy proportionality and least-restrictive-means. A district-wide, two-month externment in response to a three-day programme, without explaining why narrower measures (e.g., restricting speeches or specific venues) would be inadequate, fails this test.
  • The DC’s order is deficient on multiple fronts: it does not record any real emergency; it offers no justification for bypassing notice and hearing; it relies heavily on an earlier externment that the Supreme Court had specifically insulated from serving as a basis for similar orders in other districts.
  • Accordingly, the impugned order is arbitrary, disproportionate and legally unsustainable, and must be obliterated.
  • The Court recorded an undertaking from the petitioner, through counsel, that he would conduct himself with restraint and not misuse the liberty restored.

IV. Statutory Framework: Section 163 BNSS and Continuity with Section 144 CrPC

Section 163 BNSS, 2023, titled “Power to issue order in urgent cases of nuisance or apprehended danger”, is a near word-for-word reproduction of Section 144 CrPC, 1973. Its core features are:

  • Power vested in a District Magistrate, Sub-Divisional Magistrate, or specially empowered Executive Magistrate;
  • Precondition: in the Magistrate’s opinion, there must be:
    • Sufficient ground for proceeding; and
    • Immediate prevention or speedy remedy must be desirable;
  • The Magistrate may, by written order stating the material facts, direct any person:
    • to abstain from a certain act; or
    • to take certain order with respect to certain property in his possession or management;
    if such direction is likely to prevent obstruction, annoyance, injury, danger to life/health/safety, or disturbance of public tranquillity, riot or affray.
  • Ex parte orders are permitted in cases of emergency or where service of notice in due time is not feasible (Section 163(2)).
  • Orders can be directed to particular individuals, groups in a locality, or the public generally (Section 163(3)).
  • No order can remain in force for more than two months, unless extended (up to a total of six months) by State Government notification (Section 163(4)).
  • Aggrieved persons (and the State Government) have a right to seek rescission/alteration, with a hearing (Section 163(5)–(7)).

Because of this verbatim identity, the Court treats Section 144 CrPC precedents as directly controlling on Section 163 BNSS.

V. Detailed Analysis of the Court’s Reasoning

A. Core Legal Issues

From the reasoning, the Court can be seen as addressing the following legal questions:
  1. What is the nature and scope of the power under Section 163 BNSS (ex-Section 144 CrPC)?
  2. What procedural and substantive safeguards constrain the exercise of this power, particularly with respect to:
    • recording of “material facts” and “opinion”;
    • use of ex parte orders;
    • duration and territorial extent of restrictions; and
    • reliance on past orders?
  3. Whether, on the facts, the DC’s order against the petitioner satisfies these safeguards and withstands scrutiny under Articles 14, 19 and 21 of the Constitution.

