Section 37 of the Bombay Police Act, 1951 — Scope, Constitutional Validity and Judicial Control

Section 37 of the Bombay Police Act, 1951 — Scope, Constitutional Validity and Judicial Control

Introduction

Section 37 of the Bombay Police Act, 1951 (“BPA” or “the Act”) authorises executive authorities to issue prohibitory orders whenever immediate measures are considered necessary for the preservation of public peace or public safety. Although geographically confined to the State of Maharashtra (formerly the State of Bombay), the provision has assumed national significance because Courts have repeatedly compared its sweep to the wider power vested in executive magistrates under Section 144 of the Code of Criminal Procedure, 1973 (“CrPC”). This article critically analyses Section 37 through the prism of constitutional guarantees, statutory context and judicial interpretation, with particular attention to its interplay with Articles 19 and 21 of the Constitution of India.

Legislative Framework

Text and Scheme of Section 37

Section 37(1) empowers the Commissioner of Police in Greater Mumbai and the District Magistrate elsewhere in the State to prohibit, for a period not exceeding fifteen days, any assembly of five or more persons, carrying of weapons, loudspeakers, or display of placards, etc., if such restriction is deemed necessary for the prevention of disturbance of the public peace or danger to human life or safety. Sub-section (3) makes contravention punishable under Section 135 BPA.[1]

Relationship with Other Provisions of the BPA

Part IV of the Act (Sections 33-39) collectively confers regulatory powers over public assemblies, processions and conduct on streets. While Section 33(o) permits rule-making on assemblies (struck down partially in Himat Lal K. Shah v. Commissioner of Police, Ahmedabad), Section 37 provides an immediacy-based extraordinary power that can be exercised by executive fiat without prior rule-making.[2]

Historical Objectives and Policy Rationale

The BPA, enacted in 1951 to consolidate earlier presidency-era police enactments, reflects the post-Independence concern for balancing individual liberties with the newly assigned responsibility of the State to maintain “public order” — a term absent from the Government of India Act, 1935 but foregrounded by the Constituent Assembly. Preventive provisions such as Sections 37, 56 and 57 were designed to operate ex ante, echoing the maxim that “prevention is better than cure”.[3]

Constitutional Interface

Articles 19(1)(a) & (b): Freedom of Speech and Peaceful Assembly

Any order under Section 37 directly limits expressive and assembly rights. Yet Article 19(3) permits the State to impose “reasonable restrictions” in the interests of public order. The Supreme Court has repeatedly underscored that “public order” is a narrower concept than “law and order”; only those disturbances that affect the community at large qualify.[4]

Article 21 and Procedure Established by Law

Although preventive in nature, Section 37 orders can indirectly curtail personal liberty by criminalising presence in a prohibited area. Consequently, they must satisfy the Article 21 test of fairness, non-arbitrariness and proportionality laid down in Maneka Gandhi v. Union of India (1978).

Judicial Scrutiny of Section 37

Early Constitutional Challenges

One of the earliest reported attempts to test Section 37(3) on constitutional grounds was Bapurao Dhondiba Jagtap v. State (1956), where the Bombay High Court upheld its validity, classifying the power as an administrative function not subject to the audi alteram partem rule.[5] Later High Courts, however, expressed reservations, citing Supreme Court developments on natural justice and reasonable restriction.[6]

Supreme Court’s Endorsement of Amenability to Writ Jurisdiction

In Gulam Abbas v. State of U.P. the Supreme Court explicitly compared Section 37 with Section 144 CrPC, holding that both are executive measures aimed at preserving public peace and are therefore subject to writ review under Articles 32 and 226 whenever fundamental rights are implicated.[7]

Standard of Review: Reasonableness and Non-Arbitrariness

Courts have adopted a two-pronged approach: (a) examining whether the foundation facts objectively justify the apprehended breach of peace, and (b) assessing whether temporal, spatial and substantive limits of the order are proportionate.[8] Failure on either limb vitiates the order.

Requirement of Proper Publication

In The State v. Azizkhan Subedarkhan (1955) the Bombay High Court reversed a conviction under Section 135 because the prosecution failed to prove lawful publication of the prohibitory notification under Section 37.[9] The case underscores that executive convenience cannot override procedural safeguards.

Overlap with Special or Central Legislation

Section 37 co-exists with central security laws (e.g., TADA, NSA). In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya the Supreme Court examined simultaneous invocation of BPA provisions and special anti-terror legislation, underscoring the necessity of proper statutory alignment.[10]

Comparative Analysis with Section 144 CrPC

  • Scope: Section 144 empowers Executive Magistrates pan-India; Section 37 is confined to Maharashtra.
  • Duration: Section 37 orders cannot exceed fifteen days at one stretch (extendable up to six months with State sanction). Section 144 orders initially last two months but may be extended up to six months by the State Government.
  • Subject-matter: Both provisions target assemblies and potential breaches of peace, but Section 144 additionally authorises commands directed at individuals.
  • Judicial Attitudes: The Supreme Court in Gulam Abbas treats the two powers as analogous in nature and hence bound by similar constitutional constraints.

Procedural Safeguards and Due Process

While Section 37 does not statutorily mandate hearing affected parties before issuance, subsequent judicial evolution demands:

  • Recording of material facts showing imminent threat to public peace.
  • Reasoned order indicating application of mind.
  • Prompt and effective publication so individuals can conform.
  • Opportunity to seek modification or rescission before the issuing authority or higher administrative forum.
  • Judicial review on grounds of mala fides, irrationality or disproportionality.

Contemporary Relevance and Critique

In metropolitan contexts, Section 37 is frequently invoked to impose blanket bans on gatherings, possession of weapons, or use of loudspeakers. Critics argue that routine, rolling promulgations dilute the exceptional character of the power and risk chilling democratic dissent, contrary to Himat Lal’s insistence on narrowly tailored restrictions.[11] Moreover, modern public-order challenges (e.g., digital mobilisation, flash protests) necessitate a nuanced regulatory toolkit rather than broad prohibitions that may fall foul of the proportionality doctrine emerging from Modern Dental College (2016) and Anuradha Bhasin (2020).

Conclusion

Section 37 of the BPA remains a constitutionally valid but tightly circumscribed instrument. Judicial decisions have transformed its application from an unbridled executive prerogative into a power subject to substantive and procedural fetters. Going forward, authorities must internalise constitutional discipline by (i) treating the provision as an emergency measure of last resort, (ii) issuing finely calibrated orders, and (iii) ensuring transparent publication. Conversely, courts must continue to scrutinise Section 37 orders with heightened vigilance, thereby preserving the delicate equilibrium between collective security and individual liberty that lies at the heart of India’s constitutional order.

Footnotes

  1. Bombay Police Act, 1951, s. 37 read with s. 135.
  2. Himat Lal K. Shah v. Commissioner of Police, Ahmedabad, (1973) 1 SCC 227.
  3. Hari Khemu Gawali v. Deputy Commissioner of Police, Bombay, AIR 1956 SC 559.
  4. Javed Khan v. State of Gujarat, 2024 (GuJ HC); original dictum in Dr Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740.
  5. AIR 1956 Bom 300.
  6. Kamla Kant Mishra v. State of Bihar, AIR 1963 Pat 240.
  7. (1982) 1 SCC 71.
  8. Utpal Barbara v. State of Assam, (1998) 1 GLR 492.
  9. The State v. Azizkhan Subedarkhan, 1955 SCC OnLine Bom 257.
  10. Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) CrLJ 1869 (SC).
  11. See rolling prohibitory orders discussed in Austin William Luis Pinto v. Commissioner of Police, 2005 ALL MR (Cri) 28.