The coronavirus pandemic has caused widespread panic among the citizens of the country. Since last year, the country and its people have been suffering. In between all this, to control the further spread of the virus and for maximum safety, there have been many instances of Section 144 being imposed in various parts of the country, be it Mumbai, Rajasthan, Maharashtra, or any other such place.
However, this isn’t the first time this Section has been invoked. During the protests against the Citizenship Amendment Act, 2019, the government resorted to this provision to prevent the gathering of people and to address the violent protests. Again, this section was imposed in J&K after Article 370 was revoked by the Government of India. Besides this, time and again, Section 144 of Cr.P.C. had been invoked when there was a threat to security.
Some of you might know about this provision, some might not, but it doesn’t matter. ‘Cause in this article, I’ll try to explain how Section 144 of Cr.P.C. works, detail the nuances of this provision, explore various conditions of the order given under this section, and ultimately help the readers in understanding it. Along with it, some judicial pronouncements have also been included which will also help to elucidate and illuminate this section. So, now let’s start with our article:
What is Section 144 of Cr.P.C.?
Section 144 of the Code of Criminal Procedure, 1973, empowers the district magistrate, or any executive magistrate to issue orders to prevent and handle urgent cases of apprehended danger or nuisance. It is prohibitory in nature. This section is frequently used by the government to prohibit assemblies of 4 or more persons or to order the mobile companies to block voice, SMS, or internet services. The orders passed under this section by the Magistrate can remain in force for up to 2 months and if the State Government allows, up to 6 months after the expiry of such order. The Magistrate is also required to issue a written order and state all the material facts of a case in it. Then the order is to be served as per the manner provided in Section 134 of Cr.P.C. The Magistrate has to be sure that there is an emergent situation that may disturb public tranquillity. Just stating the probability of danger to human life, etc. is not enough to pass an order.
It is settled law that a Magistrate shall act under this section only after he is satisfied that the circumstances are such that they will likely cause disturbance to public tranquillity. Such reasons should be properly stated in the order.
This section also provides that the magistrate can direct a person to abstain from doing a specific act or to take specific order with respect to certain property in his possession or under his maintenance. The order can also be directed to a particular individual or to a group of people or to the public in general. The order, as stated before, usually includes restrictions against an unlawful assembly, i.e., 4 or more persons, restrictions on movement, mobile services, etc. Such orders are usually passed when the magistrate feels that it is likely to prevent, obstruction, annoyance, or injury to any person lawfully employed, or danger to human life, health or safety, or a riot.
The section also gives the provision that an ex-parte order can be passed if there is a critical emergency. (Ex-parte orders are those which can be passed for/by one party. It is passed without waiting for a response from the other side). Furthermore, the Magistrate has the power to rescind or alter the order passed under this section, either on his own or on application by an aggrieved person.
Criticism on this Section
This section is extensively used by the magistrates to curb some activity that would threaten public tranquillity. Thus, it is also subject to some criticism by different media houses, citizens, government officials, etc.
The main criticism is that the words of this section are very broad, wide and are non exhaustive in nature. They give absolute power to a magistrate, and that power may be exercised unjustifiably.
Secondly, the remedy against this order is somewhat not that effective as it should be. The immediate remedy available is just a revision application to the magistrate himself. Though an aggrieved person can approach the High Court by filing a writ petition under Article 226 of the Indian Constitution, in case his fundamental rights are at stake, fear still exists that before the High Court intervenes, the rights could already have been infringed.
Rulings by Courts
In the case of Radhe Das v. Jiram Mahto (1929), the petitioner requested to pass an order preventing the respondent from entering into his property, and the same was granted by the Magistrate under Section 144. Meanwhile, the respondent also requested the same order against the petitioner, and again it was granted by the Magistrate. Then, in addition to the present action, the respondent brought an action on the ground that their rights over the property were violated.
The court held that when the situation is such that an action is required to maintain public peace, the rights of an individual can be renounced for society’s benefit. And since, under Section 144, the order can be passed against a particular person, the order in question is valid.
