a-critical-analysis-of-section-144

Context:

  • As protests are going against the Citizenship Amendment Act in several states, state governments have issued prohibitory orders under Section 144 of the Code of Criminal Procedure (CrPC), 1973.
  • Section 144 was imposed in Bengaluru for three days, while the entire state of Uttar Pradesh remains under this provision.

About Section 144: Section 144 was first introduced to curb nationalist activities in 1861. Post-independence, it has been mostly used to curb unlawful assemblies and processions that are anticipated as a danger to public tranquility. 

  • Section 144 of CrPC gives power to a District Magistrate, a sub- divisional Magistrate or any other Executive Magistrate on behalf of the State Government to issue an order to an individual or the general public in a particular place or area to "abstain from a certain act" or "to take certain order with respect to certain property in his possession or under his management".
  • This means the fundamental right of peaceful assembly provided under Article 19 of the Constitution is curtailed by the administration.
  • Action under this section is anticipatory, that is, it is utilized to restrict certain actions even before they actually occur. 
  • Scope of Section 144 of the Criminal Procedure Code: Action under this section is anticipatory, that is, it is utilized to restrict certain actions even before they actually occur. Anticipatory restrictions are imposed generally in cases of emergency, where there is an apprehended danger of some event that has the potential to cause major public nuisance or damage to public tranquility.
  • Rationale for the application of Section 144: Orders under this section should be applied only when it is likely to prevent any of the following events from happening:
    • Annoyance: Annoyance may be either physical or mental. This section covers both kinds of annoyance. Section 144 Criminal Procedure Code, can be used even against newspapers in proper cases of incitements to breaches of the peace or to commit nuisances, dangerous to life or health or to annoy officers lawfully employed.
    • Injury to Human life: A Magistrate has no jurisdiction to make an order under this section merely for the protection of property. He has got to be satisfied that the direction is likely to prevent injury or risk of injury to human life or safety.
    • Disturbance of public tranquillity: The section prohibits an act if it is likely to disturb public tranquility, etc. 

Conditions related to the issue of an order under Sec. 144

  • The magistrate has to pass a written order which may be directed against a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. 
  • In emergency cases, the magistrate can pass these orders without prior notice to the individual against whom the order is directed.
  • The order can also be revoked or altered by the magistrate or the state government on their own (suo moto) or after an application by an aggrieved person(s). 

Powers of administration under the provision

  • The magistrate can direct any person to abstain from a certain act or to take a certain order with respect to certain property in his possession or under his management. This usually includes restrictions on movement, carrying arms and from assembling unlawfully
  • It is generally believed that assembly of three or more people is prohibited under Section 144. However, it can be used to restrict even a single individual. The restriction could be imposed in a specific locality or in the entire town or state.
  • All civilians are barred from carrying of weapons of any kind including lathis, sharp-edged metallic objects or firearms in public places. 
  • Violation of Section 144 is liable for punishment up to three years in jail. However, in most cases involving public protests, as is the case with protests over the Citizenship Amendment Bill, the protesters are taken into custody by police and released after a few hours. 
  • Section 144 is a temporary remedy, under which an order is valid only for a period of two months. This order can be extended to a further period of six months if the State Government deems it necessary to prevent a riot, affray, or for the health and safety of citizens. 

Section 144 Vs. curfew: In the areas where curfew is imposed, all public activity is barred. Civilian traffic is also stopped. Curfew warrants much graver situation posing a bigger danger of rioting and violence.

Communication blockade: Rumours, automated fake accounts, and chain letter scams on social media and messaging often create serious security concerns that spark the shutdowns.

  • The rules for suspending telecommunication services, which include voice, mobile internet, SMS, landline, fixed broadband, etc, are the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017. 
  • Section 69A of the IT Act, along with the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 provide for a mechanism to block information from public access through any computer resource by a direction from the Central Government or any officer specially authorized in this behalf. 
  • The final order was given for such blocking to a Government agency, or intermediary has to have its reasons recorded in writing as stated under Section 69A(1) of the IT Act.

Pros of section 144:

  • Handling new age protest:
    • Leaderless protests: Protests nowadays sometimes embrace entire communities and tend more and more to be ‘leaderless’. This is both a strength and weakness. Police are outnumbered by mobilised crowds.
    • Use of internet: New agitational methodologies are being employed with the use of the ‘digital wave’.
    • The police find themselves severely handicapped in handling agitations, especially those agitations sponsored by today’s newest ‘elite’, viz. the middle class.
    • With little amendments, promulgation of Section 144, is heplful in containing the new age protests,
  • Tackling extremism: For example, in view of the prevailing security situation in Jammu and Kashmir in recent days, the government has imposed Section 144 of the Code of Criminal Procedure (CrPC) in the state.
  • Internal Security - Parliament Building Complex and the Supreme Court are among such areas where Section 144 is always in force.
  • Tackling climate emergency:  In Bihar, it was this year invoked to prevent deaths from Heat Waves.

