Section 144 of the CrPC (The Code of Criminal Procedure): India
This is a collection of articles archived for the excellence of their content. |
Contents |
Introduction
Conditions for its use; duration; procedures
TNN, January 16, 2020: The Times of India
Some reasons why Sec 144 of_the_CrPC was imposed in 2019.
From: TNN, January 16, 2020: The Times of India
From Bengaluru to Delhi, Mumbai to Patna, Kashmir and north-east, Sec 144 is routinely imposed for reasons that fall short of the provision’s ambit. The 1973 law authorises the executive magistrate of a state or territory to issue an order prohibiting assembly of four or more people in an area or city limits when such gatherings can potentially lead to “unrest” or “riots”.
What are the conditions required to impose Sec 144?
Courts and lawyers have frequently called out the “abuse” of Sec 144. “Supreme Court has reminded us that authorities cannot silence dissent by its monstrous abuse unless preconditions for invocation of the same exist,” said Abad Ponda, an advocate in Mumbai, adding, "You cannot put the cart before the horse."
Judges have repeatedly held that magistrates must pass an order in writing in which material facts are specified, justifying the need to impose Sec 144, said SC advocate KV Dhananjay.
Those conditions, pointed out Ponda, “must exist prior to the passing of the order and at the time of its passing”. It otherwise “violates fundamental rights under Article 19”, he said.
Former additional solicitor general of Uttar Pradesh, Ashok Nigam, said, “Proper reasons must be publicised and circulated by officials specifying against whom they want to exercise it so that an individual can seek judicial review of the section imposed.”
An Aurangabad notification on December 21 cited intelligence inputs on the possibility of terrorists or anti-national elements impacting communal harmony to impose Sec 144 for a 60-day period. Yet, the very next day police sought to play down these fears. The police hasn’t, however, revoked the order, the trigger for which was a rally against the CAA-NRC.
Where and for how long can Section 144 be imposed?
No order under Sec 144 is to remain in force for more than two months, but states can, and do, extend it for up to six months. In places like Lucknow’s centrally located Hazratganj area, Sec 144 is “always in place”. SHO of Hazratganj, Dheerendra Kushwaha, said police are “forced” to seek its imposition as “both Vidhan Sabha and the Lok Bhawan are in the vicinity”.
Madhu Garg, the UP secretary of a women’s organisation, said that “permanent imposition of Sec 144 at any place is draconian”. The maximum sentence for flouting the law is a three-year jail sentence. In Delhi, too, Raisina Hill, where the central ministries are located, is always under Sec 144 as is the Parliament area when the Houses are in session. The area around Supreme Court, too, has Sec 144 in force.
What does SC say about its frequent imposition?
In a January 10 judgment, SC came down on the frequent imposition of Sec 144 without sufficient reason. The court said, “...mechanical imposition of Sec 144 cannot be used to quell dissent or expression of grievance in a democracy.”
“Most courts, including the SC, have said this repeatedly, probably to remind police that for every occasion you can’t invoke Sec 144,” Ashok Mundargi, senior advocate in Mumbai said.
“In every decade after independence, SC has delivered a judgment on Sec 144. Unfortunately, nobody except activists seems to be reading those. State governments continue to abuse the provision and SC ends up repeating the same old safeguards in new judgments,” Dhananjay says.
Are instances of Section 144 recorded?
As the provision is locally administered, it’s difficult to know the number of times it has been imposed in any state. Data from the National Crime Records Bureau clubs together incidents where Sec 143, 144 or 145 were flouted. Though related, Sec 145 is imposed in disputes concerning “land or water”, covering buildings, markets, fisheries, rents or profits from property, crop, etc. Under 143, the magistrate can prohibit repetition of public nuisance. Seen as one group, though, they do not give a clear picture of why or how often 144 was imposed in any given state.
As Guwahati celebrated Bihu on January 15, residents got a breather from the city-wide Sec 144 in place for weeks now. A clause ensures that festivals should not be affected. “It will not be applied in celebratory gatherings during Bihu,” said DM Rajkhowa, DCP, security and intelligence, Guwahati.
Inputs by Prabin Kalita , Rosy Sequiera, Pervez Siddiqui, Chethan Kumar, Mohammed Akhef, Somreet Bhattacharya
What is Section 144?
Section 144 of the Criminal Procedure Code of 1973 authorises the executive magistrate of any state or territory to issue an order to prohibit the assembly of four or more people in an area. Once imposed, every member assembling can be booked for engaging in rioting and an assembly that has lawfully assembled (say, with prior permission) would be termed as an “unlawful”. Section 144 has provisions for internet shutdown as well.
