Analysis: Section-144 of CrPC, 1973

The Constitution of India grants various fundamental rights to its citizen under Part-3 of the Indian Constitution and one such right is the Right to Freedom of Speech and Expression under Article-19(1) of the Indian constitution[1] .The concept of freedom of speech and expression includes propagation of one’s thoughts and opinion, right to protest and form association but the fundamental freedom is subject to Reasonable Restriction under Article- 19(2) of the Indian Constitution. There must be a balance between fundamental freedoms and restrictions imposed and the test of reasonableness was laid down in the landmark case of State of Madras v V.G. ROW Union of India and State[2]. This case highlighted that the restrictions that are applied on an individual, statute impugned, there is a difference in pattern on the grounds and cases as to how reasonable restrictions are applied to various cases depending upon the circumstances of the case and there is no general pattern to be followed.

Section-144 of Chapter – 10 of The Code Of Criminal Procedure ( CRPC ) , 1973 ; can be considered as a reasonable restriction as under this section of the code a District Magistrate , a Sub divisional Magistrate or any other Executive Magistrate after being empowered by the State Government has the power to issue prohibitory and preventive orders to an individual alone or to the entire general public as a whole to prevent any disruption of law and public order or public annoyance and nuisance or any other act that causes danger to human life and safety and affects public tranquillity as a whole.[3] Section-144 of CRPC also speaks about how the order has to be issued by the magistrate in writing and the order that has been issued must clearly mention the objectives and must be very definite in nature and the type of prohibition that is being imposed should be specified .

Section-144 of CRPC also empowers the Executive magistrate to pass or give an ex-parte order which might extend for duration of 2 months and further by the orders of the competent authority or by the order of the state government the orders might extend to a total of 6 months depending upon the situation in exceptional case. [4]

The Ministry of Home Affairs after Abrogation of Article-370 had extended the curfew under Section-144 of CRPC in many parts of Kashmir for a period of 6 months to safeguard national security and maintain law and order in the Union Territory of Jammu and Kashmir.

The power exercised by authorities under Section-144 of CRPC is just not used in any ordinary manner but the executive empowers the authorities to exercise this power in a lawful manner for maintaining law and public order in the area and the power and issuance of orders is not absolute in nature and it does not escape judicial scrutiny by the courts[5].

objective/aim of the study: –

The research aims to analyse Section-144 of Criminal Procedure Code, 1973. This also aims to find out whether it is inadequate to confront urgent cases of nuisance and apprehend danger.

RESEARCH problems TO BE ADRESSED

1- Whether Section-144 of CRPC is Constitutionally valid and whether orders passed under Section-144 of CRPC by the competent authorities are subject to judicial scrutiny or not?

2- The Scope of Section-144 of CRPC with emphasis on public order and Security of State with emphasis on its recent usage.

ANALYSIS AND ADRESSING THE research problems

Constitutional validity Sec-144: –

The Constitutional Validity of Section-144 of CRPC and how this section should be read in supplementary and in consonance with Article-19(2) as a form of reasonable restriction has been highlighted in many cases[6].

The Supreme Court in the case of Gulam Abbbas V State of UP [7] made a comment on the nature and the scope of Section-144 of CRPC in a very comprehensive manner and highlighted that the power under Section-144 of CRPC is to be used and has been provided for countering the urgent situation of unlawfulness that can prevail and the preventive orders under Section-144 of CRPC is to be exercised for preventing disorders, obstructions and annoyances with an intent to safe guard public tranquillity.

An important judgement that had upheld the Constitutional validity of Section-144 of CRPC and had further substantiated that the power granted under Section-144 of CRPC to the executive magistrate was not unjust and not arbitrary in nature as the power given to them was not absolute and there was a check on the use of the power via the test of reasonableness and proportionality.

The court in the case of Madhu Likhaye V Sub Divisional Magistrate [8] highlighted this aspect that the order that has been given under Section-144 of CRPC or any prohibitory or preventive curfew orders can be challenged under the grounds that the individual or any member of the public deems fit this stops the magistrate from expressively misusing the powers that have been given to the deemed authority.

