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“Power corrupts and absolute power corrupts absolutely.” -LORD ACTON
CAA and Imposition of Section 144 of CrPC
After the Citizenship Amendment Bill received assent by the President recently and became an Act, there were violent outbreaks of protest in different parts of the country. In Delhi too, there were many protests for revoking the Citizenship Amendment Act, which led to the imposition of Section 144 of CrPC in Seelampur, Kashmere Gate, Lahori Gate, Daryaganj, Delhi Gate etc.
However one of the main incidents that grabbed eyeballs of the country happened on 15th December 2019 when police used brute force, even resorting to tear gas, to suppress the protests by the students of Delhi’s Jamia Milia Islamia University.
According to the police, the students had resorted to violent means and hence violated Section144 of CrPC, which had been imposed there, and the police had no option but to detain those students and use other forceful means to maintain law and order.
Section 144 of CrPC
Section 144 of the Code of Criminal Procedure, 1973 give powers to the administration i.e. District Magistrate or the Executive Magistrate for issuing an order in cases of grave apprehended danger or nuisance. It provides with a full stop on individual’s liberty.
Peaceful assembly is enshrined as a Fundamental Right under Article 19 of the Indian Constitution but it can be curtailed if it is found by the administration that there is high apprehension of such activities disturbing law and order situation in the area. The restrictions can be imposed in a particular area or in entire town.
Under this section, the civilians are not allowed to be in possession of weapons (sharp edged metallic weapons, lathis or fireworks) with exception to police officials and personnel. The violation of the Section calls for an imprisonment up to 03 years.
Difference between Curfew and Restriction
When a curfew is imposed, the public activities are not strictly not allowed. Civilian traffic is put at a halt. Higher level of apprehended danger, violence or rioting is involved. Section 144 of the Code however, is imposed for the period of 02 months and can be withdrawn if normalcy is achieved. The imposition period can be extended over 02 months but cannot be for more than 06 months at one go.
Notable instances in 2019 where S.144 was imposed
There have been several instances where Section 144 has been imposed to maintain public tranquility. Some notable instances are:
- In the recent CAA protests, people have been detained and internet services have been shut down in several places other than Delhi such as Bengaluru, several parts of Karnataka, UP etc.
- After the abrogation of Article 370, in which the special status of J&K had been scrapped off, Section 144 of CrPC had been imposed in Srinagar and mobile, broadband internet and cable TV services were shut down.
- People in Hyderabad were prohibited from participating in dharnas or rallies or give speeches or show gestures that might ignite public unrest, after the charred body of Dr. Priyanka Reddy was found on the national highway in horrific Telengana rape case.
- To prevent possible riots, S.144 was imposed in several parts of Jaipur, Delhi and UP before the Ayodhya verdict was to be out.
Grounds of Section 144
Section 144 of Code can be imposed if the following grounds are fulfilled.
- Human Injury
- Disruption of public tranquility
- Riot, Affray
The restrictions provided under Article 19(1) (a), (b), (c), (d) are reasonable and sufficient grounds and safeguards are provided for people getting affected under Section 144 of CrPC.
Landmark cases on Section 144
- In Re: Ardeshir Phirozshaw … vs Unknown (1939)
There was a censure by the British judge of the Bombay HC on the Chief Presidency Magistrate of Bombay because he had passed an illegal order: It was stated: “A Magistrate acting under Section 144 may no doubt restrict liberty. But he should only do so if the facts clearly make such restriction necessary in the public interest, and he should not impose any restriction which goes beyond the requirements of the case.”
- Babulal Parate vs State of Maharashtra and Others(1961)
This case was the first major challenge to the law, adjudicated by a five judge bench, which observed that it was wrong to say that the remedy of a person aggrieved by an order under the section was illusory and hence, denied striking down of the law.