B. Precedents Cited and Their Influence

1. Supreme Court Decisions on Section 144 CrPC

The judgment undertakes an unusually exhaustive survey of Supreme Court jurisprudence on Section 144 CrPC, which now informs Section 163 BNSS:
(a) Babulal Parate v. State of Maharashtra (1961)
  • Interpreted Section 144 of the old 1898 Code (substantially similar to the current provision).
  • Held that although the section does not expressly require a prior inquiry, the obligation to “state the material facts” in the order implies that:
    • the Magistrate must make some inquiry; or
    • must rely on personal knowledge or credible reports he accepts as prima facie correct.
  • Therefore, Section 144 does not confer arbitrary power; it is constrained by the need to record material facts and founded on some ascertainment of circumstances.
(b) Madhu Limaye v. Sub-Divisional Magistrate (1970)
  • Upheld the constitutionality of Section 144, but emphasised:
    • The “gist” of action under Section 144 is the urgency of the situation and the likelihood of preventing serious disturbances.
    • The power is extraordinary, exercised in a judicial manner, and subject to judicial scrutiny.
    • Emergency must be “sudden and consequences sufficiently grave.” Without this, exercise of the power lacks justification.
(c) Gulam Abbas v. State of U.P. (1982)
  • Clarified that under the 1973 Code, Section 144 powers are vested in Executive Magistrates and are executive (police) functions, not judicial or quasi-judicial.
  • Nonetheless, such orders are amenable to writ jurisdiction under Articles 32 and 226 when they infringe fundamental rights.
  • Again stressed:
    • The power is meant to preserve public peace and tranquillity in emergent situations.
    • Magistrates must not use Section 144 to settle civil disputes or favor majoritarian pressure; their action should be against the wrongdoer, not the wronged.
(d) Acharya Jagdishwaranand Avadhuta v. Commissioner of Police (1983)
  • Struck down repetitive Section 144 orders that were being renewed in succession, effectively creating a semi-permanent ban.
  • Held that Section 144 is intended only for immediate and temporary emergencies; the scheme of the Section does not contemplate repetitive orders.
  • Reiterated that:
    • The State Government can extend an order beyond two months only up to six months, and even that indicates Parliament never intended longer, quasi-permanent restraints.
    • Successive orders to achieve a semi-permanent effect are an abuse of power.
(e) Ramlila Maidan Incident, In re (2012)
  • Comprehensively analysed Section 144:
    • Confirmed that the provision is not ultra vires; it serves to protect public order and public safety in emergencies.
    • Laid out the basic requirements for a valid Section 144 order:
      1. Existence of sufficient ground for proceeding;
      2. Need for immediate prevention or speedy remedy;
      3. Order must be in writing stating material facts;
      4. Service in the manner prescribed, with ex parte orders permitted only in genuine emergencies.
    • Stressed that:
      • Restraints must be least invasive and minimal, not exceeding the constraints of the situation (both in nature and duration).
      • The perception of threat must be real, not imaginary or a mere speculative possibility.
(f) Anuradha Bhasin v. Union of India (2020)
  • Though primarily concerning communication lockdowns in Jammu & Kashmir, the Supreme Court summarised Section 144 principles:
    • Power under Section 144 is both remedial and preventive, but must address situations in the nature of an emergency.
    • It cannot be used to suppress legitimate expression of opinion or democratic rights.
    • Orders must:
      • state material facts and show application of mind;
      • be justified on the touchstone of proportionality and least intrusive measure;
      • not be repetitive, as that would be an abuse of power.

The Karnataka High Court weaves all these strands together to articulate a unified constitutional standard now applicable to Section 163 BNSS.

2. High Court Decisions: Reinforcing the Safeguards

The judgment also canvasses a host of High Court decisions (Calcutta, Andhra Pradesh, Bombay, Kerala, Allahabad, Gauhati, Orissa, and prior Karnataka rulings) to illustrate concrete applications of these principles. Key themes include:
  • Urgency as jurisdictional fact: Courts (e.g., Andhra Pradesh, Kerala, Gauhati, Allahabad) have held that without a genuine, immediate danger, Section 144/163 jurisdiction does not arise at all. A bald assertion of urgency is insufficient.
  • Recording “material facts”: Magistrates must record the factual basis linking the prohibited act to the apprehended danger (Calcutta in Prodyot Kumar, Lahore in P.T. Chandra, Bombay in Manohar G. Joshi, Goa in Joan Mascarenhas).
  • Ex parte orders as exception, not rule: Ex parte orders are permissible only where:
    • there is a genuine emergency, and
    • circumstances do not admit service of notice.
    Misuse of ex parte powers to avoid a hearing has been condemned as colourable and illegal (Bombay, Karnataka in Pramod Muthalik and Shri Pramod).
  • Proportionality and minimal impairment: Blanket bans, including district-wide externment, have been invalidated where narrower measures could achieve the same objective (Bombay, Orissa, Karnataka).
  • Protection of fundamental rights, especially religion and expression: In Joan Mascarenhas (Bombay HC), the Court stressed that Section 144 cannot be used to prohibit lawful religious activities in private premises or suppress proselytisation per se; it can only intervene when there is a clear, imminent threat to public order, and even then must be narrowly tailored.

