Section 144 CrPC Cannot Be Used As A Tool To Prevent Legitimate Expression Of Opinion: SC [Read Judgment]

In its judgment in Kashmir Lock Down case, the Supreme Court observed that the power under Section 144 of the Criminal Procedur cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights.The Court said that provisions of Section 144, Cr.P.C. will only be applicable in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. "As emergency does not shield the actions of Government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always", the bench observed thus while starting its discussion about the restrictions under Section 144 CrPC. The bench comprising Justice NV Ramana, Justice R. Subhash Reddy and Justice BR Gavai summarised the principles on exercise of power under Section 144 CrPC thus: The power under Section 144, Cr.P.C., 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 power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. An order passed under Section 144, Cr.P.C. should state the material facts to enable 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. This will enable judicial scrutiny of the aforesaid order.While exercising the power under Section 144, Cr.P.C. 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 Section 144, Cr.P.C. would be an abuse of power. Section 144 CrPC Power exercisable also when there is an apprehension of danger.One of the arguments raised on behalf of the petitioners was that such orders under Section 144 CrPC passed in mere anticipation or apprehension cannot be sustained in the eyes of law. Rejecting the same, the bench adverted to Babulal Parate case wherein it was held 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. But the Court qualified it by saying that the 'danger' must be in the nature of 'emergency' and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.Freedoms Of Speech & Expression, Trade & Commerce Through Medium Of Internet Are Constitutionally Protected : SC In Kashmir Case [Read Judgment]Cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights On the concern expressed by Senior Advocate Kapil Sibal that in the future any State could pass such type of blanket restrictions, for example, to prevent opposition parties from contesting or participating in elections, the bench said: " In this context, it is sufficient to note that the power under Section 144, Cr.P.C. cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights. Our Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144, Cr.P.C. unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger. It ought to be noted that provisions of Section 144, Cr.P.C. will only be applicable in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed [refer to Babulal Parate case (supra)]. It is enough to note that sufficient safeguards exist in Section 144, Cr.P.C., including the presence of judicial review challenging any abuse of power under the Section, to allay the apprehensions of the petitioner. " Another contention raised was that 'law and order' is of a narrower ambit than 'public order' and the invocation of 'law and order' would justify a narrower set of restrictions under Section 144, Cr.P.C. On this, the bench, referring to various precedents, said: "'law and order', 'public order' and 'security of State' are distinct legal standards and the Magistrate must tailor the restrictions depending on the nature of the situation. If two families quarrel over irrigation water, it might breach law and order, but in a situation where two communities fight...

Section 144 CrPC Cannot Be Used As A Tool To Prevent Legitimate Expression Of Opinion: SC [Read Judgment]

Ashok Kini

"Repetitive orders under Section 144, Cr.P.C. would be an abuse of power."

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