INTRODUCTION
Lawyer Lara Jesani says, “The draconian legislation is being utilized relentlessly and rampantly to stifle any type of opposition and enforce self-censorship.”[1] In principle, the provision serves a good aim, yet the limits under this section have always been controversial. According to the BBN School vs. District Magistrate, Allahabad case[2], this provision is intended as a preventative measure to silence those who might otherwise threaten public order and safety. The question then arises as to why this particular portion of the paper is so often featured, and for what reasons this is particularly true now. Some background on the section and its intended use is helpful here. As a relic of the British Empire, Section 144, which was initially enacted in the mid-19th century, remains on the books today. The methods it uses to try to keep the peace are always under scrutiny. The section, which purports to provide peace to society, is often at the centre of debates since it covers so many different types of crises and gives judges so much authority. This article will discuss the broad prohibitions and massive governmental powers granted by this clause, as well as why these provisions pose a danger to India’s democratic principles.
WHAT THE SECTION 144 OF CRPC TALKS ABOUT?
The most widely applicable and often used provision of the CRPC’s Section 144. Under this subsection, Magistrates are given broad discretion to make orders in circumstances of immediate annoyance or perceived threat. In this context, the terms annoyance and perceived danger refer to circumstances that either incite social disturbance or pose a threat to the public’s health, peace, or safety. In cases when there is an immediate need to do so, authorities may prohibit gatherings of five or more individuals under this clause. Due to the nature of the situation, it is necessary to bypass the customary procedures that precede the issuing of an order. If the Magistrate believes there is adequate cause for proceedings under this section and that prompt preventive or desired, then the Magistrate may issue an order under this section. In addition, a person, a group of people, or the entire public may be the target of a command issued underneath this Section depending on the situation.
An order issued under Section 144 will be subject to writ jurisdiction either under Article 32[3] or Article 226[4] if any right guaranteed by the Constitution is violated or infringed, as was determined in the case Gulam Abbas & Ors v/s State of U.P. & Ors[5].
Who can proclaim under this section?
Other Executive Magistrates, such as the District Magistrate or Sub-Divisional Magistrate, have been delegated this authority by the State Government.
GROUNDS FOR THE APPLICATION OF SECTION 144 CRPC
Obstruction
The Magistrate should safeguard that a Section 144 order is essential to stop disobedience of public, judicial, or government orders or any behaviour that disrupts law and order. In 2019, after a sensitive Supreme Court hearing on the Ram Janmabhoomi – Babri Masjid property dispute[6], Ayodhya was placed under Section 144 restrictions.
Annoyance
The Magistrate may issue an instruction under this section to prohibit a situation or conduct that generates or tends to make an environment of hate or ferocity in society, which may disrupt law, order, and peace. The section includes both physical and emotional annoyances.
Injury to any person lawfully employed
This basis requires harm to lawfully employed workers. Any violence against a legally working person that establishes or tries to create an imbalance of law and order is justified, regardless of the injuries.
Danger to human life, health, or safety
To qualify as a basis for the application of Section 144, the harm must be inflicted against a person who is acting lawfully in the course of his or her job. And it is fitting that any violence, no matter how little, should be used against a legitimately working individual who establishes or tries to make an imbalance of law and order.
Disturbance of the public tranquillity
Disturbance of public tranquillity occurs when any action or crime disrupts public order and calm. The Magistrate must determine that Section 144 is necessary to protect the public’s safety by maintaining public peace due to the nature of the activity or crime at hand. Example: December 2019 anti-CAA demonstrations and Section 144.
Riot
It generates civic turmoil and abrupt, provocative action. The Magistrate must verify Section 144 is essential to prevent illegal assembly participants from using force or violence. Example: On November 13, 2019, Section 144 was implemented in Jaipur, UP, and sections of Mumbai and Delhi to avert rioting before the Supreme Court’s Ayodhya ruling.
HOW LONG WILL SECTION 144 BE IN PLACE?
Every order issued under Section 144 has a maximum period of two months following the date of issuance. The first decree will be in effect for two months, with a possible extension of up to four additional months at the discretion of the state government.
CONSTITUTIONALITY OF SECTION 144 OF THE CRPC
Justice Hidayutallah held in the landmark case Madhu Limaye v. Sub-Divisional Magistrate (1968)[7] that Section 144 of the Criminal Procedure Code is constitutional if used correctly and that the danger of misuse does not warrant repealing the provision. In addition, the Court ruled that Section 144 of the Criminal Procedure Code is legitimate and constitutional since, when correctly construed, the provisions of the Code do not exceed the limitations on freedom set down in the Indian Constitution. Given that the constitutionality of the order may be challenged, it is untenable to argue that the broad discretion granted to certain justices under Section 144 creates unwarranted limitations on some basic liberties[8]. Therefore, giving the Magistrate so extensive jurisdiction does not run afoul of the Constitution’s guarantees.
