Section 144: Chaining freedom

John F Kennedy said, “Those who make peaceful revolution impossible will make violent revolution inevitable.” State governments have been imposing Section 144 of the Criminal Procedure Code (CrPC) at will to curb the anti-Citizenship Amendment Act (CAA) protests. It was used “effectively” in Bengaluru, resulting in mass detentions of lawyers, academicians, social activists and students. The widely covered one was the detention of renowned historian Ramchandra Guha. He told the high-ranking police officers of the city that they would not succeed in curbing protesters’ voices by using Section 144. However, the question is, why does Section 144, which is a colonial vestige, still exist in independent India?

After the Rebellion of 1857, the British Crown took over the administration in India from the East India Company. A Criminal Procedure Code was passed by the British parliament in 1861. Most of the provisions of the 1861 code was made applicable to India with immediate effect to give support to Indian Penal Code, 1860. Post-Independence, the government enacted CrPC in 1973, which came into force in April 1974. The bulk of the 1973 code came from the 1861 code. Section 144 was duly retained from the archaic code and since then has been imposed on countless occasions.

Section 144 confers upon executive officers unrestrained power to pass orders to tackle any urgent cases of “nuisance” or “apprehended danger” that may arise in their territorial jurisdiction, where such orders will “prevent or are likely to prevent” any adverse impact upon human life, health, safety or prevent “a disturbance of the public tranquility.” Section 144 is said to have been first used in 1861 in the state of Baroda by EF Deboo, and was later regularly enforced to put down protests by freedom fighters during the British Raj. Post-Independence it has been used by government after government to crack down on protests and agitations. Many a time, this imposition has been made arbitrarily and extended illegally.

A recent example of illegal extension came to light when the Gujarat High Court on December 26 heard a petition against the repeated renewal of orders prohibiting assembly under Section 144 and Section 37 of the Gujarat Police Act (GPA) in Ahmedabad city. The petition revealed a disturbing trend. Ahmedabad police has been renewing these prohibitory orders continuously since April 2016, making every public gathering of five or more people in the city illegal for the past three years. This is as illegal as it is bizarre. Prohibitive orders under Section 144 can be issued for only up to two months and can be extended if needed for another six months only by the state government by notifying it.

This was done even though the Supreme Court in the case of Madhu Limaye has held that Section 144 has to be used in a judicious manner which can withstand the court’s scrutiny. This means, an order of Section 144 can be effectively challenged. However, in most cases, hearings are scheduled for a date, days after the imposition order has been passed. By the time it is heard, the police will have already quashed the protest. An example of this is the challenge to Section 144 in the Karnataka High Court, where hearing on the imposition was scheduled for December 21, the last date of the declared curfew, making the hearing redundant.

The most eloquent argument against Section 144 was perhaps put forward by Justice DY Chandrachud as the Supreme Court ordered the release of five activists arrested in the Elgar Parishad case (Koregaon Bhima case). “Dissent is the safety valve of democracy. If dissent is not allowed, then the pressure cooker may burst,” he said. This means, the judiciary does understand the importance of dissent and the need to express it peacefully. However, because of lack of an express judgement with regard to the procedure which has to be followed, Section 144 is left to the whim of the executive. This is a very serious issue and has to be minutely scrutinized as the power conferred under Section 144 is extraordinary, considering the fact that it enables magistrates to suspend the lawful rights of persons if they think such a suspension will be in the interest of public peace and safety.

However, the magistrate should bear in mind that every citizen has a right to vent his grievances in public or in private and ask for redressal if disallowed from doing so. This right cannot be curtailed so long as it is exercised in a lawful manner. Further, it is a preposterous assumption of the executive to issue an order under this section on a pretended apprehension of the danger to public peace and safety. The Section 144 order should state the facts on the basis of which the magistrate has decided to invoke the action. The mere statement of a magistrate that he considered a riot to be imminent is not sufficient when the facts on the ground show that there was no urgent necessity for the imposition of Section 144. With respect to the order under Section 144 that it cannot be permanent or semi-permanent in nature, it was held in the case of Acharya Jadisharanand Avadhut that if repetitive orders are made without justified reasons, it would clearly amount to abuse of the power conferred under Section 144.

George Washington said, “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.” Therefore, to uphold this freedom, it is imperative to prevent authorities from misusing the law. Hence, it should be ensured that the reasons for imposition of Section 144 must be express and fact-based and the order should not be renewed unless “grave” and “unavoidable” circumstances continue to persist.

(The writer is a student of law at NLSIU, Bengaluru)