3. Karnataka High Court’s Own Precedents

The judgment leans particularly on two prior Karnataka decisions:
(a) Sowmya R. Reddy v. State of Karnataka (DB, 2020)
  • Concerned a sweeping Section 144 order in Bengaluru during protests against the Citizenship Amendment Act.
  • The Division Bench held:
    • The term “opinion” in Section 144(1) implies a duty to conduct a “careful inquiry” before invoking this extraordinary power.
    • The Magistrate cannot merely reproduce police reports; he must independently assess and record material facts and reasons.
    • Orders must not be blanket or vague; they must show why narrower measures would not suffice.
(b) Pramod Muthalik v. District Magistrate, Davanagere (2003) & Shri Pramod v. District Executive Magistrate (2015)
  • In both cases, externment/district-entry bans under Section 144 against a political/religious leader were quashed on grounds that:
    • No adequate emergency or imminent threat was shown;
    • Ex parte power was misused instead of issuing prior notice;
    • Blanket district-wide entry bans were too harsh and disproportionate when the alleged risk lay mainly in public speeches or rallies;
    • Lesser measures (e.g., restricting rallies) would suffice.
  • The Court also stressed that any restraint on personal liberty:
    • must be “commensurate with the object” sought to be achieved,
    • must be minimal, and
    • “cannot exceed the constraints of the particular situation, either in nature or in duration.”

These earlier Karnataka decisions are effectively extended and applied to the BNSS regime in the present case.

C. Application to the Present Facts

Having set out this rich doctrinal landscape, the Court evaluates the impugned Dharwad externment order on four major axes:

1. Absence of Demonstrable Emergency

  • The representation was filed on 30 October 2025; the SP reported on 3 November 2025; the DC’s order was issued on 4 November 2025, to operate from 5 November for two months.
  • The Court notes that there were at least 96 hours from the date of the representation to the order:
    • ample time to issue a show-cause notice to the petitioner;
    • obtain his response; and
    • thereafter, if necessary, issue a reasoned order—possibly even tailored to the programme dates.
  • The order, however:
    • does not specify any imminent or sudden event that would make a hearing impossible;
    • does not explain why notice could not be given;
    • simply relies on a prior speech (09.10.2025) and the general possibility of protests.

On this basis, the Court concludes that the case does not present the kind of “sudden” and “sufficiently grave” emergency that alone justifies invoking Section 163 in such an intrusive, ex parte manner.

2. Failure to Record “Material Facts” and Genuine Opinion

  • The DC’s order:
    • recites the representation and SP’s report;
    • alludes vaguely to the petitioner’s earlier abusive speech; and
    • asserts that public order might be disturbed if he enters Dharwad.
  • However, it lacks:
    • a clear causal linkage between the petitioner’s proposed visit and specific apprehended incidents of violence or disorder in Dharwad;
    • any independent analysis or “careful inquiry” by the DC, beyond adopting the SP’s apprehensions;
    • reasons for why the threat could not be addressed by narrower restrictions (for example, regulating the programme, speeches, or venues).
  • The Court emphasises that under Section 163 (like Section 144), the Magistrate must form his own “opinion” based on a careful inquiry, and must “state the material facts”. Mere reproduction of police reports is not enough.

3. Disproportionate Duration and Scope

  • The programme in question was scheduled only from 5–7 November 2025.
  • Yet the externment order runs from 5 November 2025 to 3 January 2026—about two months.
  • The Court finds no justification in the order for:
    • the two-month duration; or
    • the district-wide scope, covering all of Dharwad district rather than the locality of the programme.
  • Following Ramlila Maidan, Pramod Muthalik, Swami Adhokshajananda (Orissa HC), and others, the Court reiterates that:
    • restrictions must be minimal and commensurate with the specific exigency—in nature, territorial extent, and duration;
    • preventive powers cannot be used as “engines of oppression” or to impose blanket bans far beyond what the situation demands.

4. Impermissible Reliance on Vijayapura Externment

A crucial strand in the Court’s reasoning is the treatment of the earlier Vijayapura externment and the Supreme Court’s caveat:

  • The representation by Jagathika Lingayat Mahasabha explicitly relied on the Vijayapura order and the Kalaburagi and Supreme Court decisions.
  • The impugned Dharwad order itself refers to those proceedings.
  • But the Supreme Court had categorically directed that the Vijayapura order of 15.10.2025:
    • “would not form the basis of externment of the petitioner from any other district.”

The High Court notes that, notwithstanding this clear direction, the Dharwad authorities have effectively used the prior order as a template to justify a fresh externment. The Court observes:

  • This conduct suggests that no independent, fresh material was gathered to justify the Dharwad externment; and
  • Using the earlier order in this manner is contrary to the Supreme Court’s express caveat.

While the High Court does not frame the issue as contempt, it clearly treats this as a serious infirmity in the legality of the Dharwad order.