For substantiation the person challenging the order is given a chance to be heard in the court of law and this allows the principle of natural justice to be safeguarded and the most important fact of all the High Court can review the order of the Magistrate under Section-435 of the CRPC read with Section-439 of the Code. The High Court if it deems fit can quash the order that have been passed under the Code or ask for reasonable justification of the order and this ensures that the Magistrate is accountable for his actions and that the order passed under Section-144 of CRPC is not exempted from the concept of Judicial Review.

The Supreme Court has consistently upheld the Constitutionality of Section-144, but has laid down no principles that may be accustomed guide its exercise. The Court has laid down that urgency of the case is that the gist of the action under this Section in the series of judgments. However, no explanation or illustrations have ever been provided for the identical. Although such orders are often reviewed by the Tribunal, such a recourse mostly proves to be a cumbersome process and thus, ineffective. Specific restrictions on this absolute power of the Magistrate should be laid down under this Section to stop it from violating the elemental right of freedom of assemble of citizens.

• CAA- NRC PROTEST & SECTION 144: –

There were huge mass protests across the country with relation to CAA and NRC. The protests held across the country saw imposition of Section-144 of CRPC in various States of India such as Uttar Pradesh, Karnataka and the Union Territory of Delhi, Assam and many other States to safeguard law and order and public order in the State.

Before delving into the debate if the imposition of Section-144 was justified or not and whether it hampered the freedom of speech and expression and right to protest and whether it failed the test of reasonableness (whether the imposition of Section-144 as a ground of reasonable restriction when the protests were going was valid or not) has to be examined in a twofold manner.

Coming to the incidents on December 15, 2019 protests were going on in Jamia Islamia , Jawahar Lal Nehru University in Delhi Aligarh Muslim University in Uttar Pradesh after the Citizenship Amendment Act was passed .The protests though termed as peaceful had turned violent under which there was severe harm and damage to the public property caused buses were burned , shops were looted and forced to closed down people were beaten up and chants and slogans were raised during the protests that was of such nature that lead to furtherance of tensions that lead to a riot like situation [9]. After the violent protests in December government had imposed Section 144 of CRPC in parts of Delhi Near the Red Fort Area, Mandi Bazaar and various other parts of Delhi where there were chances of protests getting violent and a disruption of law and order was deemed too happened. After imposition of Section-144 of CRPC assembly of over 5 people was banned and people involved in any gatherings which involved 5 people was termed to be unlawful. In this case Section-144 was termed as an arbitrary measure taken up by the Government and this move was criticised by many student unions, activists, news channels as a crackdown on dissent.

In Uttar Pradesh after the AMU violence and the violence in Delhi many political parties and student unions and civil society groups had planned for exercising widespread anti CAA protests in the State but to safeguard law and order and public safety to be ensured complete prohibitory orders were issued across the whole state of Uttar Pradesh and no permission was given by the police authorities to hold any protests or have an assembly of more than 5 people. Even after the prohibitory orders in place and police check posts being set up across the state there was huge violence in Uttar Pradesh in which people carried lathes and petrol bombs were hurled that lead to damage of public property and clashes of violence occurred between the protestors and the police in which police officers were severely injured. A record 1100 people were arrested and many were detained across Uttar Pradesh for violation of curfew orders.[10] A question here arises whether the imposition of Section-144 of CRPC was valid in these areas when protests were going on and whether the students arrested in violation of section-144 of CRPC was justified. Here are few landmark cases which explains the concept of cases of reasonable restriction under Article-19(2) of the Indian Constitution that should be read with supplement to Section-144 of CRPC which would justify how the imposition of Section-144 of CRPC was justified to safeguard public tranquillity and order[11].

