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Abhishek Saha,
West Bengal National University of Juridical Sciences, Kolkata
Abstract
The following paper deals with the Section 144 of Criminal Procedure Code, 1973. The author begins with the introduction, in Part I, explaining the section, its contours, contents and restrictions. The author then moves on to Part II, where he elucidates on what exactly is an unlawful assembly and its relationship with rioting, both of which the section seeks to prevent. Part III traces the jurisprudential history of the section, reflecting on what various High Courts and the Supreme Court have had to say. In Part IV, it is discussed as to why the Section has certain importance and is not completely redundant. In Part V, the author talks about how the section has been used as a tool by the state to misuse - how it has been used to pass orders which are absolutely arbitrary, to curb voices of dissent, and to rampantly create internet blockades.
Introduction
Section 144 of the Criminal Procedure Code of 1973(“CrPC”) is a provision that accords powers to an Executive Magistrate to issue order in “urgent cases of nuisance of apprehended danger”. The threshold of what shall constitute as an urgent or sufficient ground for the imposition of the section is based on the “opinion” of the Executive Magistrate. Hereinwith, the Magistrate can direct any person to act, or to abstain from acting, in a certain way, with regards to his person or property, if they feel that such action is necessitated to prevent any sort of danger.
An order passed under this section usually remains in force for a maximum of two months, except for in situations when the State Executive feels it imperative that it be extended to prevent imminent danger to human life or property, in which case, the Government can extend the life of such an order, not extending beyond six months from the date of expiration. In furtherance of the order passed, a Magistrate is empowered to prohibit the assembly of five or more individuals at one place or stop them from organizing any event that might disrupt the peace of a place. During the time within which the order sustains, all public establishments, except Emergency and essential services, stand suspended. The Section further empowers the Magistrate to block internet access as well.
Unlawful Assembly and Section 144
The Constitution of India recognizes citizens’ right to assemble peacefully and without arms. However, such a gathering cannot be unlawful. Along, with the powers in Section 144, as mentioned above, the CrPC bestows on the police and the magistrate several powers in furtherance of maintaining the peaceful status quo. They have the authority to use civil force to disperse of an assembly with a common unlawful intention. If such measures fall short, and the assembly seems to endanger the general security of the public, the Executive Magistrate has the authority to call upon the help of the Armed Forces to further such dispersal. The Indian Penal Code (“IPC”) defines an “unlawful assembly” as a congregation of five or more people who have a common intention that is contrary to the provisions of law. IPC provides for a list of conditions as to what may be considered as unlawful When any member(s) of an unlawful assembly resorts to violence of their common object, it becomes a riot.
However, all the measures mentioned above are in situations when the assembly has already formed. Section 144, however, is more of a preventive measure, imposed to make sure that a situation of rioting does not arise at all. It is an extraordinary, emergency measure, which should not be used indiscriminately.
Jurisprudence regarding Section 144 of CrPC
Section 144 of the CrPC is uniquely preventive in its approach. This is because a key element is using orders under this section is urgency. The situation must be such, that in involves very apparent dangers and in fraught with instances like rioting or affray or disturbs “public tranquility”. Such must be the urgency that it warrants doing away with the laid procedures to deal with public nuisance. It is not surprising then, that this section becomes extremely contentious and subject to frequent litigation. In Madhu Limaye v. SDM, Monghyr, the constitutionality of the section was challenged. CJI Hidayatullah, in his landmark judgment, upholds the validity of the section In M. Das v D C Das, the Apex Court once again upholds the idea that the main object of the section is prevention of the breach of peace. In BBN School v. DM, Allahabad, the Court held that the expression “public tranquility” cannot have a restricted sense of public order, at par with how its understood in context of prevention detention laws. In Ummulkulus v. EM, Union Territoty, it was held that the Executive Magistrate enjoys wide powers under this section, and as long as they are satisfied that a situation has arisen to pass an order under the section, the order is legally valid. However, as per Abdool v. Lucky Narain Mundul, Section 144 is a temporary remedy only and, while the Magistrate can pass an immediate order to prevent breach of peace In Ram Manohar Lohia, the Allahabad High Court interpreted Section 144 to be provision used in harmony with the rights of movement given to citizens under Art. 19 of the ConstitutionIn Anindya Gopal Mitra, challenged was leveled against the West Bengal police on the matter that they refused permission to political party, who were in opposition to the ruling party, for holding a rally, and issued a prohibitory order under S.144. The Calcutta High Court ordered that such an order is not sustainable. In Acharya Jagdishwaranand Avadhut, Supreme Court held that orders passed under the section cannot be of permanent or even semi-permanent nature. In Anuradha Bhasin in January, 2020. The challenge was leveled at the indiscriminate use of the Section in an alleged attempt to curb peaceful protests. The Apex Court, in a judgment authored by J N.V. Ramana, upheld the idea that imposition of Sec.144 cannot be in prevention of an individual’s democratic right of expressing their opinion, grievance or dissent.
Section 144 – A Necessity
The relevance of the Section lies in its urgency. It is to be used in situations when there simply is no time to approach the often lengthy laid procedure. The primary motive of having a section like S.144 is prevention of violence. As provided in the section itself, its aim is to prevent dangers leveled at human life and property. In furtherance of such the Executive Magistrate is bestowed with wide powers to even stop individuals from certain acts
Section 144 – Subject to Misuse
The Section is often criticized for various reasons. It is opined that the powers given to the Executive Magistrate under the Section, which are completely to their discretion, can be used arbitrarily and be fraught with mala fide intentions. It has also been alleged to be used by the State as a tool to curb dissent and prevent protests The powers provided to the Executive Magistrate under S.144 (1) are very wide. In furtherance of what he deems fit, he can pass an order asserting an action or abstain from a certain action. This creates the prime situation for the arbitrary use of the section, notwithstanding the scrutiny that it might be subject to from the higher judiciary. Examples of such might be as follows:
In 2015, the Magistrate of Indore used S.144 to impose a ban on Hookah and Hookah bars, saying that it causes injury to life. In 2010, the Pune Police imposed S.144 in all public parks on Valentine’s Day to prevent “immoral practices by young couples”.
Conclusion
India’s criminal justice system – both in structure and practice - reeks heavily of its colonial hangover. The rampant invocation of Section 144 is merely an example of a system that is already heavily skewed in terms of balance of power. The intention of the section, in theory, is pretty noble. It does not confer on the State carte blanche powers, but circumscribes the unbridled power in the contours of “in case of an emergency”. It is, at its heart, a preventive measure, that should be invoked as rarely as is possible. Through clauses (5) to (7), it also equips citizens, who have been aggrieved with respect to their person and property, with a right of subsequent hearing. In a utopian world, the section would be a blessing. However, we live in a world far from that.