The law has been in the news since December for being imposed in different towns and cities across India, in the wake of anti-citizenship law protests.
History
History and reach
The British used it to quell protests
Section 144, or “prohibitory orders” as they are called were introduced into Indian law through the first ever CrPC in 1861. It was used frequently during the British Raj to clamp down on nationalist protests.
Gandhi famously defied it to launch the Champaran satyagraha. But not only did it survive Independence, it has thrived under various governments
What does it say?
Section 144 of the Code of Criminal Procedure, 1973 (the CrPC) provides wide discretion to the State to make prohibitory orders preventing “obstructions”, or “annoyances”, the definitions of which include riots and other forms of violence. They can be issued by a district magistrate, a sub-divisional magistrate or the police (in Delhi’s case)
What is the problem with it?
Researchers at the Takshashila Institution and Vidhi Centre for Legal Policy Research note in a paper that the problem with Section 144 is that “it operates as a blanket prohibition which can be applied in an overly broad and discriminatory manner.” What’s more, non-compliance is a criminal offence.
What does the apex court say?
The Supreme Court has stated that anticipatory actions or restrictions on certain types of behaviour are sometimes needed to ensure that public order is maintained but it has also recognised the scope for misuse. In the 2012 case pertaining to the anti-corruption protests at Ramlila Maidan, the SC noted that “the perception of threat to public peace and tranquility should be real and not quandary, imaginary or a mere likely possibility.”
Beyond riots…
Prohibitory orders are usually put in place to prevent riots but they can often be used for strange reasons. For instance, in 2012, Delhi police imposed section 144 on liquor shops and vends to prevent people from drinking right outside the store. It has also been used to ban certain types of kite string or “manja” as it can lead to power cuts or electrocution of kite-flyers.
Use and misuse of Sec 144
Creative use of the Section
Abhinav Garg, March 28, 2023: The Times of India
New Delhi: An emergency provision that police historically used for maintaining law and order was used to regulate the sale of cough syrups, the flying of kites and stopping the sale of namkeen near liquor vends, a study has found.
A group of lawyers studied how police had used Section 144 of the Code of Criminal Procedure (CrPC) between January 1, 2021, and January 1, 2022. They called the report The Use and Misuse of Section 144 CrPC.
The lawyers — Vrinda Bhandari, Abhinav Sekhri, Natasha Maheshwari and Madhav Aggarwal — pointed out that historically Section 144 of the CrPC was invoked by the police to curb threats to public order because of a large assembly or a public gathering. Gatherings of persons in groups of five or more is not allowed where CrPC Section 144 is invoked. However, the team found that of the 5,400 instances of Section 144 being clamped, only 1. 5% was because police wanted to check a threat to public order. The authors warned that “Section 144 has become a convenient and limitless tool to theoretically control everyday life. For example, it can prevent a child who is visiting a public park from carrying a tiffin box. Similarly, a woman watching a movie can be stopped from entering with her handbag. ”
Disobeying an order passed under Section 144 can attract a punishment of up to one month of simple imprisonment or a fine up to Rs 200 under Section 188 of the IPC, which relates to disobedience to an order passed by a public servant.
Speaking at the launch of the report, former Chief Justice of India U U Lalit said the finding was “shocking and disturbing” and termed the report an “eye opener”.
In the period of study, Section 144 was invoked 6,100 times. The lawyers sought records under the Right to Information Act. They were able to access 5,400 instances. Police refused to share the records for the other 700. The report said that in the South and South East districts, police declined the RTI request.
The report pointed out that the cops invoked the section to “regula- te a wide variety of activities”. These included activities which are not, per se, illegal such as “paan shops near educational institutions, laser and beam lights at banquet halls and farmhouses, flying kites with metallic or glass-coated manjhas, etc”, the report says.
The report said that the section was used to stop a namkeen stall from being set up within 100 metres of any liquor vend and for installing CCTVs to check if these thelas were functioning illegally. Police also issued Section 144 of the CrPC for establishing CCTV surveillance, to regulate businesses and for securing public order that included kite flying, firecrackers or hookah bars.
Use and Misuse
Delhi/ 2021
Section 144, CrPC has been in the news recently – having been imposed in parts of Bihar and West Bengal amidst violence erupting during Ram Navami processions. The use of Section 144 has become commonplace, and is colloquially associated with orders passed by the local administration prohibiting the assembly of five or more persons in one place. But is this the reality of how Section 144 orders are passed? We set out to answer this question in an empirical study, ‘Use and Misuse of Section 144 CrPC’. This analyses all the orders passed by Delhi police during the one-year period from January 1 to December 31, 2021.
