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 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. 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
 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
, 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
averting the threats that have been perceived by them. It mentioned that a
balance should be maintained between the right given and the restriction
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
Recently, in 2020, the Supreme Court further elaborated on the same section in
the case of Anuradha Bhasin v Union of India
 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
. 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
 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
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
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. 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
, 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.
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. 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. For the same, the
changes that are suggested in this reflection paper seem necessary.
- 249 U.S. 47, 52 (1919)
- 1961 AIR 884.
- (2012) 5 SCC 1.
- 2020 SCC OnLine SC 25.
- (1982) 1 SCC 71.
- Babulal Parate (n 5).
- Avinash Celestine, 'Dissecting Section 144: Have prohibitory orders
become a tool used in daily police work?' (Economic Times, January 6, 2013)
- (1970) 3 SCC 746.
- Money Control, 'Section 144 around India amid rising COVID-19 cases:
Take a look' (Money Control, 8 April 2021)
- Anuradha Bhasin (n 8).