Sec 144 cannot be used to suppress the legitimate expression of opinion or grievance, or the exercise of democratic rights. (File photo)
In its order on Jammu and Kashmir on Friday (January 10), the Supreme Court made the following points with regard to the use of Section 144 of the Code of Criminal Procedure (CrPC), 1973.
• Sec 144 cannot be used to suppress the legitimate expression of opinion or grievance, or the exercise of democratic rights
• When Sec 144 is imposed for reasons of apprehended danger, that danger must be an “emergency”.
• The imposition of Sec 144 must strike a balance between the rights of the individual and the concerns of the state.
• Powers under Sec 144 should be exercised in a reasonable and bona fide manner, and the order must state material facts in order to enable judicial review.
What is Section 144?
Section 144 CrPC, a law retained from the colonial era, empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate specially empowered by the state government in this behalf to issue orders to prevent and address urgent cases of apprehended danger or nuisance.
The magistrate has to pass a written order which may be directed against a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
In emergency cases, the magistrate can pass these orders without prior notice to the individual against whom the order is directed.
What powers does the administration have under the provision?
The magistrate can direct any person to abstain from a certain act or to take a certain order with respect to certain property in his possession or under his management.
This usually includes restrictions on movement, carrying arms and from assembling unlawfully. It is generally believed that assembly of three or more people is prohibited under Section 144.
However, it can be used to restrict even a single individual. Such an order is passed when the magistrate considers that it is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.
However, no order passed under Section 144 can remain in force for more than two months from the date of the order, unless the state government considers it necessary.
Even then, the total period cannot extend to more than six months.
Why is the use of power under Section 144 criticised so often?
The criticism is that it is too broad and the words of the section are wide enough to give absolute power to a magistrate that may be exercised unjustifiably.
The immediate remedy against such an order is a revision application to the magistrate himself. An aggrieved individual can approach the High Court by filing a writ petition if his fundamental rights are at stake. However, fears exist that before the High Court intervenes, the rights could already have been infringed.
Before Friday’s order, how did the courts rule on Section 144?
In ‘Re: Ardeshir Phirozshaw … vs Unknown’ (1939), a British judge of the Bombay High Court censured the Chief Presidency Magistrate in Bombay for passing an illegal order under Section 144: “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.”
The judge criticised application of power under Section 144 for two months, “not only to the particular riot, but to any past riots and any future riots which may take place within the next two months are strong measures and; require cogent facts to justify them”.
The first major challenge to the law was made in 1961 in ‘Babulal Parate vs State of Maharashtra and Others’.
A five-judge Bench of the Supreme Court refused to strike down the law, saying it is “not correct to say that the remedy of a person aggrieved by an order under the section was illusory”.
It was challenged again by Dr Ram Manohar Lohia in 1967 and was once again rejected, with the court saying “no democracy can exist if ‘public order’ is freely allowed to be disturbed by a section of the citizens”.
In another challenge in 1970 (‘Madhu Limaye vs Sub-Divisional Magistrate’), a seven-judge Bench headed by then Chief Justice of India M Hidayatullah said the power of a magistrate under Section 144 “is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny”.
The court, however, upheld the constitutionality of the law.
It ruled that the restrictions imposed through Section 144 cannot be held to be violative of the right to freedom of speech and expression, which is a fundamental right because it falls under the “reasonable restrictions” under Article 19(2) of the Constitution.
The fact that the “law may be abused” is no reason to strike it down, the court said.
“Occasions may arise when it is not possible to distinguish between those whose conduct must be controlled and those whose conduct is clear. A general order may be necessary when the number of persons is so large that the distinction between them and the general public cannot be made,” the court said, justifying blanket prohibitory orders passed under Section 144.
In 2012, the Supreme Court came down heavily on the government for imposing Section 144 against a sleeping crowd in Ramlila Maidan.
“Such a provision can be used only in grave circumstances for the maintenance of public peace. The efficacy of the provision is to prevent some harmful occurrence immediately. Therefore, the emergency must be sudden and the consequences sufficiently grave,” the court said.
Does Section 144 provide for communications blockades too?
The rules for suspending telecommunication services, which include voice, mobile internet, SMS, landline, fixed broadband, etc, are the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
These Rules derive their powers from the Indian Telegraph Act of 1885, Section 5(2) of which talks about interception of messages in the “interests of the sovereignty and integrity of India”.
However, shutdowns in India are not always under the rules laid down, which come with safeguards and procedures.
Section 144 CrPC has often been used to clamp down on telecommunication services and order Internet shutdowns.
In Sambhal, UP, Internet services were suspended by the District Magistrate under Section 144 recently.
In West Bengal on June 20, 2019, mobile internet, cable services, broadband were shut down by the District Magistrate in North 24-Parganas under Section 144 over communal tensions.
Under what provisions were telecom services interrupted in parts of Delhi last month?
In Delhi, the Deputy Commissioner of Police, Special Cell, issued an order to the nodal officers of telecom operators including Airtel, Reliance Jio etc to interrupt services in specific areas.
“No specific legal reason has been cited for this. Police cannot issue these directions because they are not the proper authorities to permit internet shutdown. In Delhi’s case since it is a Union Territory, it would have to be authorised by the Home Ministry itself,” Apar Gupta, Executive Director at Internet Freedom Foundation had told The Indian Express at the time.
Under the 2017 Rules, directions to “suspend the telecom services shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India or by the Secretary to the State Government in-charge of the Home Department in the case of a State Government (hereinafter referred to as the competent authority)…”
The Rules also say that in case the confirmation does not come from a competent authority, the orders shall cease to exist within a period of 24 hours.
Clear reasons for such orders need to be given in written, and need to be forwarded to a Review Committee by the next working day.