Section 144, CrPC: The Iron Fist

In February 13, the Principal Bench of the Karnataka High Court struck down an order of the Bengaluru police commissioner (vested with the powers of district magistrate) imposing Section 144 of the Criminal Procedure Code (CrPC) across the city during the anti-Citizenship (Amendment) Act (CAA) protests from December 19 to 21, 2019. Under this Section, a District Magistrate (DM) may “by a written order stating the material facts of the case direct any person to abstain from a certain act 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, or an affray”.

The High Court held that the impugned order was illegal and did not stand the test for exercising such an extraordinary power as laid down by the Supreme Court in Anuradha Bhasin vs. Union of India. These tests are:

• The danger contemplated for imposing Section 144, CrPC should be in the nature of an “emergency”.
• This power cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
• An order passed under this Section should state the material facts to enable a judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind.
• While exercising the power under this Section, the magistrate is duty-bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure.
• Repetitive orders under this Section would be abuse of power.

The High Court acknowledged the necessity of these conditionalities because a prohibitory order under Section 144 has a chilling and terrifying effect on the citizens by depriving them of their fundamental rights, particularly Article 19 (assembling peacefully and without arms and practising or carrying on any occupation, trade or business) and Article 21 (life or personal liberty). Such a promulgation lets loose a chain of criminal liabilities on those participating in any assembly which has been declared unlawful even if peaceful. They commit cognisable offence and under Section 151 of the CrPC, a police officer has powers to arrest without a warrant any person who has a design to participate in unlawful assembly. Such participation attracts several Sections, 143, 145, 146, 147, 149, 150 and 151, of the Indian Penal Code (IPC), some of which are punishable with two years’ rigorous imprisonment, even for innocent, unarmed men, women and children.

In view of the enormity of an order under Section 144, the DM should be extremely careful and fully satisfied that there is sufficient ground for proceeding under this Section. An order passed when there is no “emergency” is without jurisdiction. And before proceeding under this Section, the magistrate should hold an inquiry and record the urgency of the matter. For the purposes of Section 144, it is only the magistrate issuing the order who should believe that apprehension of nuisance or danger exists. This is a subjective satisfaction based on the information, intelligence reports and other material that have been brought to his notice. No order can be passed under this Section on the complaint/representation of any party. Neither can anybody—High Court, government or police—goad the magistrate into it.

But of late, such essential requirements are more observed in the breach than compliance. A typical example is the Section 144 order promulgated at Tuticorin in Tamil Nadu on May 21, 2018, which led to an extreme form of police repression that claimed the lives of 13 people and the limbs of many more. For years, people of this small port town have been waging a struggle against Vedanta Limited’s Co­pper Smelter Plant (Sterlite, which is a subsidiary of Sterlite Industries, a company owned by Vedanta) which has been poisoning the water they drink and the air they breathe. In their arrogance, this private entity demanded the DM impose Section 144 to protect their personnel, plant and machinery. When the DM did not oblige, they moved the Madurai Bench of the Madras High Court for a writ of mandamus to direct the DM to do so. Surprisingly, without jurisdiction, a High Court judge determined, based on a pamphlet supplied by the offending party, that there would be a serious law and order situation and therefore Section 144 should be imposed in Tuticorin or the DM would be guilty of “de­reliction of duty” and the “Court would be justified in invoking its powers under Article 226 of the Constitution”. On receipt of this order, the superintendent of police of the district wrote a letter to the DM on May 21 virtually dictating the Section 144 order as it was pronounced later. This is just not permissible.

In the meantime, Tuticorin was converted into a fortress with a formidable police force comprising an additional director general of police, four inspector generals, two deputy inspector generals, 15 SPs and scores of additional SPs, deputy SPs and about 3,000 police personnel along with squads of commandos. Sure enough, the “prohibitory order” issued by the DM abiding by the High Court diktat and the SP’s recommendation brought ruthless “Police Raj” repercussions seen in the “massacre of innocents” the next day, ie, on May 22, 2018. On that day, one saw terrifying visuals of trained sharp-shooters perched on a police van and public building shooting unarmed “protesters” with self-loading, semi-automatic rifles with the pronounced intention (heard over audio) to kill.

All this was done to pander to the wishes of an MNC. This was acknowledged by the Sterlite Copper CEO, P Ramnath, on the day of the massacre: “I totally regret what happened today. It was totally uncalled for and is really unfortunate. We had, in fact, taken all the precautionary steps by getting the court order for Section 144…. Although we expected it to be peaceful given Section 144 and considering the efforts made by the police and the collectorate.”

Thus Section 144 was used as a physical weapon against democratic voices. Now, the Moradabad district administration in UP is using this Section as a financial weapon by slapping Imran Pratapgarhi, a poet-politician, with a fine of Rs 1.04 crore “for violating Section 144” by participating in an anti-CAA protest. A notice issued by the additional DM-City asking him to pay said: “One company of Rapid Action Force and a half section of Provincial Armed Constabulary have been deployed at the protest site. It amounts to a total expenditure of Rs 13.42 lakh per day…the total sum spent on security amounts to Rs 1,04,08,693.”  What a way to protect the fundamental right of freedom of speech and assembly!

In the police commissionerate system, things are worse. Take the example of Chennai metropolis. In an autocratic manner, the Chennai police insist that citizens should get “permission” to perform even basic democratic rights and duties. The mere mention of a mild protest sends them into a tailspin, and a posse of police personnel much larger than the “protesters” is deployed to intimidate them. More often, their attitude is menacing and arrest/detention without any charge has become routine. Even women are not spared and ladies drawing kolam in front of their homes are detained.

The Chennai City Police is doing all this by grossly abusing/misusing Section 41 of the Madras City Police (MCP) Act, 1888, an anachronistic and archaic colonial legislation meant to ruthlessly crush any protest or dissent against British rule. By no stretch of imagination can this be relevant in free India. Sub-Section 41(1) of the MCP Act does not obligate citizens to seek “permission” from the police for conducting any assembly or meeting in a public place. And certainly not in a private place or hall. The Section only authorises the police commissioner to regulate. It does not give him any powers to “prohibit” or “prevent” any assembly. Such power is found only under Sub-Section 41(2): “…Commissioner may, by order in writing, prohibit any assembly, meeting or procession if he considers such prohibition to be necessary for the preservation of public peace or safety.”

This sub-section is redundant and should have been scrapped as soon as the Code of Criminal Procedure was enacted by Parliament in 1973 incorporating Section 144 which gives this power and authority to DMs. As we have seen, the prohibitory order is draconian. But it has built-in checks and balances and clear Supreme Court guidelines. But Sub-Section 41(2) of the MCP Act has none and by applying this on a non-stop basis, the police become dictatorial. As the Chennai police chief is vested with police and magisterial powers under the MCP Act and CrPC, respectively, this is a “double jeopardy” for citizens, with the commissioner acting as super-cop and magistrate.

Democracy and fundamental rights are being routinely jeopardised by abusing legal provisions meant only for emergency situations. Politicians wanting to hold on to power and carpetbaggers amassing wealth may want it. Should civil servants who have sworn to uphold democracy and fundamental rights be party to this? The jury is out on this.

—The writer is a former Army & IAS officer

Lead picture: UNI