D. Judicial Review of Section 163 Orders

The judgment also clarifies the scope of judicial review over Section 163/144 orders:

  • Such orders are executive/administrative in nature (per Gulam Abbas), based on the Magistrate’s subjective satisfaction.
  • However, courts under Article 226:
    • do not sit in appeal over the Magistrate’s decision; but
    • can examine:
      • whether jurisdictional facts (urgency, apprehended danger) existed;
      • whether material facts and reasons were recorded;
      • whether power was exercised bona fide, not for collateral purposes or under majoritarian pressure;
      • whether the restriction is proportionate and the least restrictive means.
  • If an order lacks material, is arbitrary, excessive, or ignores constitutional limitations, the High Court may quash it.

Applying these standards, the Court holds that the Dharwad externment order fails on every key requirement.

VI. Simplifying the Complex Concepts Involved

1. Preventive vs Punitive Action

  • Punitive action is taken after a law has been broken (e.g., prosecution for an offence).
  • Preventive action—like Section 163/144—aims to prevent anticipated breaches of peace or danger to public order.
  • Because preventive action can restrict rights even when no offence has yet been committed, courts insist on strict safeguards to avoid abuse.

2. “Subjective” Opinion with “Objective” Basis

Section 163 speaks of the Magistrate’s “opinion” that there is sufficient ground and immediate prevention is desirable. This “opinion”:

  • is subjective in the sense that it is the Magistrate’s satisfaction;
  • but must be based on an objective foundation: material facts, reports, or inquiry that a reasonable person could rely on.

Courts will not second-guess the wisdom of the decision, but they will insist on seeing the underlying material and reasons.

3. Proportionality and Least Restrictive Means

The doctrine of proportionality requires that:

  1. The measure pursues a legitimate aim (here, maintaining public order, safety, etc.);
  2. It is suitable to achieve that aim;
  3. It is necessary, in the sense that no less restrictive alternative would suffice; and
  4. On balance, the benefit to public interest outweighs the harm to the individual right.

Under this doctrine, a two-month ban from an entire district for a three-day religious event, absent clear evidence of imminent large-scale disorder, is prima facie disproportionate.

4. Ex Parte Orders

  • An ex parte order is one passed without hearing the affected party in advance.
  • Section 163(2) allows ex parte orders only in:
    • cases of emergency; or
    • where service of notice in due time is impossible.
  • Courts treat ex parte use of Section 163 as a last resort, not a convenient shortcut. If there was enough time to issue a notice and hear the person, bypassing this step is a serious procedural violation.

5. Fundamental Rights Implicated

  • Article 19(1)(d): right to move freely throughout India. Subject to reasonable restrictions in the interests of the general public (Article 19(5)).
  • Article 19(1)(a): freedom of speech and expression, including religious and political speech. Restrictions must fall within Article 19(2).
  • Articles 25–26: freedom of conscience, and rights to profess, practice and propagate religion, subject to public order, morality, and health.

Externment orders under Section 163 directly interfere with movement and can indirectly burden speech and religious practice. Therefore:

  • Such orders are not per se unconstitutional (courts have upheld them in genuine emergencies); but
  • They must pass the tests of reasonableness, proportionality, and non-arbitrariness.

VII. Impact and Significance of the Judgment

1. Bridging CrPC Jurisprudence into the BNSS Era

This judgment is among the first to systematically transpose Section 144 CrPC jurisprudence into the BNSS framework for Section 163. It sends a clear signal that:

  • The renaming and re-codification of criminal procedure in BNSS does not dilute or erase constitutional constraints and precedential safeguards developed over decades.
  • Executive Magistrates under BNSS remain bound by:
    • the requirement of recording material facts;
    • careful inquiry before forming an opinion;
    • limiting orders in time and space;
    • observing natural justice except where a genuine emergency justifies ex parte action;
    • adhering to proportionality and least restrictive measures.

2. Constraints on the Use of Externment as a Routine Law-and-Order Tool

The judgment is an important corrective against a growing administrative tendency (explicitly noted from Joan Mascarenhas and other cases) to use Section 144/163 as a:

  • routine device to bar inconvenient speakers, activists, or religious leaders from entering districts;
  • standing template, extended almost mechanically from one district to another, based on prior orders rather than fresh material.

