Rolling Prohibitory Orders, Publicity Mandate and Safeguards under Section 144 CrPC / Section 163 BNSS and Section 37 Gujarat Police Act: Commentary on Navdeep Mathur v. State of Gujarat

1. Introduction

The Gujarat High Court’s decision in Navdeep Mathur & Ors. v. State of Gujarat & Ors. (Special Criminal Application (Direction) No. 10872 of 2019, judgment dated 4 December 2025, per M.R. Mengdey J.) is a significant constitutional and administrative law ruling on the preventive powers of the executive under:

• Section 144 of the Code of Criminal Procedure, 1973 (“CrPC”) – now substantially replicated as Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”); and
• Section 37(1) of the Gujarat Police Act, 1951 (“G.P. Act”).

The case arises out of protests in Ahmedabad in 2019 against “The Citizenship Act.” The petitioners challenged a long-standing practice of the Ahmedabad Police issuing back-to-back prohibitory orders under Section 144 CrPC from 2016 to 2019, and a later order dated 3 November 2025 under Section 37(1) of the G.P. Act. These orders restricted assemblies of four or more persons and, in practice, curtailed peaceful protests.

The judgment performs three important functions:

1. It condemns “rolling” or repetitive prohibitory orders that effectively override the two‑month statutory limit under Section 144(4) CrPC.
2. It assimilates the safeguards applicable to Section 144 CrPC (now Section 163 BNSS) to orders under Section 37 of the Gujarat Police Act.
3. It mandates wide and modern publicity of such orders (including via social media), holding that mere gazette publication is inadequate where fundamental rights are restricted.

In doing so, the Court robustly reaffirms the constitutional protection of peaceful protest and expression, and tightens procedural and substantive constraints on the executive’s preventive powers.

2. Factual and Procedural Background

The essential facts, as recorded by the Court, are:

• In 2019, the petitioners were protesting in Ahmedabad against the implementation of “The Citizenship Act.” They were booked by the police for allegedly violating a prohibitory notification issued under Section 144 CrPC, which barred assemblies of four or more persons within Ahmedabad city limits.
• The petitioners contended that from 2016 to 2019, such Section 144 notifications were issued repeatedly, often consecutively, with the effect of continuously preventing public gatherings. They argued that:
  • The notifications lacked any real factual basis or description of an emergent situation.
  • No prior inquiry was carried out.
  • No notice was issued to affected persons, except where a genuine emergency justified ex parte action.
  • The orders amounted to an attempt to suppress legitimate, peaceful protest against the elected government.
  • They were poorly publicized; citizens could not reasonably know of their existence.
• Though the impugned Section 144 notifications had, by the time of hearing, expired (“lived their lives”), the petitioners maintained that:
  • They continued to face criminal prosecution for their alleged violations.
  • The legality of the notifications still required judicial scrutiny, both for pending prosecutions and to guide future exercise of power.
• In the meantime, the Commissioner of Police, Ahmedabad, issued a fresh notification on 3 November 2025 under Section 37(1) of the Gujarat Police Act, citing some incidents of armed gatherings (swords, knives, iron pipes etc.) with alleged intent to commit serious offences. The petitioners also challenged this order as an unconstitutional blanket restriction on the entire city.

The petition, under Article 226 of the Constitution, sought (among other prayers):

• Quashing of the impugned Section 144 CrPC notifications and the 3 November 2025 Section 37(1) G.P. Act notification.
• A general direction that in future every order under Section 144 CrPC / Section 163 BNSS or Section 37 G.P. Act be:
  • Issued only for valid, emergent reasons; and
  • Publicized actively – by physical notices at prominent places, publication in newspapers, radio and TV broadcasts, and circulation via websites and social media (Twitter, Facebook, Instagram) in Gujarati and English.

