By Srishti Ojha
On 5th August 2019, a Constitutional order was issued by the President of India, invoking the special status of Jammu & Kashmir and applying all provisions of the Constitution of India to the State of Jammu and Kashmir. Due to the circumstances, the District Magistrate imposed restrictions on movement and public gatherings apprehending breach of peace and tranquillity, by virtue of powers vested under Section 144 Cr.P.C.
Aggrieved by the same, petitions were filed before the Supreme Court under Article 32 of the Constitution, challenging the constitutionality of the Kashmir lockdowns, the communication lockdown and curtailment of movement and all forms of civil liberties.
The above mentioned writ petitions were dismissed by the Supreme Court pronouncing the final judgement, holding that access to Internet is a fundamental right under Article 19 of the Constitution, and laying down directives with reference to Section 144 Cr.P.C. and observing that the power under Section 144 of the Criminal Procedure cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights.
Section 144 of The Code of Criminal Procedure
Section 144 Cr.P.C empowers the District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf to issue order in urgent cases of nuisance or apprehended danger.
An order can be issued to an individual or the general public in a particular place or area to “abstain from a certain act” or “to take certain order with respect to certain property in his possession or under his management”
The order can be passed only “if such Magistrate considers”, that there is sufficient ground for proceeding under this section and immediate prevention or speedy direction is likely to prevent:
- obstruction, annoyance or injury to any person lawfully employed
- danger to human life, health or safety
- disturbance of the public tranquillity, or a riot or affray
An order passed under this section cannot remain in force for more than two months unless the State Government considers it necessary to extend it for preventing danger to human life, health or safety or for preventing a riot or any affray. In this case, it can direct that the duration of the order be extended, the period of the duration of the order not exceeding six months from the date on which the order was made.
Judgements of the Apex Court on Legal position of Section 144 Cr.P.C :
The Apex Court of our country has heard numerous cases filed against Section 144 Cr.P.C. challenging the constitutional validity of the section and there have been an equal number of decisions upholding its legitimacy, and explaining the legal position.
In Madhu Limaye vs Sub-Divisional Magistrate (1970) , the Supreme Court upheld the Constitutionality of Section 144 on the reasoning that it constituted a reasonable restriction ‘in the interest of public order.
Hidayutallah, C. J., had stated that if applied properly the section is not unconstitutional and the possibility of it being abused is no ground for it being struck down. The court had also stated that :
“The gist of action under s. 144 Is the urgency of the siutation, its efficacy in the likelihood of being able to prevent some harmful occurrences.”
In Babulal Parate v State of Maharashtra (1961), the Court had stated that The power conferred by the section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger.” The magistrate must however, be satisfied that immediate prevention the acts is necessary to counteract danger to public safety etc.
In the Ramlila Maidan Case (2012),the Court had stated that the power under Section 144 must be exercised in the interest of public order, for public safety and tranquillity, and to serve public purpose and protect public order. The threat should not be a mere perception of threat but a definite and substantiated one.
In Puttaswamy Case (2018): The court had held Test of Proportionality as a guarantee against arbitrary state action to ensure that the encroachment on the right is not disproportionate to the purpose of the law
The SC had laid down a four-fold test to determine proportionality:
(a) A measure restricting a right must have a legitimate goal (legitimate goal stage).
(b) It must be a suitable means of furthering this goal (suitability or rationale connection stage).
(c) There must not be any less restrictive but equally effective alternative (necessity stage).
(d) The measure must not have a disproportionate impact on the right holder (balancing stage).
Apex Court’s latest judgement on Kashmir lockdown and its effect on Section 144 Cr.P.C.:
“As emergency does not shield the actions of Government completely disagreement does not justify destabilisation; the beacon of rule of law shines always.”
– Justice N.V. RAMANA
The Supreme Court, in its judgement on Kashmir Lockdown, on Friday laid down certain directions regarding restrictions placed by orders passed under Section 144 of Cr.P.C. As stated by Justice Ramana, an important question of law that arose for the Bench’s consideration was if the Government can claim exemption from producing all the orders passed under Section 144 Cr.P.C. and if imposition of restrictions under Section 11 Cr.P.C. were valid
The directions given and the legal position on Section 144 Cr.P.C. as summarised in the Order are as follows :
- Restrictions be based on the Concept of Proportionality : The concept of proportionality as laid down by Supreme Court in cases, like the Puttaswamy Case, apply to an order passed under Section 144 Cr.PC. The Magistrate, while exercising his power under the section is duty-bound to balance the rights and restrictions based on these principles of proportionality and the apply the least invasive measure.
- Publication of Orders: All the orders under Section 144 Cr.P.C must be published and these orders shall be open to being challenged before the High Court or the appropriate forum. The State or the competent authorities will be responsible for doing the same.
- Subject to Judicial Review : The orders passed under this section will also be subject to judicial review. To enable judicial scrutiny of the said orders, all the important and material facts should be stated in the order.
- Order in cases of apprehension of danger : The power under Section 144 of P.C. can be exercised and an order can be passed in case of existence of a present danger and also in cases of apprehension of danger. However, in cases where danger is apprehended and not presently existent, the danger should be in nature of an “emergency” ,and the order should be for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. Therefore the power under Section 144 Cr.P.C. is both remedial and preventive.
- No suppression of speech and expression of opinion: The use of power and issuance of orders under Section 144 Cr.P.C. cannot be used to suppress the legitimate expression of opinion or exercise of any democratic right.
- Repetitive Orders Repetitive orders under Section 144, Cr.P.C. would be an abuse of power.