Concerns

  • Absolute power: the words of the section are wide enough to give absolute power to a magistrate that may be exercised unjustifiably. 
    • The immediate remedy against such an order is a revision application to the magistrate himself. 
  • Shortcomings of writ petition: An aggrieved individual can approach the High Court by filing a writ petition if his fundamental rights are at stake. At best, the courts can make sure that the procedure was correctly followed, but they cannot substitute their judgment for that of the officer on the ground.
  • Not specifically tailored towards the kinds of dangers: Section 144(1) confers powers for achieving certain goals, i.e. preventing any damage to life or property, but frames these objectives as widely as possible given the logic of emergencies.
    • However, there is nothing in the statute itself that says that the executive officer can only do A, B, or C to, say, prevent any “disturbance of public tranquillity”, where this did not suggest any active threats to life or property. 
  • Imposition of Section 144 to an entire state, as in UP, has also drawn criticism since the security situation differs from area to area.
  • Violation of fundamental rights:
    • It may violate the right to assemble peaceably and without arms is laid down in Article 19(1)(B) of the Constitution.
    • Internet shutdowns: it may amount to a direct violation of the fundamental right to freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India.
    • An infringement of freedom 'to practice any profession, or to carry on any occupation, trade or business' as laid down under Article 19(1)(g) of the Constitution: The heavy losses accrued by e-commerce business due to untimely shut down of the internet violates this right. This fundamental right can only be limited on the grounds as laid under Article 19(6).
  • Dilemma of choosing between digital economy and banning internet: Over 16,000 hours of internet shutdowns cost the economy a little over $3 billion over the last five years, according to a report by the Indian Council for Research on International Economic Relations (ICRIER).
    • Section 144 has often been used to block communication overriding various safeguards in the IT Act.

Courts’ rulings on Section 144

  • Proportionality criteria: The orders under this provision may lead to the infringement of fundamental rights to freedom of speech and expression, assembly and movement guaranteed under Articles 19(1)(a),(b) and (c) of the Constitution. 
    • Hence, the orders under Section 144 have to meet the test of "reasonable restrictions" as per Article 19.
  • Puttaswamy case(2017), the SC laid down a four-fold test to determine proportionality:
    • A measure restricting a right must have a legitimate goal (legitimate goal stage).
    • It must be a suitable means of furthering this goal (suitability or rationale connection stage).
    • There must not be any less restrictive but equally effective alternative (necessity stage).
    • The measure must not have a disproportionate impact on the rights holder (balancing stage).
  • In Babulal Parate v State of Maharashtra (1961) case, the SC held that the power can be used even in anticipation of danger. But it should be based on sufficient materials which show that immediate prevention of certain acts is necessary to preserve public safety.
  • In Madhu Limaye v SDM (1970) case, the SC upheld the Constitutionality of Section 144 on the reasoning that it constituted a reasonable restriction 'in the interest of public order'. However, the Court added that this power should be exercised only in emergent and urgent situations
  • Upholding the constitutionality of the law: It ruled that the restrictions imposed through Section 144 cannot be held to be violative of the right to freedom of speech and expression, which is a fundamental right because it falls under the “reasonable restrictions” under Article 19(2) of the Constitution. The fact that the “law may be abused” is no reason to strike it down.
  • Powers subject to judicial review: A seven-judge Bench of the Supreme Court said that the power of a magistrate under Section 144 “is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial review”. 
  • Justifying blanket prohibitory orders: A general order may be necessary when the number of persons is so large that the distinction between them and the general public cannot be made,” the court said.
  • ‘Urgency’ criteria: The Supreme Court held that the scope of Section 144 extends to making an order which is either prohibitory or mandatory in nature and 'urgency' is the only criteria that can justify an order under this Section. 

Ramlila Maidan case 2012: the Supreme Court came down heavily on the government for imposing Section 144 against a sleeping crowd in Ramlila Maidan. It said that such a provision can be used only in grave circumstances for the maintenance of public peace. 

As explained in In Re Ramlila Incident Case, the necessary prerequisites of the order under Section 144 are :

  1. Such an order can be passed against an individual or persons residing in a particular place or area or even against the public in general. 
  2. Such an order can remain in force, not in excess of two months. 
  3. The Government has the power to revoke such an order and wherever any person moves the Government for revoking such an order, the State Government is empowered to pass an appropriate order, after hearing the person in accordance with Sub-section (3) of Section 144 Cr.P.C. 
  4. Out of the aforestated requirements, the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance.

Mazdoor Kisan Shakti Sangathan v Union of India and Anr., where the Supreme Court held that it [the order] was not unconstitutional but recognised the right to protest and asked the government and police to frame guidelines.”

Way forward:

The police on their part need to realise that existing laws and procedures notwithstanding, merely putting faith and focus on strength is not likely to succeed. 

  • Improving intelligence: Various reports have recommended revamping intelligence and introduction of new methods to overcome the lacunae in intelligence collection. 
    • The police should strengthen their ‘contextual’ intelligence which involves anticipating the meaning of ‘street power’ – enhanced by information technology and the presence of flash mobs. 
  • Employing smart tactics which are the imaginative combination of techniques allowing police to move into unexpected places, at unexpected times, with unexpected speed, deception, and surprise using their sense-making abilities and adaptability.
  • Employing Section 133: While Section 144 is often referred to in cases pertaining to threats to public order, Section 133 is deemed the first option to consider when dealing with cases of unlawful nuisance. The fundamental difference between the two sections is that an order affecting Section 133 can be passed only after a police report is received by the magistrate, while the decision to impose Section 144 can be taken without the police report.
  • Reducing internet shutdowns: ICRIER has recommended several remedies, including official communication and data about shutdowns and policies, as well as restricting the use of blanket shutdowns.
  • Following Shreya Singhal v. Union of India case guidelines: While highlighting the subtle difference between discussion, advocacy, and incitement, the Supreme Court held that only speech that may lead to 'incitement' can justifiably be curtailed under Article 19(2).

Section 144 is a useful tool to help deal with emergencies. However, absence of any narrow tailoring of wide executive powers with specific objectives, coupled with very limited judicial oversight over the executive branch, makes it ripe for abuse and misuse.

Also Read: Lok Sabha Passes Citizenship Bill Amidst Opposition Outcry