3. Issues Before the Court

The Court addressed, in substance, the following legal issues:

1. Maintainability: Could the Court examine and quash Section 144 / Section 37 notifications that had already expired, especially when the State argued the petition had become infructuous and that alternative statutory remedies existed?
2. Legality of repeated Section 144 orders: Does the practice of issuing back‑to‑back or overlapping Section 144 orders to keep prohibitions in force beyond two months violate Section 144(4) CrPC and constitutional safeguards?
3. Substantive and procedural safeguards under Section 144 CrPC / Section 163 BNSS:
   • What factual foundation and “emergent situation” must exist?
   • Must there be a prior inquiry and recorded reasons?
   • What is the role of notice to affected persons and when is ex parte action justified?
   • Is it necessary to first exhaust other, lesser measures before resorting to Section 144?
4. Application of Section 144 principles to Section 37(1) G.P. Act: Are the same constitutional and procedural safeguards applicable to prohibitory orders under the Gujarat Police Act?
5. Scope and proportionality of Section 37(1) G.P. Act order dated 3 November 2025: Was a city‑wide blanket ban on certain activities justified by the limited incidents cited?
6. Publicity of prohibitory orders: Is mere gazette publication sufficient, or must the State ensure wide, accessible publicity (including through modern mass and social media) when such orders curtail fundamental rights?

4. Summary of the Judgment

The Gujarat High Court answered these questions largely in favour of the petitioners. In essence, it held:

• The impugned Section 144 notifications and the Section 37(1) notification dated 3 November 2025 were arbitrary, contrary to statutory safeguards, and violative of fundamental rights. They were therefore quashed and set aside.
• Even though many notifications had expired, the petition remained live and maintainable because:
  • Persons, including the petitioners, were still facing prosecution for alleged violations.
  • Expired orders can and must be judicially reviewed where their validity affects pending or future prosecutions and where similar patterns might recur.
• The Court condemned the practice of issuing repetitive, overlapping Section 144 orders to keep prohibitions in force beyond the two‑month limit under Section 144(4). This was held to be a clear circumvention of the statute, particularly when the State Government had not exercised its power under the proviso to extend the duration.
• Relying on Anuradha Bhasin v. Union of India, Gulam Abbas v. State of U.P., and Acharya Jagdishwaranand Avadhuta v. Commissioner Of Police, Calcutta, the Court reiterated that:
  • Section 144 is an emergency power of short duration, to be used only as a last resort.
  • A prior inquiry, recording of material facts, and clear reasons are mandatory safeguards, not mere formalities.
  • Total prohibition of rights can be imposed only in “extreme extraordinary situations” and after lesser measures are tried and have failed.
• The Court held that powers under Section 37(1) of the G.P. Act are comparable in object and effect to Section 144 CrPC / Section 163 BNSS. Hence, the same constitutional and procedural safeguards apply to Section 37 orders, including:
  • Requirement of clear factual foundation and emergent situation;
  • Proportionality and nexus with public order;
  • Avoidance of blanket, city‑wide bans without proper justification.
• Regarding publicity, the Court emphatically held that:
  “In the present era, mere publication of such Notifications or orders in the official gazette would not be sufficient... the public at large has no access to such official gazette. In the era, where several modes of mass communication, including social media platforms are available, it is incumbent upon the Respondent authorities to publish such Notifications / Orders by using such modes.”
  It thus directed that, in future, while exercising powers under Section 163 BNSS (successor to Section 144 CrPC) or Section 37 G.P. Act:
  • Authorities must scrupulously adhere to procedural safeguards; and
  • Notifications/orders must be given wide publicity on social media to ensure public awareness.

5. Detailed Analysis of the Court’s Reasoning

5.1 Statutory Framework

5.1.1 Section 144 CrPC / Section 163 BNSS

Section 144 CrPC (now essentially replicated as Section 163 BNSS) empowers designated Executive Magistrates to issue written orders in urgent cases of nuisance or apprehended danger. As reproduced by the Court, the key elements are:

