[Explainer] Section 144 CrPC : What Are The Grounds To Impose Restrictions?

"Section 144 CrPC" - this provision is now very familiar to people, thanks to its widespread invocation by police forces across the country in order to contain the massive public protests against the recently passed Citizenship Amendment Act.The entire state of Uttar Pradesh with a population of 200 million was placed under Sec 144 curfew, as announced by UP DGP through Twitter. The Bengaluru Police Commissioner justified Section 144 saying that fundamental rights can be curbed when 'inconvenience' is caused to others .'Sec 144' is in force and no permission for any gathering has been given for 19.12.19. Pls do not participate. Parents r also requested to counsel their children.— DGP UP (@dgpup) December 18, 2019So what does this 'dreaded' Section say.Section 144 of CrPC gives power to a District Magistrate, a sub- divisional Magistrate or any other Executive Magistrate on behalf of the State Government to issue an order 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".As per the Section, the order can be passed only "if such Magistrate considers", that the direction is likely to prevent :obstruction, annoyance or injury to any person lawfully employeddanger to human life, health or safetydisturbance of the public tranquility, or a riot or affray This order can be passed against a particular individual or general public. The order can be passed even ex-parte.So, can this power be exercised by the executive officer on a mere subjective satisfaction regarding likelihood of danger?Before getting to the answer of that question, it needs to be kept in mind that the orders under this provision will lead to the infringement of fundamental rights to freedom of speech and expression, assembly and movement guaranteed under Articles 19(1)(a),(b) and (c) of the Constitution. Hence, the orders under Section 144 have to meet the test of "reasonable restrictions" as per Article 19.To ascertain whether a restriction on liberties guaranteed under Article 19 is reasonable or not, the Supreme Court has developed the "test of proportionality". In the Constitution Bench decision in Modern Dental College case (2016), the SC held that a law imposing restrictions will be treated as proportional if : it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and if such measures are necessary.In Puttaswamy case(2017), the SC 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). So, the legality of the orders passed under Section 144 CrPC will be tested on the basis of these principles of 'reasonableness' and 'proportionality'.Senior Advocate Menaka Guruswamy has observed in her research on Freedom to Assemble and Freedom of Association that contradictory approach of Article 19 (1) (b) and (c) of the constitution and section 144 of CrPC is a "reflection of a colonial legacy and the unquestioning adoption of most of the provisions of the 1872 Code of Criminal Procedure by the contemporary Indian State".Mere likelihood of danger not a ground to invoke Sec.144As held by the Supreme Court, mere apprehension of danger is not a sufficient ground to curb citizens' rights by invoking Section 144 CrPC.There should be 'genuine' apprehension of 'imminent' danger and not mere 'likelihood' or 'tendency'.In Babulal Parate v State of Maharashtra (1961) case, the SC held that the power can be used even in anticipation of danger. But it should be based on sufficient materials which show that immediate prevention of certain acts is necessary to preserve public safety. "The test laid down in the Section is not mere `likelihood' or `tendency'. The section says that the magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. 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".In Madhu Limaye v SDM (1970) case, the SC upheld the Constitutionality of Section 144 on the reasoning that it constituted a reasonable restriction 'in the interest of public order'. However, the Court added that this power should be exercised only in emergent and urgent situations : "The gist of action under S.144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte it...

[Explainer] Section 144 CrPC : What Are The Grounds To Impose Restrictions?

Arabhi Anandan

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