The case of Babulal Parate v. State of Maharashtra and Ors. (1961) was the first major challenge to this provision of law. The petitioner prayed to strike down the law. However, a five judge bench of the Supreme Court refused to strike down this law stating that, “it is not correct to say that the remedy of a person aggrieved by an order under the section was illusory.”
The law was challenged again in the Dr. Ram Manohar Lohiya case of 1967. But, once again it was rejected with the court ruling that “no democracy will exist if the public order is allowed to be disturbed by a section of society.”
Then comes the famous case of Madhu Likhaye v. S.D.M. Monghyr (1970), where the Magistrate gave a prohibitive order under section 144 in order to avoid a fight or a scuffle between members of two labour unions. The petitioner challenged this provision with the contention that the powers are arbitrary. However, a seven judge bench headed by Hidayatullah C.J., stated that section 144 “is not an ordinary power and such power shall be used in a judicial manner and under judicial scrutiny” and thereby, held it to be constitutional. There were 5 points stated in the judgement justifying the constitutionality of section 144:
No doubt the Magistrate has the power to pass an ex-parte order, but notice should be served to the other person. The ex-parte order can be passed only in extremely emergent situations.
The person who is aggrieved has a right to challenge the order if they feel so. This is supportive of the fact that this section is not arbitrary.
To emphasize the above right, a right to hear and to cause is also given to the person who challenges the order. This ensures that the principle of Natural Justice is upheld.
The court also stated that the aggrieved party has the right to challenge the propriety of the order. This ensures that the action of the Magistrate is more reasonable and rational.
Lastly, the High Court has the power to quash the order or ask for material facts. This power is given under Section 435 of the code read with section 439. This power allows for greater accountability of the Magistrate’s action.
Therefore, the court has held that section 144 is constitutional. There may be restrictions on the fundamental right but they fall under the ambit of ‘reasonable restrictions’ and hence not violative. The mere fact or anticipation that a law may be abused is no reason to strike it down.
Some basic and necessary principles that are to be kept in mind were explored in case of Shaik Piru Bux v. Kalandi Pati (1970), which are as follows:
The power given under section 144 of Cr.P.C. should be used for upholding public peace and tranquillity.
The private rights of an individual can be renounced or put a restriction upon when public rights and private rights are conflicting.
The question of rights or disputes of civil nature is not considered for adjudication under this section.
The Magistrates shall exercise their power under the section against those who interfere in a lawful exercise.
Although this section gives absolute power to the Magistrates, as it allows them to terminate the rights of a person if they feel that such termination will result in favour of public interest. But, Magistrates should also consider that every person has the right to address their grievances and ask for a revision of the said order.
In these cases, the courts had been supportive of the actions of the Magistrate under Section 144. However, recently, in 2012, in the Re Ramlila Maidan incident case, the supreme court censured the government for using section 144 against the sleeping crowd in Ramlila Maidan. The order was passed at night to evacuate the Maidan and police started using lathi charge and tear gas to disperse the entire crowd. It was held by the court that Section 144 was abused by the state. Section 144 is imposed when there is an imminent threat to security. And since the crowd was peacefully sleeping, there was no threat. The situation or the emergency should be sudden and the consequences must be grave. It is also settled that the section is used when there is a need for speedy remedy and the order should contain all the material facts. In this case, there was no grave danger, no emergent situation and there were no sufficient material facts to substantiate the reason. The threat should be real and not illusory. Hence, the Hon’ble judges concluded that Section 144 was not called for this case and this action was arbitrary. Compensation was also given to people who suffered grave and simple injuries.
Thus, it can be said that the powers provided by Section 144 are to be used prudently. The actions done under this section are anticipatory and prohibitory. They are used to restrict actions even before they actually occur. Whenever there is an apprehended danger, and it becomes necessary to safeguard public interest, this section is imposed to maintain public peace. There should be sufficient grounds, a situation where a speedy remedy is required, and a written order shall be passed stating all the material facts.
Contents of Order
It should be a written order