By quashing a two-month district-wide externment that rested heavily on an earlier order the Supreme Court had already ring-fenced, the Karnataka High Court has clearly warned that:

  • Each Section 163 order must be independently justified on fresh, district-specific material.
  • Authorities cannot treat a person’s controversial past, or a previous externment, as a permanent badge warranting their exclusion from multiple districts.

3. Guidance for Executive Magistrates

The judgment, read with the precedents it cites, amounts to a practical checklist for Magistrates contemplating action under Section 163 BNSS:
  1. Ascertain and record urgency: Is there a real, imminent danger to public order, life, or safety? What exactly is the apprehended event?
  2. Gather credible material: Police reports, intelligence inputs, or other evidence must be concrete and current, not stale or speculative.
  3. Conduct a careful inquiry: Do not merely copy police reports. Apply your own mind; where time permits, call for more information.
  4. Issue notice where possible: Use ex parte power only if delay would frustrate the very purpose or service is genuinely impossible.
  5. Tailor the order: Limit it in duration, territorial scope, and content to what is strictly necessary. Consider whether regulating the specific event (place, time, manner, content) would suffice instead of externing the person altogether.
  6. Avoid reliance on older externments: Prior orders, particularly those limited by higher courts, cannot be used as the sole or primary basis for new ones.
  7. Record reasons clearly: Ensure that “material facts” and reasoning are adequately set out, to enable judicial review if challenged.

4. For Religious and Political Actors

The decision is also a nuanced message to religious and political figures:

  • On one hand, the Court firmly strikes down disproportionate and procedurally defective restraints on movement.
  • On the other, it acknowledges that:
    • religious leaders wield significant influence; their words can trigger protests and tension;
    • they are expected to exhibit restraint, particularly when controversies are simmering.

The Court’s recording of the petitioner’s undertaking to behave with restraint shows a dialogic approach: rights are protected, but with an expectation of responsible exercise.

5. Reinforcing the Duty to Protect, Not Suppress, Fundamental Rights

Drawing on judgments like Joan Mascarenhas and Gulam Abbas, the Court implicitly reinforces the principle that:

  • The State’s role is to protect the lawful exercise of fundamental rights—even when they provoke opposition—not to suppress them at the behest of vocal groups.
  • When rights and public order appear to clash, the starting point is to curb illegal reactions (e.g., violent protests), not to extinguish the lawful right itself, unless no lesser measure can maintain peace.

VIII. Conclusion: Key Takeaways

The Karnataka High Court’s decision in Sri Adrushya Kadeshwara Swamiji v. Deputy Commissioner, Dharwad is a significant constitutional and procedural landmark for the new BNSS regime. Its principal contributions may be summarised as follows:

  1. Continuity of Jurisprudence: Section 163 BNSS inherits the full body of constraints developed around Section 144 CrPC. The renumbering of the provision is not a license to dilute safeguards.
  2. Emergency as the Core Justification: Section 163 is an extraordinary preventive power, justified only in urgent, emergent situations involving real, imminent danger to public order, life, or safety—not in routine law-and-order management.
  3. Procedural Rigour: Orders must be written, reasoned, and grounded in “material facts” derived from a careful inquiry. Ex parte use is exceptional and must be justified in the order itself.
  4. Proportionality and Least Restrictive Means: District-wide, long-duration externments demand a high level of justification. Non-specific apprehensions and references to past controversy cannot support such sweeping measures when narrower alternatives exist.
  5. Respect for Higher Court Directions: Where the Supreme Court has ring-fenced an earlier externment order from being used as the basis for others, local authorities cannot ignore that caveat by using it as a template for similar restrictions elsewhere.
  6. Protection of Fundamental Rights: The judgment reaffirms that preventive powers cannot be used to stifle legitimate exercise of movement, speech, and religious freedoms. The State must, in the first instance, police unlawful reactions, not suppress lawful activity.

By quashing the Dharwad externment order, the Court sends a powerful message: preventive powers under Section 163 BNSS are to be used sparingly, carefully, and constitutionally. In doing so, it preserves both the State’s ability to act swiftly in genuine emergencies and the individual’s right to move, speak, and participate in religious life free from arbitrary exclusion.

Case Details

Year: 2025
Court: Karnataka High Court

Judge(s)

M.NAGAPRASANNA

Advocates

DALWAI VENKATESH

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