Why in news?
Recently various state governments sought to tamp down on the demonstrations by issuing prohibitory orders under Section 144 of the Code Of Criminal Procedure (CrPC), 1973.
What is Section 144?
- Section 144 CrPC, a law retained from the colonial era, empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate specially empowered by the state government in this behalf to issue orders to prevent and address urgent cases of apprehended danger or nuisance.
- The magistrate has to pass a written order which may be directed against a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
- In emergency cases, the magistrate can pass these orders without prior notice to the individual against whom the order is directed.
What powers does the administration have under the provision?
The magistrate can direct any person to abstain from a certain act or to take a certain order with respect to certain property in his possession or under his management. This usually includes restrictions on movement, carrying arms and from assembling unlawfully.
It is generally believed that assembly of three or more people is prohibited under Section 144.
However, it can be used to restrict even a single individual.
However, no order passed under Section 144 can remain in force for more than two months from the date of the order, unless the state government considers it necessary. Even then, the total period cannot extend to more than six months.
Why is the use of power under Section 144 criticised so often?
The criticism is that definition given in the section is too vague in nature.
The immediate remedy against such an order is a revision application to the magistrate himself (conflict of interest).
An aggrieved individual can approach the High Court by filing a writ petition if his fundamental rights are at stake.
How have courts ruled on Section 144?
- In Babulal Parate vs State of Maharashtra and Others (1961), a Bench of the Supreme Court refused to strike down the law, saying it is “not correct to say that the remedy of a person aggrieved by an order under the section was illusory”.
- It was challenged again by Dr Ram Manohar Lohiya in 1967 and was once again rejected, with the court saying “no democracy can exist if ‘public order’ is freely allowed to be disturbed by a section of the citizens”.
- In another challenge in 1970 (Madhu Limaye vs Sub-Divisional Magistrate), a seven-judge Bench headed by then CJI M Hidayatullah, It ruled that the power under Section 144 is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny”.
- The court, however, upheld the constitutionality of the law.
- It ruled that the restrictions imposed through Section 144 cannot be held to be violative of the right to freedom of speech and expression, which is a fundamental right because it falls under the “reasonable restrictions”.
In 2012, the Supreme Court came down heavily on the government for imposing Section 144 against a sleeping crowd in Ramlila Maidan.
“Such a provision can be used only in grave circumstances for maintenance of public peace. The efficacy of the provision is to prevent some harmful occurrence immediately. Therefore, the emergency must be sudden and the consequences sufficiently grave,”.
Does Section 144 provide for communications blockades too?
The rules for suspending telecommunication services, which include voice, mobile internet, SMS, landline, fixed broadband, etc, are the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
These Rules derive their powers from the Indian Telegraph Act of 1885, Section 5(2) of which talks about interception of messages in the “interests of the sovereignty and integrity of India”.
However, shutdowns in India are not always under the rules laid down, which come with safeguards and procedures. Section 144 CrPC has often been used to clamp down on telecommunication services and order Internet shutdowns.