Section 144 has been a key component of public order policing in independent India and a favoured part of the toolkit for local law enforcement (district magistrates or police). It is broadly worded – allowing the local administration to direct “any person” to “abstain from a certain act” or “to take certain order with respect to certain property in his possession or management” in order to prevent public obstruction/annoyance/ danger to human life or safety.
Usually, such orders must be issued to an individual, although in cases of emergency, the order may be passed ex parte. An order issued under Section 144 is limited to two months, and can, in exceptional circumstances, be extended up till six months.
Given these limitations, we assumed while starting the study that there would be 500-1,000 orders passed during the year, mostly limited to regulating public assembly or prohibiting congregation as part of Covid-era restrictions. We could not have been further from the truth.
Based on detailed RTI responses, we found that over 6,100 orders were passed under Section 144 by Delhi police during the one-year period, of which we were able to inspect around 5,400. The scale of deployment of Section 144 thus seems far beyond what is anecdotally reported in media. If the number of Section 144 orders passed was surprising, the purpose for which police issued such orders was beyond our wildest comprehension. Rather than being used as an emergency power to deal with unique threats that may arise from time to time – say, a threat of riots or even the Covid pandemic – it appears that Delhi police adopted Section 144 as a shorthand method to pass broad-based directives on every conceivable issue. Worse still, these orders were cyclostyled and re-issued at the expiry of the two-month period, leading to a state of perpetual Section 144.
● 25% of the 5,400 orders analysed by us directed various private establishments to install CCTV cameras for surveillance purposes. The targets of these Section 144 orders were varied – (i) ATMs and banks; (ii) owners of girls’ schools/PGs/hostels; (iii) liquor vends (directed to have “sufficient cameras” and recording and playback systems); (iv) private courier services and agents monitoring who was booking a courier; and (v) other corporate entities such as owners of parking lots, amusement parks, malls, and banquet halls. Thus, Section 144 was being used to create a parallel surveillance network, with no legal accountability and zero oversight. As one order noted, given the large numbers of customers visiting ATMs and banks for day-to-day transactions it was “necessary to have quality surveillance on their day-to-day functioning”.
● A part from this, we found that 43% of the Section 144 orders analysed were issued to regulate a variety of businesses and services through a range of directives, often to compulsorily record and register documents. These orders mandated landlords/property owners/ factory owners to furnish details regarding tenants/ labourers/servants before providing them with accommodation. Banks, ATMs, and BPOs had to maintain a database of all employees, security guards, cab drivers etc and follow KYC procedures. Owners of parking lots had to instruct their employees to wear a uniform and ID card. Kabadi vendors and mobile sellers had to maintain a register recording purchasers of scrap items and second-hand phones.
These orders treat the entire class of population as potential criminals, who require constant monitoring and surveillance. Resultantly, routine everyday situations are brought under the purview of the state.
● The third category of orders we identified pertained to limiting public order threats and were of two types. A surprisingly minuscule 1. 5% of the orders analysed were focused on imposing a blanket restriction on unlawful assembly (for example, during a protest march). More surprisingly, some of the orders issued under Section 144 regulated activities such as the use of “special manjhas” while flying kites, bursting crackers, taking tiffin boxes inside cinema halls, or selling tobacco to students.
● Finally, we found some orders that were outliers and did not fit neatly into any category. These included orders prohibiting the consumption of tobacco in hookah bars; requiring prescriptions to purchase two tubes of certain drugs/ medicines such as Corex or Iodex; or prohibiting the sale of correction fluid (whiteners) to students.
Section 144 was conceived during colonial times, introduced first on the statute books in 1861. The almost unfettered powers given to district magistrates and police officers to prevent annoyance and ensure safety continued with the passage of the Constitution and the enactment of the new Criminal Procedure Code in 1973.
Supreme Court has passed a series of judgments emphasising that the use of Section 144 should be restricted and time-limited. Unfortunately, this does not seem to be the reality on the ground, at least in Delhi. We think it is time for a change and a need to rethink the place of Section 144, CrPC in our democratic polity.
The writers are lawyers practising in Delhi and are co-authors of the study, ‘Use and Misuse of Section 144 CrPC’, which can be found at https://bit. ly/3ZC1thV
