Introduction to Section 144

Fundamental rights given in the Indian Constitution are subject to reasonable restrictions. Justice Holmes in the case of Schenck v United States[1] pointed out the same while mentioning that the rights given in the Constitution are neither inviolable nor unlimited and have certain reasonable restrictions that are imposed to achieve the ends of equity, justice and necessity.[2] Section 144 of the Code of Criminal Procedure, 1973 (hereinafter referred to as CRPC) embodies one of the tools that are used by the State for the purpose of putting reasonable restrictions on fundamental rights. The section confers power on the senior Magistrates for the issuance of orders when there are urgent cases of nuisance or apprehended danger.

Case Law on the Matter
Rules and restrictions have been placed in the past on the invocation of Section 144 of the CRPC. In the 1961, the Supreme Court in the case of Babulal Parate v State of Maharashtra[3] upheld certain inbuilt safeguards in Section 144 of the CRPC for preventing any arbitrary and unreasonable infringement of the fundamental right to assembly.

The court asserted that the section does not confer any arbitrary powers on the Magistrates and material facts will have to be listed by the Magistrate while passing such an order so that they can be deliberated upon and checked for arbitrariness easily by the High Court if the order is contested. Also, the Section can only be invoked in cases of an emergency and for the situations listed in Section 144(1) of the CRPC. It stated that the order cannot be issued on a mere likelihood of the act that is being prevented but for immediate prevention of the said act.

In the year 2012, the same court in the case of Ramlila Maidan Incident v Home Secretary[4], inter alia, reiterated similar safeguards for the invocation of Section 144 of CRPC to lay emphasis on them. The court stated that the Magistrate has the duty to impose the least invasive restriction possible for averting the threats that have been perceived by them.[5] It mentioned that a balance should be maintained between the right given and the restriction imposed.

It should not occur that by the application of Section 144 of the CRPC the restriction transcends into excessiveness or that by its inapplication, disproportionate harm is done for the sake of upholding people's right. The court here held that Section 144 of the CRPC in itself does not violate Article 19 of the Indian Constitution and hence did not strike down the order in question here.

Recently, in 2020, the Supreme Court further elaborated on the same section in the case of Anuradha Bhasin v Union of India[6] which was about the internet ban in the state of Jammu and Kashmir. Besides shutting down the internet, the government applied a blanket ban on public assembly through Section 144 of the CRPC. The court attacked cases of executive overreach where they try to curb dissent through the imposition of such orders. The court reiterated the ratio of Gulam Abbas v State of U.P.[7] where it was said that action under Section 144 of the CRPC is legitimate only when the situation requires urgent action and the power is to be wielded to maintain public peace and tranquillity.

The court then reframed the rule laid down in the Parate case[8] when it stated that an action under Section 144 of the CRPC would be an action which will likely (emphasis supplied) create obstruction, annoyance (etc.)�... and the Government could not have passed such orders in anticipation or on the basis of a mere apprehension.

Moreover, it was also stated that situations of maintaining 'public order', 'law and order' or the 'security of the nation' would require different degrees of restrictions.

In the end, the court held that the ban on the internet through Section 144 of the CrPC could not be lifted but directed the government to review its orders against the guidelines mentioned and have a temporal definitiveness for the same.

Analysis and Reflection
All these judgements have restricted the scope for abusing the aforesaid section. However, in my opinion, there are certain amendments that need to be brought about for an efficient and abuse-free application of the same. The changes are needed in spite of the safeguards and outlines as despotism is inherent in Section 144, which is apparent from its application in pre-independence India to terminate nationalist and anti-colonial opposition.

Despite this, it has survived the transition into independent India, and continues to be used capriciously till present day to stifle dissent. Between 2008 and 2012, a staggering 1317 of these orders have been issued[9]. This is a cavalier use of Section 144, which as the statistics make evident, is invoked too liberally and indiscriminately.

One such example is the prolonged, and anti-democratic, internet shutdown in Jammu & Kashmir which took place after the amendments to Section 370 of the Constitution of India. Another instance where section 144 was wielded to restrict the freedom of expression was during the anti-Sterlite protest in Tamil Nadu, where people gathered to demand closure of the plant due to it causing excessive damage to the environment and public health. The police opened fire at protestors, leading to 13 deaths.

When invoked too liberally, the hegemonic alter ego of Section 144 surfaces to control the masses. In the current context of anti-Citizenship Amendment Act protests, Section 144 has once again emerged as an instrument of state coercion.

Considering its significance in urgent situations, it may be unfeasible and undesirable to strike down Section 144 entirely. In the case of Madhu Limaye v Sub-Divisional Magistrate[10], Chief Justice Hidayatullah held that Section 144 is not unconstitutional and the fact that it is being abused is not in itself grounds for declaring it so. Thus alternatively, it is the application of this law that must be regulated. There are three main changes that could be brought about for a better functioning and to achieve the Section's purported purpose.

Firstly, to confine the invocation of this section strictly to serious and immediate threats, ambiguous words such as apprehension must be omitted and substituted with a concrete phrase like a clear and present danger of riot, disorder or interference with traffic on public streets, or other immediate threat to public safety or order. This is to disallow any indulgent interpretations of the terms already mentioned.

Secondly, no police commissioner should be allowed to exercise the powers under Section 21 & 20(5) of CrPC to impose Section 144 since it allows for political and public abuse of power. Thirdly, the effective duration of the said section should be reduced from 6 months to few weeks at most which would be apposite for an order meant to be imposed in transient disturbances in an area and in situations less grave than ones requiring stricter declarations like an Emergency.

Conclusion
Overall, Section 144 of the CrPC is an important tool that can be used to prevent harm in an urgent situation. For instance, during COVID-19, multiple orders under Section 144 of the CrPC were issued in multiple cities in 2020 and also in 2021[11]. The order has been imposed as there is an apprehended danger to human safety due to the disease. It is an efficient way of passing an order whenever COVID-19 cases surge.

However, it is pertinent to ensure that the Section is not abused to curtail any opposition or dissent against the executive. The action of the executive should also not be a result of an expansive understanding of the term apphrension or it should not be for an indefinite time period as was in the Anuradha Bhasin case.[12] For the same, the changes that are suggested in this reflection paper seem necessary.

End-Notes:

1. 249 U.S. 47, 52 (1919)
2. Ibid.
3. 1961 AIR 884.
4. (2012) 5 SCC 1.
5. Ibid.
6. 2020 SCC OnLine SC 25.
7. (1982) 1 SCC 71.
8. Babulal Parate (n 5).
9. Avinash Celestine, 'Dissecting Section 144: Have prohibitory orders become a tool used in daily police work?' (Economic Times, January 6, 2013) <https://economictimes.indiatimes.com/news/politics-and-nation/dissecting-section-144-have-prohibitory-orders-become-a-tool-used-in-daily-police-work/articleshow/17902880.cms>
10. (1970) 3 SCC 746.
11. Money Control, 'Section 144 around India amid rising COVID-19 cases: Take a look' (Money Control, 8 April 2021) <https://www.moneycontrol.com/news/india/section-144-around-india-amid-rising-covid-19-cases-take-a-look-6742831.html>
12. Anuradha Bhasin (n 8).