• There must, in the Magistrate’s opinion, be “sufficient ground” for proceeding and the need for “immediate prevention or speedy remedy.”
• The order must be in writing and must state the material facts.
• It may direct a person or group to abstain from certain acts or take action in relation to property, if necessary to prevent:
  • Obstruction, annoyance or injury to any person lawfully employed;
  • Danger to human life, health or safety;
  • Disturbance of public tranquility, riot, or affray.
• Ex parte orders (without prior notice) are permitted only in emergencies or where circumstances do not permit timely service of notice (Section 144(2)).
• The order may be directed to individuals, residents of a particular area, or the public generally visiting a particular place (Section 144(3)).
• Crucially, no order may remain in force beyond two months unless extended by the State Government, which can extend it for a period not exceeding six months, by notification, if necessary for preventing danger to life, health, safety, riot, or affray (Section 144(4) and its proviso).
• Section 144(5)–(7) provide for rescission or alteration of orders by the Magistrate or the State Government, either suo motu or on application by an aggrieved person, with an obligation to hear the applicant and record reasons.

The Court underscores that these are carefully designed safeguards to prevent abuse of a power that, by its very nature, curtails fundamental freedoms.

5.1.2 Section 37(1) of the Gujarat Police Act

Section 37(1) of the G.P. Act empowers the Commissioner of Police (in Commissionerate areas) to issue orders for preservation of public peace and tranquility and prevention of disorder. While the text of Section 37(1) is not reproduced in full, the Court accepts that:

• The object and effect of Section 37(1) orders are comparable to Section 144/Section 163 BNSS orders.
• Both are ostensibly “preventive” measures aiming at maintaining public order, but both can significantly affect fundamental rights.

On that basis, the Court concludes that the same principles and safeguards developed around Section 144 CrPC must apply, by parity of reasoning, to Section 37(1) G.P. Act.

5.2 Maintainability: Expired Orders and Alternative Remedies

5.2.1 Expired Orders (“Lived Their Lives”)

The State argued that the Section 144 notifications impugned had already expired and therefore the petition was infructuous. The Court rejected this contention for two principal reasons:

1. Continuing consequence – pending prosecutions: Many persons, including the petitioners, had been prosecuted for alleged violations of these notifications. Their criminal cases depended on the validity of the underlying orders. The Court held that:
   “if the same is not done, the Petitioners and many others, would be facing prosecution for violation of the Notification which stands declared arbitrary.”
   Thus, expired orders can and must be scrutinized where they are the foundation for ongoing penal consequences.
2. Need for judicial guidance and precedent: The petition raised systemic issues about the pattern of repeated Section 144 orders and the manner of exercise of power. Even if individual orders had expired, the practice persisted, including under Section 37(1) G.P. Act. Judicial guidance was necessary to prevent recurrence.

This approach is consistent with the broader constitutional principle that courts may decide matters that are “capable of repetition yet evading review” and where public interest or continuing legal consequences justify adjudication despite the formal expiry of the impugned orders.

5.2.2 Alternative Remedy under Section 144(5)–(7)

The State also contended that the petitioners had an effective alternative remedy under Section 144(5) and (6), namely, to apply to the Magistrate or State Government for rescission or alteration of the orders. Hence, a writ petition under Article 226 was allegedly not maintainable.

The Court, however, noted a crucial factual circumstance: the notifications were not adequately publicized. Because the petitioners and the public at large had no effective notice of the orders, the statutory remedy was practically illusory:

Accordingly:

• The failure to exhaust the statutory remedy did not bar the writ petition.
• Where fundamental rights are at stake and statutory remedies are rendered ineffective by the State’s own failure to publicize its orders, constitutional writ jurisdiction remains fully open.

5.3 Substantive Limits on Prohibitory Orders under Section 144 / Section 163 BNSS

5.3.1 Requirement of Emergent Situation and Prior Inquiry

The Court emphasises that Section 144/Section 163 BNSS is designed for urgent cases of nuisance or apprehended danger. It is not a routine tool to manage ordinary law and order, much less to permanently regulate public assembly.

Invoking Anuradha Bhasin v. Union of India (2020 (3) SCC 637), the Court notes that:

• The provision “provides for certain safeguards for ensuring that the power is not abused.”
• The authority must undertake a prior inquiry and reach a conclusion that it is necessary to exercise the power to prevent disturbance to public peace and tranquility.
• The order must state the material facts and reasons justifying the restriction.

