SC directs for reviewing orders imposing Section 144

The court said, while exercising the power, the magistrate was duty-bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure.

The Supreme Court on Friday said that executive magistrates issuing repetitive orders imposing restrictions on assembly of four or more people in an area would be an abuse of power.

It clarified that such restrictions should spell out real facts on the threat to public order and tranquillity, which would be open for judicial review, as the orders had direct consequences on fundamental rights of the general public.

“As emergency does not shield the actions of government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always,” a bench of Justices N V Ramana, R Subhash Reddy and B R Gavai said, dealing with the challenge to the orders issued under Section 144 of the Criminal Procedure Code to prevent gathering of four or more people in J&K.

The court said, while exercising the power, the magistrate was duty-bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure.

The court directed the authorities in J&K to review forthwith the need for continuance of any existing orders issued under Section 144 of the CrPC.

“The power, being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an 'emergency' and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed,” the bench said in its judgement passed on a writ petition filed by senior Congress leader Ghulam Nabi Azad and other.

The court said that such power must be exercised in bona fide and reasonable manner. It cannot be used to suppress the legitimate expression of opinion or grievance or exercise of any democratic rights.

Solicitor General Tushar Mehta said the historical background of the region, cross border terrorism, infiltration of militants, security issues, etc cannot be forgotten while testing the legality of the orders.

He said these orders were passed in the perceived threat to law and order, to prevent any loss of life, limb and property. However, the orders under Section 144 CrPC do not explain these aspects, it said.

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