The Bharatiya Nagarikaksha Sanhita (BNSS) provides the legal architecture governing how Indian law enforcement manages public assemblies and the specific conditions under which force may be deployed. While the law grants police the authority to maintain public order, it establishes a tiered system of escalation designed to ensure that the use of force—ranging from verbal commands to lathicharges and tear gas—is a measure of last resort rather than a primary tool of crowd control.
What Happened
Under the provisions of the BNSS, the authority to disperse an assembly is triggered when a gathering is deemed “unlawful” or poses a demonstrable threat to public peace and safety. The legal process for the use of force is not immediate; it is structured as a sequence of mandatory steps.
First, police officers are required to issue a formal notice or command to the assembly, directing the participants to disperse. This serves as the primary legal warning. Only after a crowd refuses to comply with this command does the legal authorization for “civil force” activate.
When the situation escalates, the BNSS permits the use of non-lethal weapons, such as tear gas and lathicharges, provided the crowd has become violent or presents an immediate danger to the public or property. The authorization for these specific actions typically rests with the officer in charge of the scene or a designated superior officer. The level of authorization required often scales with the severity of the response; while a local officer may authorize a limited dispersal action, larger-scale deployments of specialized riot control gear generally require the approval of higher-ranking administrative or police officials.
Why It Matters
The distinction between a lawful assembly and an unlawful one is the pivot upon which the legality of police action turns. Because the BNSS mandates that force must be proportional to the threat, any deviation—such as the use of tear gas against a non-violent crowd—constitutes a breach of procedural law.
This framework is critical because it shifts the burden of justification onto the state. The law explicitly states that the objective of using force must be the dispersal of the assembly and the prevention of violence, not the punishment of the protesters. When police use force as a punitive measure rather than a dispersal tool, they move outside the protections of the BNSS, potentially exposing officers and the state to legal liability.
For the citizenry, these rules provide a benchmark for accountability. By codifying the requirement for a prior warning and the necessity of proportionality, the law creates a documentary and evidentiary trail that can be scrutinized in court to determine if the state’s response was a legitimate exercise of power or an arbitrary abuse of authority.
Background and Context
The BNSS replaces older colonial-era criminal procedure codes, attempting to modernize the legal language surrounding public order. However, the core tension remains the same: the balance between the state’s duty to maintain security and the constitutional right to peaceful assembly.
Historically, the use of “civil force” in India has been a point of significant legal contention. Courts have frequently had to intervene when the “proportionality” of a lathicharge was questioned. The BNSS attempts to refine this by creating a predictable chain of accountability, but it operates within a broader administrative environment where police often possess wide discretionary powers.
The legal definition of an “unlawful assembly” often depends on the number of people gathered and their stated or perceived intent. If the state declares an assembly unlawful, the police gain the legal cover to initiate the dispersal process. This makes the initial classification of the protest a high-stakes legal determination that precedes any physical action on the ground.
Analysis: The Discretionary Gap
The transition to the BNSS reflects a continued tension between state security requirements and the fundamental right to peaceful assembly. By codifying the stages of escalation—from verbal commands to proportional force—the law attempts to create a predictable chain of accountability. However, the effectiveness of these safeguards depends heavily on the interpretation of what constitutes a “threat to public peace,” a term that grants significant discretionary power to on-ground police officials.
The “proportionality” requirement is the most critical legal check in the BNSS, yet it is also the most subjective. In a courtroom, the “necessity” of force is often judged through the lens of police reports written after the event. If an officer reports that a crowd was “becoming violent,” the subsequent use of tear gas is often viewed as proportional, even if eyewitness accounts or video evidence suggest otherwise. The gap between the codified law and its field application remains the primary area where institutional accountability fails.
Furthermore, the reliance on the “officer in charge” to authorize force means that accountability is often decentralized. When force is applied inconsistently across different districts or states, it suggests that the BNSS is being applied as a flexible guideline rather than a strict mandate.
What to Watch Next
Observers and legal experts should monitor how courts interpret the “threat to public peace” clause in the coming years. Specifically, the following areas will be indicative of whether the BNSS is functioning as a safeguard or a shield for state action:
1. Judicial Review of “Necessity”: Whether courts begin to demand independent evidence (such as CCTV or third-party footage) to verify the “threat” that justified the use of force, rather than relying solely on police testimony.
2. Accountability for Superior Officers: Whether the “designated superior officer” who authorizes the use of non-lethal weapons is held personally or administratively liable when force is found to be disproportionate.
3. The Definition of “Unlawful”: How the state defines the threshold for an assembly to be declared unlawful, and whether this definition is being expanded to include peaceful protests that are merely inconvenient to administration.
Conclusion
The BNSS provides a clear theoretical roadmap for the legal use of force: warn, command, and then apply proportional force only to disperse. On paper, this prevents the arbitrary exercise of power. In practice, however, the law’s efficacy relies entirely on the transparency of the authorization process and the willingness of the judiciary to scrutinize the claims of law enforcement. Until the “discretionary gap” is closed through rigorous evidence-based oversight, the legal framework remains a set of guidelines that are only as strong as the accountability mechanisms enforcing them.
Sources:
India Today – India: https://www.indiatoday.in/india/law-news/story/bnss-protest-rules-when-police-can-use-force-tear-gas-or-lathicharge-2959375-2026-07-29?utm_source=rss
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Story synopsis gathered from: India Today – India — source