Upon examining the impugned notifications, the Court found:

• No indication that any actual or imminent disturbance warranted invoking Section 144.
• No mention of an emergent situation.
• No evidence that any prior inquiry was carried out.
• Absence of material facts or reasons on the face of the orders.

The Court thus held that “the safeguards and procedure prescribed in the Section are not an empty formality” and that “their strict adherence is mandatory” when fundamental rights are affected.

5.3.2 Ex parte Orders and the Necessity of Notice

Section 144(2) clearly allows ex parte orders only:

• “in cases of emergency,” or
• where “the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed.”

Conversely, in non‑emergency situations, there is an implied requirement to issue notice to affected parties. The Court applied this logic:

• The impugned notifications did not record any emergency situation.
• Accordingly, the authorities were obliged to issue notice to affected persons before curtailing their rights.
• No such notices were issued.

The Court therefore concluded that the ex parte, general prohibitory orders, absent recorded emergency, violated the scheme of Section 144.

5.3.3 Last Resort Doctrine and the Need to Try Lesser Measures

Relying on Gulam Abbas & Ors. v. State of U.P. (1982 1 SCC 71), the Court quoted:

The High Court read this as imposing a sequential obligation on the executive:

1. First, attempt other, less restrictive legal measures for maintaining peace and tranquility (e.g., targeted policing, individual action against trouble‑makers, specific prohibitions in localized areas).
2. Only when such measures are either unavailable or demonstrably inadequate may the authority resort to broad prohibitory orders under Section 144.

On the facts, the Court found “nothing on record to indicate” that the authorities had attempted any such lesser measures or that such measures had failed. Consequently, using Section 144 as a first resort, particularly in a manner that continuously restricted protests, was held to be legally untenable.

5.3.4 Prohibition on Rolling / Overlapping Orders and Circumvention of Section 144(4)

Perhaps the most important structural ruling in the judgment concerns the practice of “rolling” or back‑to‑back Section 144 orders.

Section 144(4) provides that:

• No order under Section 144 shall remain in force for more than two months from the date it is made.
• The State Government may, by notification, extend it for a further period not exceeding six months, if necessary to prevent danger to life, health, safety, riot, or affray.

The Court observed that:

• The State Government had not exercised its power to extend any of the impugned orders under the proviso.
• Instead, local authorities repeatedly issued fresh Section 144 notifications, sometimes even while earlier orders were still in force.

It held that:

Citing Acharya Jagdishwaranand Avadhuta & Ors. v. Commissioner of Police, Calcutta & Anr. (1983) 4 SCC 522, the Court reaffirmed that:

Further, drawing again from Anuradha Bhasin, the Court stressed that although the statute permits up to two months (and in certain situations up to six months), authorities are “expected not to impose restrictions for the maximum permissible limit”. Instead, restrictions must be for the shortest necessary period, and rolling orders designed to perpetuate restrictions are impermissible.

5.4 Applying Section 144 Safeguards to Section 37(1) G.P. Act Orders

The petitioners also challenged the notification dated 3 November 2025 issued by the Commissioner of Police, Ahmedabad under Section 37(1) of the Gujarat Police Act. This order cited certain incidents in areas under some police stations of Ahmedabad where accused persons had allegedly gathered with weapons intending to commit serious offences.

The High Court:

• Accepted that Section 37(1) G.P. Act and Section 144 CrPC / Section 163 BNSS share similar objects – “preservation of public peace and tranquility and prevention of disorder.”
• Held that “the principles, which apply to exercise of powers under S.144 of the Code, would also apply to be exercised under Section 37 of the G.P. Act.”

Applying those principles, the Court found that:

• The notification did not specify in which areas of Ahmedabad the cited incidents occurred, or when they occurred.
• Nonetheless, it imposed restrictions on the entire city of Ahmedabad, thereby affecting all residents and visitors.
• Instead of taking targeted action against “rogue elements” and using ordinary policing powers, the Commissioner resorted to a blanket order, which effectively curtailed the “constitutional right of the citizens… of raising a legitimate protest.”

