Section 144 can’t be used to quell dissent, repetitive orders an abuse of power: SC
Section 144 is a major tool in the hands of the Executive Magistrate to prevent obstruction, annoyance, injury etc. to the Public in general. Once Section 144 is promulgated, the Penal Provision of it, breach is covered u/s 188 of IPC, where the disobedience of the order causes or tends to cause obstruction, annoyance or injury, to any persons lawfully employed or danger to human life, health or safety, or a riot or an affray.
The Supreme Court recently ruled that Section 144 of the Criminal Procedure Code, imposing restrictions on citizens’ fundamental right to assemble peacefully, cannot be invoked as a ‘tool’ to ‘prevent the legitimate expression of opinion or grievance or exercise of any democratic rights’.
Facts of the case
In its judgment on restrictions imposed on movement of people in J&K after the August 5 decision to remove its special status and divide it into two Union territories, the bench said, “Power under Section 144 CrPC cannot be used as a tool to prevent legitimate expression of opinion or grievance or exercise of any democratic rights.”
Whether repetitive orders under Section 144 would be an abuse of power?
According to the section , the order or the action taken under this section is anticipatory in nature i.e. certain actions are restricted even before they actually occur. Whenever as per the opinion of the magistrate ‘there is sufficient ground for proceeding under this section’, the law is applicable.
The bench in this case however emphasizedthat application of the provision should be limited to situations of emergency and for preventing obstruction and annoyance or injury to any person lawfully employed. It also said “repetitive (prohibitive) orders under Section 144 would be an abuse of power” and directed authorities to notify all prohibitory orders passed in J&K so as to enable aggrieved persons to challenge it at an appropriate forum.
But as in the case of the part of the verdict dealing with the suspension of internet in J&K, Justices N V Ramana, Subhash Reddy and B R Gavairecognised the need for the state to use Section 144. The thrust appeared to be more on the prevention of misuse of the provision; to ensure that it was used judiciously rather than turned into a blunt weapon.
Thus, the court said the provision, which was both remedial and preventive, could be used not only to deal with an existing danger but also in situations when there was apprehension of one, so long as the “danger” qualified to be an emergency and likely to result in “obstruction and annoyance or injury to any person lawfully employed”.
The bench said the use of the provision was subject to judicial review and, hence, should be resorted to reasonably and on the basis of material facts. “While exercising the power under Section 144 CrPC, the magistrate is duty bound tobalance rights and restrictions based on the principles of proportionality and apply the least intrusive measure,” it said.
The effort to negotiate the duel between the utility of Section 144 for dealing with emergency-like situations and the experience of its misuse came across clearly in the court’s observation, “As emergency does not shield the actions of the government completely, disagreement does not justify destabilisation; the beacon of rule of law shines always.”
However, it also cautioned against too much stress on the “proportionality doctrine” to temper restrictions in cases relating to the security, sovereignty and integrity of India.It noted that imposition of the section over a larger area and longer duration required a higher threshold.
Referring to senior advocate Kapil Sibal’s argument that governments in future could misuse powers under Section 144 to impose blanket restrictions to prevent opposition parties from elections, the bench said, “Our Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144 CrPC unless there is sufficient material to show likely incitement to violence or threat to public safety.”
Therefore it is only appropriate that this power may be used in a balanced manner, without abuse.
For case specific advice, please contact best/top/expert criminal lawyer advocate in high Court Chandigarh of Punjab Haryana taking cases in Panchkula Mohali Kharar Zirakpur.
This post is written by Rachita Yedhula.
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