The story so far: Several activists and students were among the over 5,000 protestors detained by the Delhi Police, as they tried to reach Jantar Mantar for the protest demanding the resignation of Chief Election Commissioner Gyanesh Kumar and a rollback of the SIR. However, the Supreme Court on Sunday (October 11, 2026) directed the Centre and the Delhi Police to ensure free movement of people ‘subject to law and order’. In the lead up to the protests in Delhi, there was a nationwide crackdown on protesters by the police force. Among those detained and brutally manhandled by the Delhi police were leaders of various political factions, former Chief Ministers, the Leader of the Opposition, lawyers, journalists and reportedly people who were not even part of the protest.
Police detained people at representatives’ residences even before the protest started, and en route to the protest site.
‘Preventive detention’ means detention of a person without a trial or conviction by a Court. The primary objective of preventive detention is not to punish an individual for a past offence but to prevent him from committing an offence in future. The Supreme Court, in cases like Babulal Parate v. Preventive detention in India has evolved from a colonial tool used to suppress political dissent into a legal mechanism intended to protect national security and public order. Over time, the Supreme Court’s interpretation of personal liberty has also evolved. Maneka Gandhi v. However, concerns over prolonged detention without trial, inadequate judicial oversight and the potential misuse of these laws continue to raise questions about the balance between national security and fundamental rights. The Supreme Court directed that Delhi Metro and railway services operate normally, and that internet services remain available in accordance with the law. The Court also recorded the assurance that lawyers, journalists and other professionals would not be prevented from performing their duties.
Furthermore, orders under Section 163 BNSS are subject to judicial review by the High Courts under their revisional jurisdiction (e.g., Section 401 BNSS) or writ jurisdiction (Article 226/227 of the Constitution). State of Maharashtra (1961) and Madhu Limaye v. Sub-Divisional Magistrate (1971), has consistently emphasised that these powers must be exercised judiciously, proportionately, and only when there is an imminent threat to public order, and not as a routine measure. During British rule, laws such as the Rowlatt Act, 1919, and the Defence of India Act, 1939, allowed the authorities to detain individuals without trial, often targeting freedom fighters and political opponents. Union of India (1978) established that procedures restricting personal liberty must be just, fair and reasonable. It also directed that peaceful assemblies be allowed in accordance with the law, except in areas where prohibitory orders under Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) are in force. Any notice board announcing Section 163 restrictions near the Supreme Court must be removed, if still in place, to ensure access to the Supreme Court and other courts.
With respect to the Delhi protests, the Supreme Court convened what it called an “extraordinary, exceptional” Sunday (October 11, 2026) hearing to direct the Union government and the Delhi Police to stop illegal detentions and allow free and smooth movement of people and traffic, as well as the operations of Metro and rail services, but “subject to law and public order”. It said the movement of people and vehicles across Delhi must not be unnecessarily obstructed and that barricades must be reviewed based on law-and-order and traffic requirements. The Court said there must be no unlawful detention and that all detentions must follow the procedure established by law.