The Supreme court in the landmark case of In Re- Ramlila Maidan Incident Dt… V HOME Secretary and Ors,[12] had clearly highlighted the importance and need of Section-144 of CRPC that acts as a safeguard to the larger public interest and Section-144 of CRPC highlights the opinion that when in situations when exercise of rights recognised by law for one or few may conflict with rights of public or tend to endanger public peace, tranquillity the orders under Section-144 of CRPC are completely valid and anyone in violation of it should be detained and punished accordingly.

After the Jamia and the AMU incident and the violence that occurred on February 23^rd the country saw its worst hit riots and there was a complete disruption of law and order and anti-sloganeering against India was done hate speeches were given ,illegal protest march and rallies were held in Delhi without government permission and hate speeches were given, people with the use of petrol bombs ,pistols, swords and other weapons communal riots was incited which led to killing of approximately 51 people and huge losses to public property .[13] Delhi after the riots had occurred and tensions when they were high and there was a threat that could have led to another riot like situation which could hamper public tranquillity at large there were curfew and shoot at sight orders imposed in many parts of North East Delhi and complete prohibition orders were imposed under Section-144 and with it additional manpower in the form of CRPF was also deployed. These prohibition orders along with additional security and precautions were legal and fall within reasonable restriction.

There were peaceful protests in many of the states happening against CAA and NRC and many students and faculties belonging to AIIMS, IIMS, many great scholars and academicians and Civil Society were actively involved in protests throughout the country through candle marches, peaceful sitting dharnas etc., But to curb down on these Section-144 of CRPC was imposed in many States and these protests were held to be a threat to public order.

One such incident happened in Karnataka where the prohibition orders passed by the State Government was in contention and the imposition was Section-144 of CRPC was challenged in the Karnataka High Court through a Public Interest Litigation and the case was heard by the bench of Karnataka High Court when Historian Ramachandra Guha and hundreds of protestors were detained in Bengaluru, Kalaburagi, Shivamogga who were peacefully protesting. [14]The Court in this case had quashed the imposition of Section-144 of CRPC as arbitrary and in the comment and the questions posed by the high court before quashing of the order was when permissions of protests were given how can they be stopped overnight, do the state police authorities want to take school and college children to police station for peaceful protests, is the state of the opinion that every protest will disrupt the peace and tranquillity? [15] The judgement while quashing the order stated that the imposition of Section-144 of CRPC in this case was not based on reason and it curtailed the fundamental right of the people to protest freely and therefore the order was quashed.[16]

In the case of Iftekhar Zakir Sheikh v State OF MAHARASTHRA[17] and Ors, the Bombay HC highlighted that not every Anti CAA protestor can be termed as an antinational or a terrorist. Therefore, the impugned orders passed are arbitrary and do not have any valid grounds. We live in a democracy and everyone has the right to freely protest so the orders of the additional district magistrate do not stand.[18]

The protests that had happened against CAA and NRC and the imposition of Section-144 on various occasions where it was justified in many cases but also in some occasions the use of Section-144 of CRPC by the executive was termed as unreasonable in nature. A proper test of reasonableness and due diligence needs to be followed when Section-144 of CRPC is being imposed and if the imposition or the order passed infringes on the fundamental right of an individual and is also an abuse of power by the executive than a proper check balance needs to be maintained by the judiciary.

Applicability of Section-144 in recent times

Section-144 of Criminal Procedure Code sets power to Executive Magistrate to constrict the particular or a group of persons locating in a particular area while observing a certain place or area. This is one of the most essentiality in our time of COVID-19 crisis. The World Health Organization (WHO) recently revealed the novel coronavirus (COVID-19) a worldwide pandemic. With over 2,00,000 showed instances and 8,000 deaths panic tiers are on a upward push across the globe. Flight cancellations, shutdown of public places, and faraway functioning of places of work have precipitated extraordinary disruption throughout industries worldwide. In many instances, human beings appear to be prepping as though it’s the end of the world.

