Section 144 or CrPC 144: In 1973, the Criminal Procedure Code (CrPC) was amended to include Section 144. The magistrate of any Indian state or union territory can issue an order forbidding the gathering of four or more people in a specific place under this legislation. Section 144’s numerous sections allow all members of an “unlawful assembly” to be charged with rioting.
In the jurisdiction where Section 144 has been enacted, there are also prohibitions on handling or transporting any type of firearm. People who violate this in any way can be detained in the event of a violation. Such actions can result in a three-year prison sentence.
There can be no public movement, according to the order made under this clause. All educational institutions in the affected area will be forced to close their doors. During the time that Section 144 is in effect, no public meetings or rallies are permitted in the area.
Objective Of Section 144 Crpc
Section 144’s ultimate goal is to ensure peace and order in regions where conflict could erupt and disrupt daily life. Section 144 CrPC makes it illegal to hold certain events that would otherwise be permitted during ordinary hours.
Duration Of Section 144 Crpc
According to the procedures for implementing Section 144 in a particular jurisdiction, no order can be in effect for longer than two months. The state government might choose to prolong the validity for two additional months at its discretion, with a maximum validity of six months. Section 144 imposed can be revoked after the situation returns to normal.
Who Can Invoke Section 144 Of Crpc
- Sub-divisional Magistrate
- District Magistrate
- Any other Executive Magistrate empowered by the State Govt. on this behalf
Powers Of The Authorities Under This Provision
When there is sufficient reason to proceed under this section and immediate prevention and remedy are desired, the empowered Magistrates may direct any person to abstain from a specific act or to take specific actions with respect to certain property in his possession or under his management by a written order.
Any Magistrate, on his own motion or on the application of any aggrieved person, may revoke or change any order made under this section, either by himself, by any Magistrate subordinate to him, or by his predecessor-in-office.
Similarly, the State Government may withdraw or change any order it has issued in connection with the extension of the validity or duration of Section 144 under the proviso to sub-section (4) of the same section, either on its own initiative or in response to a complaint from any person aggrieved.
Difference Between Section 144 And Curfew:
Sphere or Scope:
The ‘Section 144’ of the Code of Criminal Procedure, 1973, grants the power to impose orders in urgent circumstances of nuisance or suspected risk.
The term ‘curfew’ is used to describe an order issued under Section 144 of the Code of Criminal Procedure, 1973. In more serious instances, curfew orders are given for a set length of time.
Purpose or Grounds:
Section 144′ – To impose limitations on meetings of five or more people in order to prohibit public gatherings in order to prevent nuisance or suspected danger to human life or property, or to maintain peace and order in places where existing trouble threatens to disturb daily life.’Curfew’ – To compel individuals to stay indoors (and off the roadways) for a set period of time in order to avoid danger to human life, health, or safety, as well as to maintain public tranquility, etc. During curfew, essential services are also shut off.
SECTION 144′ can be enforced using the mechanism set out in Section 188 of the Indian Penal Code, which states that if disobedience by any person/persons causes obstruction, annoyance, or injury to persons lawfully employed, that person/persons will be punished with one month’s imprisonment, a fine of two hundred rupees, or both. If such disobedience by any person/persons endangers human life, health, or safety, or causes or threatens to provoke a riot or affray, that person/persons will be punished with imprisonment for up to six months, a fine of up to one thousand rupees, or both.
‘Curfew’ can be enforced using the process outlined in Section 188 of the Indian Penal Code, which entails the imposition of the same penalties as those imposed for violating Section 144 orders but a harsher punishment is given in case of violation of curfew.
Constitutional Validity of Section 144
The provisions of this section do not go beyond the constitutional restrictions for restraining the freedoms protected under Article 19(1) (a), (b), (c), and (d). The restrictions are acceptable, and the person who is subjected to an order under section 144 of the CrPC has access to adequate protections.
The section is not unconstitutional when properly applied. In the case of Madhu Limaye vs S.D.M. Monghyr, it was declared that the fact that it can be subdued is no reason to hold it as a constitutional violation.
Why is it that the Exercise of Section 144 Power is so Frequently Criticized?
The objection is that it is excessively broad, and the section’s terms are broad enough to provide a magistrate total authority that might be used unjustifiably. A revision request to the magistrate personally is the first recourse against such an order. If a person’s basic rights are being violated, he or she might file a writ petition with the High Court. Nevertheless, there are concerns that the rights may have already been violated before even the High Court intervenes. The application of Section 144 to the rest of the state, like in Uttar Pradesh, has also been criticized, as the security situation varies by region.
Absolute control: The section’s terms are broad enough to grant a magistrate absolute authority, which might be used unjustifiably. A revision plea to the magistrate alone is the first recourse against such an order.
Writ petition flaws: If a person’s basic rights are under jeopardy, he or she can file a writ petition with the High Court. At most, the courts can ensure that perhaps the procedure was conducted appropriately, and they cannot also replace the officer’s decision on the spot.
Not especially designed for this kind of threats: Section 144(1) gives authorities to achieve specific purposes, such as preventing any harm to person and property, but also broadens the scope of these aims to accommodate the logic of crises.
Moreover, there is nothing about the legislation that specifies the administrative officer can only do A, B, or C to, say, deter any “disturbance of public calm” where no direct threats to life or property are present.
The application of Section 144 to a state, like in Uttar Pradesh, has also been criticized, as the peace and stability varies by region.
Violation of Fundamental Rights and Section 144
Article 19(1) (b) of the Constitution states that it may be used to violate the freedom to gather peacefully and without arms.
