In recent past there have been various cases where the need to impose Section 144 CrPC have been really high. Not only just to disperse crowd due to protests but also due to the pandemic situation.

What is Section 144?

The use of Section 144 first started during The British Raj in 1861 and since then the colonial government to suppress all the nationalist protests held for struggle for independence used it. Section 144 CrPC is power given on behalf of the State Government or Union Territory to a District Magistrate, a sub- divisional Magistrate or any other Executive Magistrate to issue an order in a particular place or area to “abstain gathering of four or more people in a specified area. This provision of Section 144 terms all the members of the gathering as ‘unlawful assembly’ as and be charged under rioting.

Under what circumstances Section 144 is invoked?

As per clause 1 a magistrate can invoke order of Section 144 to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety or a disturbance of the public tranquillity, or a riot, or an affray.

What powers do a magistrate hold?

A magistrate under this section can:-

1. a) Restrict any person from a certain activity which are concerning the specific property in his possession or under his management which are mentioned in Section 144(1).
2. b) Can restrict the movement and carrying of any arms and ammunitions that can cause any threat to life and property.
3. c) A magistrate is not bound to restrict only a group of people, if can restrict a single person as per the requirement of the situation. An ex-parte order under this section and during time of emergency and where circumstances do not admit the service of summon.
4. d) He may also either on his own or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him.

Here though the powers given to magistrate are neither absolute nor carte blanche, but to supervise the situation and take appropriate decision to stop and hinder the immediate danger and threat some power along are given for which justification for action can be asked from the superior court. The order of magistrate should justify his action taken in the situation.

Debate on implication of Section 144 Cr.P.C

The terms ‘Apprehended danger’ and ‘nuisance’ are in themselves a wide term which confer enormous power to magistrate. This questions the actions taken by the magistrate as carte blanche order passed unjustifiably.

Contradiction in Section 144 CrPC and Constitutional Rights

Article 19 clause (2) to (6) of the Indian Constitution states regarding right to freedom of opinion and expression, but there are circumstances where right at large are violated and to express the same group of people join together to express their displeasure. Section 144 is imposed on any unlawful assembly and sometime an arbitrary action can hinder a peaceful gathering too. The imposition of Section 144 shall be done while keeping in mind the rights guaranteed in Article 19 of the Constitution and to keep this right secure the Supreme Court in Puttuswamy Judgment (2017) laid Test to determine Proportionality:-

Article 19, ensure fundamental rights to freedom of speech and expression assembly and moment and if an order passed by a magistrate under Section 144 it shall meet the expectations of the test of proportionality.

In Puttaswamy Case (2017), the Supreme Court laid down the following 4 fold tests;

1. Legitimate Stage:- an order restricting the right must pass a legitimate goal, which means it should reasonably justify.
2. Rationale Stage:- There should be a suitable means to execute the action,
3. Necessity Stage:-  Though the action must be less restrictive but it should be effective as well.
4. Balancing Stage:- There must not be an action which is disproportionate with the ongoing circumstances, and must not have a disproportionate impacts on the right of the person. Moreover, the measures taken should be ‘rationally connected to the purpose’.

In Modern Dental College Case (2016) the Constitution Bench decision, the Hon’ble Supreme Court held that an order from magistrate imposing restrictions will be treated as proportional only if :

1. It is meant to achieve a proper purpose, the word proper purpose means that right of an innocent should not be violated with any discretionary decision, and;
2. If the measures taken to achieve such a purpose are rationally connected to the purpose, the magnitude of the action should not surpass scenario of the situation and;
3. If such measures are necessary, any measures under this section shall only be taken only when necessary and not otherwise. There must be reasonable justification for taking action under Section 144.

CONCLUSION

Section 144, albeit discretionary, is an essential element in the set of measures that are undertaken by the executive body of any district in order to prevent as well as manage situations of urgency.

There have been numerous cases filed against this Section, challenging the constitutional validity of the section and an equal number of decisions upholding its legitimacy. Though discretionary powers are conferred upon the Magistrate under this section, there are various fetters on its exercise so as to prevent any arbitrariness or unfairness in the order. The fact that the High Court can review the order of a Magistrate under this section makes the exercise of this power more rational.

Moreover, the increasing cases of riots and other incidents ruining public peace and tranquility has made it mandatory for the Magistrates to have such powers so as to secure the common people the safety and peace which is essential for their living.

However, at this juncture, it may be opined that there appears to be a need to balance the granting of plenary powers by the legislature to deal with emergent situations, and the need to protect the personal liberty and other freedoms granted to the citizens under the fundamental rights of the Constitution, especially Article 21.