The Magistrate in this case issued a Section 144 prohibitive order to end a fight between two union members. This section was challenged by the petitioner because it provided magistrate-wide discretion. The Court reasoned that as this authority is reserved for times of extreme need, it cannot be considered arbitrary. The Court argued that the magistrate’s capacity to act arbitrarily would be curtailed by the restricted nature of the authority, which would only allow its use in cases of extreme need. Abolishing a provision because of the possibility of misuse is not always the best option.
The Magistrate has the authority to issue written orders whenever he deems them necessary. Subdivisional Magistrate, The District Magistrate, or any other Executive Magistrate authorized by the State Government may exercise this power. the need to put a halt to a public disturbance or imminent danger. The order also functions as a summons and must include all pertinent case information. Either it should discourage the recipient from engaging in some action or it should encourage the recipient to change their behaviour concerning the item(s) they control. The purpose of Section 144’s stringent procedures is to prevent its abuse.
From early landmark judgments like Ram Manohar Lohia vs. State of UP[9] where the court ruled that limiting Article 19 (a) and (b)[10] was fair to more recent examples of statewide bans on the internet, the internet has been the target of increasing restrictions. Furthermore, the magistrate has the discretionary authority to enforce Section 144 based on his reasonableness and comprehension, as provided for in this subsection. As stated for the first time in Manzur Hasan v Muhammad Zaman[11], “The Magistrate should use his thoughts to ascertain if the situation is of such urgency as to need an order under this provision.” In this article, however, I shall focus narrowly on the problems of both too-broad limits and an overly powerful judge. The blog will focus on the expansive interpretation and societal consequences of the magistrate’s inherent powers.
SECTION 144 ROLE DURING THE COVID-19 OUTBREAK
Since the whole country of India is being plagued by the COVID-19 epidemic, Section 144 of the Criminal Procedure Code has evolved as a preventative measure in the context of public health and safety. Section 144 was implemented in many cities across several states to stem the spread of coronavirus illness. It has since become a hotly debated subject. The specific clause has been enforced in several Indian states, including Maharashtra, Rajasthan, Madhya Pradesh, Uttar Pradesh, Orissa, Chhattisgarh, Tamil Nadu, etc.
Why section 144?
It is well known that COVID-19 is a highly contagious and fatal virus that spreads quickly, making it imperative to restrict the public’s freedom of movement for the sake of containing the epidemic. Moreover, Section 144 of the Code of Criminal Procedure is unquestionably a fantastic provision in this regard, since it grants extremely substantial authority to authorised Magistrates, allowing them to forbid public meetings.
Emergency circumstances, including those involving a nuisance or the anticipated threat of some occurrence that has the potential to produce a problematic situation or result in detrimental damage to human life or property, are when Section 144 is essentially applied in a specified region/area. Unfortunately, it describes COVID-19 to a tee.
CONCLUSION
When it comes to dealing with emergencies, or, more generally, circumstances involving nuisances or threats to public safety, Section 144 has proven to be a model legislative instrument. The most remarkable aspect of orders made according to this subsection is even anticipating in character, meaning that reasonable limits may be put upon certain actions even before such an act/event occurs, which is likely to avert certain adverse occurrences. Thus, it is clear that this clause goes into effect to protect people’s well-being by preserving calm and order. Since the High Court may review a Magistrate’s judgment under this provision, it makes sense to employ this authority. The growth of riots and other disturbances to public order also makes it imperative that the Magistrates have these capabilities. The ordinary folk will enjoy the security and tranquillity they need for survival if this is carried out.
Author(s) Name: Nikhil Rathore (NMIMS School of Law Indore)
References:
[1] Lara Jesani, Section 144 of the Criminal Procedure Code: A harsh tool has no place in a democracy,
(January 21, 2020) <https://www.deccanchronicle.com/360-degree/210120/section-144-of-crpc-brutal-tool-has-no-place-in-democracy.html.> Accessed 15 august 2023.
[2] BBN School v. Allahabad District Magistrate, (1990) CriLJ 422.
[3] the India Constitution Article 32.
[4] the India Constitution Article 19.
[5] Gulam Abbas & Ors v. State of U.P. & Ors. (1981) AIR 2198.
[6] M Siddiq (D) Thr Lrs vs Mahant Suresh Das & Ors. (2019) 2020- 1 SCC 1
[7] Madhu Limaye v. Sub-Divisional Magistrate (1968), 1971 AIR 2486
[8] Mayur Kulkarni, “Imposition of Restrictions Under Section 144 Cr.P.C. and the Test of Proportionality,” CCLSNLUJ, vol (2020).
[9] Ram Manohar Lohia vs State of UP(1967), AIR 1968 All 100
[10] INDIA CONST. art. 19, cl. (a), (b).
[11] Manzur Hasan v Muhammad Zaman (1921) ILR 43 All 692