- Manzur Hasan v Muhammad Zaman (1925)
This case laid down the guidelines regarding the imposition of S.144, which are as follows:
- The power contained in this section should be used only for the purpose of achieving public tranquility and peace.
- The private rights of the public may be temporarily restricted and general interest of the public must be given more priority.
- When Section 144 is under application, no dispute or right of civil nature will be open for adjudication in a proceeding.
- The restriction should not only affect a minor section of a society; it should be for a larger section of the community.
Criticisms against Section 144
“You have used a colonial-era law to suppress us and our voice,” remarked eminent historian Ramachandra Guha, when he was dragged away by the police while protesting against the CAA. In sync with this remark are some criticisms of Section 144, which are as follows:
- Wide Executive Power: It is an enabling provision to book all those who constitute an “unlawful assembly” and engage in rioting. The executive officers, such as Executive Magistrate of any state or Union Territory of India, draws power from this section to prohibit the gathering of four or more people constituting an “unlawful assembly” or when they have to tackle an urgent case of “nuisance” or “apprehended danger” that could have the potential to disrupt public tranquility. It is based upon the foundational idea of ‘exceptional times ask for exceptional measures’. The Executive Magistrate can stop any group or individual from doing any particular act if he feels that it can disturb the ‘public tranquility’. The only criteria given for the judicial officer in imposing S.144 is that it must satisfy his conscience. Although there are provisions that can challenge such action, it cannot contend the subjective satisfaction of the judge if the judge has followed the guidelines prescribed.
- Loosely Worded: The provision has been loosely worded which gives scope for misuse. Although it provides certain objectives such as “public tranquility” or “prevent damage to life and property” but it does not enlist what exactly the Executive Magistrate can or cannot do; he is allowed to do anything to achieve the said objectives. This can lead to arbitrary use of power.
- The Government should take measures and check there is no blanket imposition.
- Checks and balances, judicial implementation and thorough reviews are required.
- Right to peaceful dissent with public order is needed to be ensured too.
Similar laws in other countries
Bangladesh: Similar to the provision in Indian Code of Criminal Procedure, S.144 contained in the Bangladesh’s Criminal Procedure Code too talks about the prohibition of ‘unlawful assembly’, that is, gathering of four or more people, organizing of public meetings, and carrying of weapons or firearms. This Section can be imposed for up to 2 months.
The Magistrate is empowered by this section to impose orders immediately in urgent cases of nuisance or apprehension of danger. However, in 1976 after the introduction of Dhaka Metropolitan Police, the Section is no longer being imposed in metropolitan areas of Bangladesh.
Canada: Unlawful assemblies and riots which have the potential to disturb the public order and generate fear or apprehension of danger in the minds of the people are an offence under Part II of the Canadian Criminal Code.
Hong Kong: The Public Order Ordinance has defined the “unlawful assembly” under Section 18 as “an assembly of three or more people conducting themselves in a disorderly, intimidating, insulting or provocative manner intended or likely to cause a person reasonably to fear that the people so assembled will conduct a breach of the peace or will by such conduct provoke other persons to commit a breach of the peace”.
Those who are found to be a part of an unlawful assembly can be punished with imprisonment for up to 5 years or have to pay a fine of HK $5000 and imprisonment up to 2 years if convicted.
In a democratic country like India, it is our fundamental right to dissent, which was also described as a safety valve of democracy in Bhima Koregaon case by Justice D.Y. Chandrachud. Of course, dissent which turns violent cannot be termed as dissent but as an offence and therefore needs curbing. However, it also has to be noted that S.144 offers a wide scope for misuse of power.
Therefore, it has to be amended to ensure that it is imposed in an area where there is actual apprehension of nuisance and danger to public peace and tranquility. At the end, it should be reminded to the people that peace is the reward and the victory for all.
Authors: Ananya Panda from National Law University, Odisha and Jivantika Gulati from Army Institute of Law, Mohali.
Editor: Ismat Hena from Faculty of Law, Jamia Millia Islamia.