Countries severely affected by COVID19 such as Italy, Germany, China and also the USA are preparing as best as possible. While they’ll not resort to assembling 10 new hospitals in time period like China, surge capacity is being evaluated, coordinated within their healthcare system let alone several isolation policies and orders. Similarly, in India, the preliminary concerns for the government and its officials would rotate around the health and safety of all citizens, camouflaged as an employee, customer, or neighbour. On these preview, Deputy Commissioner of Police Pranay Ashok imposed Section-144 around the Greater Mumbai region. The outbreak of novel coronavirus aka COVID-19 was the explanation for such threat to human life perceived by the Magistrate.

The present order or any such order within the legal maxim would be a necessary tool to put these certain restrictions on public gatherings and movement and such order couldn’t be challenged on the bottom of infringing the basic Right enshrined in Article-19(1)(b) or (d) of the Constitution as same was found to be within the limit of reasonable restriction of-19(2) and (5). However, there are certain restrictions on the Magistrate exercising these power as he needs to follow certain guiding principles laid down within the provision itself or that of Section-134. One peculiar instance during this regard is that this order under Section -144 cannot exceed quite two months but there’s a proviso within the same clause granting the ability with the government to exceed such a period of time to 6 months on satisfying itself for the requirement of such act. Given things where no cure has been found, these sections would want to be interpreted leniently it being a procedural law.

However, the role of Code of Criminal Procedure would be much less when it involves a situation that we are foreseeing as spread of COVID-19 to such an oversized extent. In India, we’ve got Indian infectious disease Act, 1897 which not only grants the State and Central Government to require any temporary measure for controlling and forestall the outbreak of a disease but also punish the individual not following with such orders through Section-188 of IPC (disobedience to order duly promulgated by Public Servant). A recent case has been lodged during this regard invoking this Section of Epidemic Act and even visas are being cancelled under the ambit of this Act.

So, for the present, Section-144 Criminal Procedure Code seems capable control the particular movement of targeted groups that are either more at risk of the outbreak or are major threat for spreading the virus. This Section may also be invoked to forestall any situation of panic among the final public when it involves shopping of essential commodities as we observe in several nations across the world. Thus, we will rightly conclude that imposition of Section-144 is incredibly well within its legal competency and may be effectively imposed to tackle this pandemic because the world impatiently awaits a COVID-19 vaccination.

Impact of section – 144 in Kashmir for ABOLITION OF Article-370

After the abrogation of provisions under Article-370, the choice was challenged for the confinements that were forced within the locale[19]. The Jammu and Kashmir organization has been requested to audit all the limitations inside a week, counting web confinements, and uncover the orders so that they can be challenged in a court of law. The Kashmir Valley region has been beneath a web shutdown for 159 days and counting, the longest ever shutdown in not as it were India but in an equitable nation. On 5 August, the government suspended cellular and landline services including web some time recently Jammu and Kashmir misplaced its extraordinary status.

In spite of the fact that roadblocks, landline and cell phone services have been re-establishing, the web is still beneath lockdown within the region. According to a report, the SC seat did not investigate the political aim behind the prohibitory orders and it needed to discover an adjust between the security and freedom of the individuals. The court said that it needed to adjust the human rights and freedom of people.

Since the August lockdown,2020 was only gradually being relaxed when the Covid-19 lockdown was imposed, J&K has suffered one year of closures. According to the Kashmir Chamber of Commerce and Industry, organizations throughout all sectors of the economic system have misplaced near 40,000 crores withinside the Valley alone. Even discounting those figures, the monetary price to the previous state as an entire should be even larger. Losses in education system and health system are similarly in grave. Online classes barely worked on the poorest service like on 2G networks.

Health care professionals faced the same problems. Doctors couldn’t ask for specialist recommendation on serious sicknesses or participate in exchanges of the newest info on Covid-19. within the initial few months when August, pharmacies could not get deliveries of medication and clinics were closed.