In support, the Court referred to State of Maharashtra v. George Fernandez & Ors. (1984 SCC OnLine Bom 117). While the Gujarat High Court’s judgment refers to this as a decision of the “Apex Court,” the citation indicates it is a Bombay High Court ruling. The principle extracted is that:

Adopting this reasoning, the Gujarat High Court concluded that the Ahmedabad Commissioner’s order lacked any demonstrated rational and proximate nexus between the city‑wide prohibition and the specific incidents cited, and therefore was invalid.

5.5 Publicity and Communication of Prohibitory Orders

A distinctive and forward-looking aspect of the judgment is its emphasis on effective publicity as a condition for meaningful legality of orders that burden fundamental rights.

The State argued that the notifications had been publicized and placed on social media. The petitioners, however, demonstrated that the orders were not “publicized adequately” to make the public aware of them.

The Court held:

• Mere publication in the official gazette is no longer sufficient to inform the public, especially when orders significantly affect their rights.
• The “public at large has no access to such official gazette.”
• Given the multiplicity of modern communication channels, including social media, it is “incumbent upon the Respondent authorities” to use these modes.

The operative direction is particularly important:

Thus, the Court not only invalidated the existing notifications for lack of adequate publicity but also laid down a prospective obligation on authorities in Gujarat to:

1. Comply with all procedural and substantive safeguards; and
2. Ensure wide dissemination (including via social media) of any future Section 163 BNSS / Section 37 G.P. Act orders.

5.6 Directions and Result

Summarising, the Court:

• Declared that the impugned notifications under Section 144 CrPC and the 3 November 2025 notification under Section 37(1) G.P. Act were:
  • Issued in “utter disregard of the safeguards”;
  • Arbitrary; and
  • Violative of the petitioners’ fundamental rights.
• Quashed and set aside all such notifications.
• Issued a general direction for the future exercise of powers under Section 163 BNSS and Section 37 G.P. Act to:
  • Strictly observe procedural safeguards and inherent limitations; and
  • Give wide publicity to such orders via social media and other mass communication tools.

The petition was accordingly allowed and rule made absolute.

6. Precedents Cited and Their Role

6.1 Anuradha Bhasin v. Union of India (2020 (3) SCC 637)

This Supreme Court decision arose out of restrictions in Jammu & Kashmir, including internet shutdowns and Section 144 orders. The Gujarat High Court drew from it two key principles:

• Section 144 confers drastic, emergency powers that directly affect fundamental rights, and therefore must be exercised with great care and subject to judicial review.
• It embeds safeguards:
  • Prior inquiry to ascertain necessity;
  • Recording of “material facts” in the order;
  • Requirement that restrictions be temporary and no more than absolutely necessary.

The Gujarat High Court used these principles to fault the impugned notifications for:

• Absence of any prior inquiry;
• Failure to state material facts; and
• Imposition of restrictions for longer than necessary through rolling orders.

6.2 Gulam Abbas & Ors. v. State of U.P. (1982 1 SCC 71)

The Supreme Court in Gulam Abbas dealt with sectarian tensions and restrictions impacting religious practices. The excerpt relied upon here articulates a general doctrine for suspension of rights:

The Gujarat High Court transposed this to the context of Section 144 / Section 37 orders, holding that:

• Authorities must first consider and, where appropriate, attempt other measures under law.
• Total or near-total prohibition (like blanket city‑wide bans) can be justified only when those measures are inadequate and an extraordinary situation persists.

6.3 Acharya Jagdishwaranand Avadhuta & Ors. v. Commissioner of Police, Calcutta & Anr. (1983) 4 SCC 522

In this case concerning restrictions on the Anand Margis’ religious processions, the Supreme Court made an important observation on the nature of Section 144 orders. The Gujarat High Court quoted:

This observation directly underpins the Gujarat High Court’s rejection of rolling, quasi-permanent Section 144 prohibitions.