Shutting down the internet might be construed as a direct infringement of Article 19(1) (a) of the Indian Constitution, which guarantees the right to freedom of expression.
An violation of Article 19(1)(g) of the Constitution’s right to “practise any profession, or to carry on whatever employment, trade, or business”: The substantial losses incurred by e-commerce businesses as a result of the internet’s premature shutdown is a violation of this right. Only the circumstances given out in Article 19 (6) can limit this fundamental right.
In The Context Of Covid 19, What Role Does Section 144 Play?
Quarantine and lockdowns has become the norm as the globe saw the onset of a pandemic caused by the unique COVID19 virus. Sec. 144 was enacted in a number of states to limit efforts to halt the virus from spreading. The issuing of an order in the protection of life has been one of the prerequisites listed in the section. The coronavirus epidemic was considered a danger to human life by the Magistrates, who were accurate in their assessment. The instructions that were approved were a critical instrument in the fight against the virus’s spread.
Internet Shutdowns During Section 144 Impostition
The UN Human Rights Commission enacted a non-binding resolution in 2016 that essentially proclaimed internet access a core human right. India, on the other hand, was also one of the 17 countries that strongly objected to the resolution at the time. Since that day, the judiciary has indeed been asked to determine whether the freedom to use the internet is covered by the Fundamental Right to Life. The Kerala High Court decided in Faheema Shirin that it is indeed a right under Art.21, despite the State’s arguments. In a petition filed fairly early this year in response to Kashmir’s internet blockade, the Supreme Court backed this viewpoint.
A blanket ban mostly on the internet is thus a blatant attack on the freedom of speech and expression guaranteed by the Constitution. This right includes the capacity to converse through every medium, including print, electronic, and audio-visual. As a result, imposing a blanket restriction on internet access is in direct violation of basic rights requirements.
The Supreme Court ruled in Ramlila Maidan that internet shutdowns must only be utilized as a last option and not on a regular basis. S.144 is a preventative measure that does not justify restricting internet access in the heat of the moment.
Anti-CAA Protests and Section 144
In 2019, the NDA government introduced the Citizenship Amendment Act, 2019, seven years after the Supreme Court decided on Ramlila Maidan. Protests erupted across the country, prompting the authorities to impose Section 144 in many areas in an effort to suppress the uprising. The constitutionality of the decrees has been called into question time after time after time again by the courts, also with Karnataka High Court declaring such an imposing on Bangalore to be downright unlawful.
Usually, the judiciary has said no, with the most notable exception being J N.V. Ramana’s ruling in Anuradha Bhasin in January 2020, in which he concluded that S.144 cannot be utilized to prevent the exercise of democratic rights. Regardless of what is jurisprudentially proper, the abuse of the section occurred all throughout protests in an ongoing effort to stifle voices.
Analysis With Respect To Landmark Judgements:
The magistrate in the case ofRadhe Das vs Jairam Mahto, where the disturbance was over a piece of property, had ordered that the defendants be barred from entering the premises under Section 144 of the CrPC. Respondents also requested prohibition of petitioners during the legal procedures, which the magistrate allowed. In response, the respondents alleged that the order infringed on their right to possession of the property. The court ruled that individual rights must be given up for the greater good of society, and that the action should be taken to avoid public peace and tranquility.
Before application of Section 144, it is important to remember the following points, which were explained in the case of Manzur Hasan vs Muhammad Zaman:
- The power should only be utilized to protect the peace and tranquility of the public.
- Private rights may be temporarily suspended while the public interest is prioritized.
- Civil rights or disputes over property titles are not subject to decision in a case under Section 144.
- The concern should be for a vast proportion of the community, not just a small portion.
In the case of Shaik Piru Bux vs Kalandi Pati, the principles were upheld.
The Supreme Court concluded in Mazdoor Kisan Shakti Sangathan v Union of India and Anr. that the order was not illegal, but that it recognised the freedom to protest and requested the government and police to provide guidelines.
The Supreme Court declared in Babulal Parate v State of Maharashtra (1961) that the authority can be employed even if there is no imminent threat. It should, however, be based on substantial evidence that shows that prompt prevention of specific conduct is required to maintain public safety.
The criminal justice system in India stinks of colonialism, both in form and practice. The widespread use of Section 144 is only one example of a system that has already been significantly unbalanced in terms of power balance. The section’s objective, in theory, is admirable. It does not provide the state carte blanche authorities, but it does limit the state’s unrestricted power in the event of an emergency. It is, at its core, a precautionary measure that should be used as infrequently as possible.
Section 144 is a helpful tool for dealing with emergency situations. However, the lack of any particular tailoring of broad executive powers to specific purposes, along with the executive branch’s lack of judicial control, makes it ideal for abuse and exploitation. The Magistrate should conduct an investigation and note the urgency of the situation before acting under this clause. Hence the need to strike a balance between the legislature’s grant of unlimited powers to deal with emergency situations with the need to maintain individuals’ personal liberty as well as other freedoms guaranteed by the Constitution’s fundamental rights is a must.
- RV Kelkar, Criminal Procedure 814 (5th ed., 2012)
- criminal procedure code 1973 vol. 2. India: LexisNexis Butterworths Wadhwa Nagpur, 2010.
- Law Commission of India, Injuries in Police Custody, Report No.113, (July 1985)
- Namrata Jain, (2017) Analysis of Section 144 of Criminal Procedure Code, 6 Supremo Amicus, p.44
- Lovish Garg, (2016) Legality of the Internet Shutdown under Section 144 of Code of Criminal Procedure, 3 Communication, Media, Entertainment and Technology, p.95