Because of the ban on 4G networks and also the continuous imposition of Section-144, most of those issues persist, in conjunction with a number of others. The media has been deeply affected, each in an editorial and financially[20]. Anyone who reads the native papers will see the distinction before and when August 2019. there’s some news however no inquire into either the August actions or their implementation over the past year. Though challenges to the removal of special standing and shake-up of the state are unfinished within the Supreme Court, the Modi administration has proceeded to implement both. New domicile rules have replaced the permanent resident certificates, raising fears of further job and trade losses additionally as long fears of losses of land and different privileges. The latter impact Jammu over the Valley; reportedly 2.9 hundred thousand applications for domicile certificates are created in Jammu as against 73,000 within the Valley.

The past year has been one in all a terrible loss for the folks of Jammu and Kashmir. Not solely has development been rolled back and incomes fallen, political rights to representation, civic rights to info and communication, and human rights to freedom of expression, protection against arrest and companion rights, to bail or a speedy trial, have all been refused. The only gain has been in counter-insurgency, which too tiny in absolute numbers. we have a tendency to should, of course, be glad that even some of hundred lives are saved, however we should always equally raise whether or not forbidding 4G has extremely contributed to it, and how a drastic curtailment of rights can possibly be justified in the name of counter-insurgency.

The rules for suspending telecommunication services, which basically include the most common ingredients of daily life like voice call, mobile internet, SMS, landline, fixed broadband, etc., are the temporary Suspension of Telecom Services under the public Emergency or Public Safety Rules, 2017. These statute eexercise the powers under the Indian Telegraph Act of 1885, where Section-5(2) deals with intercepting information ” in the interest of India’s sovereignty and integrity ” .

However, shutdowns in India aren’t usually under the guidelines laid down, which include safeguards and procedures. Section-144 CRPC has frequently been used to clamp down on telecom services and order Internet shutdowns.

In Sambhal, UP, the District Magistrate has suspended internet services under Section -144. In addition, on June 20, 2019 in West Bengal also mobile internet, cable services, broadband were shut down by the District Magistrate in North 24-Parganas under Section-144 over communal tensions.

CONCLUSION

After a critical examination of Section – 144, the paper can conclude with an essential element of Section-144 in the package of measures of the executive body of each district for the prevention and management of emergencies. There have been number of cases filed against the section challenging the constitutional validity of the section and an equal number of decisions upholding its legitimacy. Although discretionary powers are conferred on the magistrate under this section, there are several factors in exercising them to avoid arbitrariness or injustice in the arrangement. However, there is an absence of specific objectives while giving wide executive powers to officials. There is very limited judicial oversight over the executive branch, too, which makes it ripe for abuse and misuse.

In addition, with the increase in riots, affray, fighting and other incidents that ruin and disturb the public peace, it has become necessary to transfer these powers to the judiciary in order for the peace to be maintained. So, there has emerged a need to balance the plenary power of legislature and need to protect personal liberty and other freedoms of citizens.

[1] ARTICLE 19 OF THE CONSTITUTION OF INDIA

[2] 1952 AIR 196,1952 SCR 59

[3] What Are the Grounds to Impose Restrictions Under Section 144 of CRPC

BY Chauhan jm@gmail.com http://www.legalserviceindia.com/legal/article-1480-what-are-the-grounds-to-impose-restrictions-under-section-144-cr-p-c.html

[4] ANALYSIS OF SECTION 144 OF CRIMINAL PROCEDURE CODE.

BY NAMAN JAIN

[5] https://supremoamicus.org/wp-content/uploads/2018/07/A26.pdf

[6] Babulal Parate V State of Madras AIR 1961 SC 884

[7] Gulam Abbas VS STATE OF UP (1982) I SCC 71

[8] Madhu Limaye vs Sub-Divisional Magistrate, … on 28 October, 1970 1971 AIR 2486, 1971 SCR (2) 711 https://indiankanoon.org/doc/496236/

[9] Anti-Citizenship Act Protests: Violence Hits Delhi Over ,50 injured

By Sidharth Ravi