6.4 State of Maharashtra v. George Fernandez & Ors. (1984 SCC OnLine Bom 117)

This Bombay High Court decision, cited here, interpreted Section 37(3) of the Bombay Police Act (analogous to Section 37 G.P. Act). The key passages quoted by the Gujarat High Court are:

The Gujarat High Court deployed this reasoning to hold that:

• Section 37(1) orders must be tailored in scope (both territorial and temporal) to the actual public order necessity.
• City‑wide prohibitions based on a few unspecified incidents, without more, lack the required proximate nexus and constitute impermissible blanket bans.

6.5 Other Cited Authorities

The petitioners also cited several other decisions, including:

• Sowmya R. Reddy v. State Of Karnataka (2020 SCC Online Kar 1527);
• Siddegowda & Anr. v. Kullegowda (1950 SCC Online Kar 33);
• Ramesh Mulchand Ramani v. State of Maharashtra (1980 SCC Online Bom 132);
• Bai Shanta Shamalbhai v. Union of India (First Appeal No. 817 of 1979);
• Rajubhai Premabhai Patel v. State of Gujarat (Criminal Appeal No. 560 of 2002).

Although these judgments are not discussed in detail in the High Court’s reasoning, they likely served to buttress arguments regarding:

• The scope of preventive powers;
• Public order vs. fundamental rights; and
• Standards of judicial review for executive orders impacting civil liberties.

7. Complex Concepts Simplified

7.1 What is a Section 144 / Section 163 BNSS Order?

A Section 144 (now Section 163 BNSS) order is:

• A preventive executive order;
• Issued by an Executive Magistrate, not a court after a trial;
• Used in urgent situations to prevent anticipated harm – such as riots, serious disturbances, or danger to life or health;
• Temporarily restricting certain activities – typically assembly of people, carrying of weapons, or movement in certain areas.

It is designed to act before an incident occurs, unlike criminal punishment which operates after an offence is committed and proved in court.

7.2 Preventive vs. Punitive Measures

• Preventive measures (like Section 144 / Section 37 orders) aim to avert anticipated harm. They can be imposed quickly and often without prior hearing in emergencies, but must be short‑term, justified by evidence, and proportionate.
• Punitive measures (criminal prosecution) are imposed after a crime is alleged to have been committed, with full procedural protections such as presumption of innocence, trial, and evidence rules.

Because preventive measures can be imposed on law‑abiding citizens without trial, courts insist on strict safeguards and tight limits on their use.

7.3 “Emergency” and “Last Resort” in this Context

• Emergency under Section 144(2) means a situation where immediate action is needed and there is no time to serve notice or hold prior hearings. Daily law‑and‑order challenges do not automatically qualify as emergencies.
• Last resort (as per Gulam Abbas) means the State must first consider and, where reasonable, attempt lesser measures – such as targeted arrests, deployment of police, or localized restrictions – before banning all assemblies in a large area.

7.4 “Blanket Ban” and “Nexus” with Public Order

A blanket ban is a prohibition that applies across:

• Large territories (e.g., an entire city or district);
• Long durations (up to the legal maximum or de facto beyond it);
• Wide categories of activities (e.g., all assemblies above a small number, irrespective of purpose or history).

Courts require that any such prohibition have a rational and proximate nexus with the need to preserve public order:

• Rational nexus: The prohibition must logically relate to the threat; it cannot be arbitrary.
• Proximate nexus: The connection must be close and immediate, not remote or speculative.

For example, a few unspecified incidents in parts of a city rarely justify a total city‑wide ban on peaceful protests.

7.5 Publicity and Legal Validity

Even a legally sound order can be unfair if:

• Citizens have no practical way of knowing it exists; yet
• They are prosecuted for violating it.

Courts therefore increasingly insist that:

• Important orders affecting rights must be publicly accessible and widely known.
• Modern communication channels (official websites, social media, local announcements, newspapers, TV, radio, public notices) be used to reach citizens.

In this judgment, the Gujarat High Court explicitly ties the adequacy of publicity to the fairness and legality of executive orders.

8. Impact and Broader Significance

8.1 On Policing and Administrative Practice in Gujarat

The decision has immediate operational consequences for police and executive authorities in Gujarat:

• End to rolling Section 144 orders: Authorities can no longer maintain a de facto permanent state of prohibition by issuing overlapping orders every few weeks, especially when the State Government has not extended them under the proviso to Section 144(4).
• Enhanced scrutiny of Section 37 G.P. Act orders: Commissioners of Police must now treat Section 37 powers as subject to similar constitutional constraints as Section 144, including:
  • Factual specificity and clear identification of affected areas;
  • Proportionality of the territorial and temporal scope;
  • Avoidance of blanket bans unless strictly necessary.
• Mandatory wide publicity: Before prosecuting citizens for violations of prohibitory orders, authorities must ensure those orders are:
  • Easily accessible; and
  • Widely disseminated, including through social media.
  Failure to do so may undermine prosecutions and invite judicial invalidation.

8.2 Protection of the Right to Protest

The judgment strongly affirms that:

• Citizens have a fundamental right to peaceful protest against government policies.
• Preventive powers cannot be used to suppress “legitimate expression of opinion or grievance or exercise of any democratic rights.”
• Orders that have the “effect” of shutting down all protests, especially through rolling prohibitions, are constitutionally suspect.

In this way, the Court places a clear constitutional boundary around the preventive power of the State, ensuring that public order measures do not become tools for silencing dissent.

8.3 Influence on BNSS-era Jurisprudence

Since Section 163 BNSS substantially replaces Section 144 CrPC, this judgment effectively lays down BNSS‑era guidelines:

• The same safeguards recognized under Section 144 CrPC apply to Section 163 BNSS orders.
• Authorities should understand that the legislative re‑codification does not dilute judicially developed protections.
• Any misuse of Section 163 BNSS to impose quasi‑permanent prohibitions or to suppress protests is likely to invite similar judicial censure.

8.4 Litigation Strategy for Future Challenges

For litigants and rights groups, Navdeep Mathur provides:

• A framework to challenge:
  • Rolling or overlapping prohibitory orders;
  • City‑wide bans based on vague or limited incidents;
  • Orders lacking detailed reasons or material facts;
  • Orders that are not adequately publicized.
• A precedent for seeking:
  • Quashing of expired orders where prosecutions are pending;
  • Prospective directions on publicity and procedure.

The judgment thus serves both as a shield for individuals facing prosecution and as a blueprint for systemic reform.

9. Conclusion: Key Takeaways

The Gujarat High Court’s ruling in Navdeep Mathur v. State of Gujarat is a substantial contribution to Indian jurisprudence on preventive powers and civil liberties. Its core takeaways are:

1. Rolling Section 144 orders are impermissible. Authorities cannot bypass the two‑month limit in Section 144(4) by issuing back‑to‑back notifications, especially without invoking the State Government’s extension power with recorded reasons.
2. Section 144 / Section 163 BNSS powers are strictly limited and safeguarded. They require:
   • Existence of a genuine emergent situation;
   • Prior inquiry and recording of material facts;
   • Reasoned orders, proportionate in scope and duration;
   • Use only as a last resort after lesser measures are shown inadequate;
   • Notice to affected persons, except in true emergencies.
3. Section 37 G.P. Act orders are subject to the same constitutional discipline. Blanket city‑wide prohibitions, unsupported by specific and proximate public‑order justifications, are invalid.
4. Expired orders can still be challenged. Where prosecutions continue or where systemic misuse is alleged, courts will review the legality of past orders even if they have formally lapsed.
5. Publicity is a constitutional requirement, not a mere administrative detail. Orders that substantially curtail rights must be widely publicized through accessible media, including social media platforms; reliance on official gazettes alone is inadequate.
6. The right to peaceful protest remains central. Preventive powers cannot be converted into tools for suppressing dissent against government policies.

By quashing the impugned notifications and issuing forward‑looking directions for future use of Section 163 BNSS and Section 37 G.P. Act, the Gujarat High Court has sent a clear message: executive convenience cannot override statutory safeguards and constitutional freedoms. The judgment will likely stand as a reference point for courts across India grappling with the balance between public order and civil liberties in the BNSS era.