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Section 144 CrPC

Topics Covered:Important aspects of governance, transparency and accountability.

Section 144 CrPC

What to study?

For Prelims: What is Section 144? Who and why it is imposed? Implications?

For Mains: Concerns, challenges and ways to address them.

Context: “Section 144 CrPC” was recently widely invoked by police forces across the country in order to contain the massive public protests against the recently passed Citizenship Amendment Act.

For Prelims:

What is Section 144?

It gives power to a District Magistrate, a sub- divisional Magistrate or any other Executive Magistrate on behalf of the State Government to issue an order to an individual or the general public in a particular place or area to “abstain from a certain act” or “to take certain order with respect to certain property in his possession or under his management”.

  • This order can be passed against a particular individual or general public. The order can be passed even ex-parte.
  • As held by the Supreme Court, mere apprehension of danger is not a sufficient ground to curb citizens’ rights by invoking Section 144 CrPC.

Implications:

  1. Section 144 restricts carrying any sort of weapon in that area where it has been imposed and people can be detained for violating it. The maximum punishment for such an act is three years.
  2. According to the order under this section, there shall be no movement of public and all educational institutions shall also remain closed and there will be a complete bar on holding any kind of public meetings or rallies during the period of operation of this order.
  3. Section 144 also empowers the authorities to block the internet access.

Duration of Section 144 order:

No order under Section 144 shall remain in force for more than two months but the state government can extent the validity for two months and maximum up to six months. It can be withdrawn at any point of time if situation becomes normal.

As per the Section, the order can be passed only “if such Magistrate considers”, that the direction is likely to prevent:

  1. obstruction, annoyance or injury to any person lawfully employed.
  2. danger to human life, health or safety.
  3. disturbance of the public tranquility, or a riot or affray.

Value addition for Mains:

Test of Proportionality and the Supreme Court guidelines:

The orders under this provision will lead to the infringement of fundamental rights to freedom of speech and expression, assembly and movement guaranteed under Articles 19(1)(a),(b) and (c) of the Constitution. Hence, the orders under Section 144 have to meet the test of “reasonable restrictions” as per Article 19.

To ascertain whether a restriction on liberties guaranteed under Article 19 is reasonable or not, the Supreme Court has developed the “test of proportionality”.

In the Constitution Bench decision in Modern Dental College case (2016), the SC held that a law imposing restrictions will be treated as proportional if :

  1. It is meant to achieve a proper purpose, and
  2. If the measures taken to achieve such a purpose are rationally connected to the purpose, and
  3. If such measures are necessary.

Four-fold test to determine proportionality:

In Puttaswamy case (2017), the SC laid down a four-fold test to determine proportionality:

  1. A measure restricting a right must have a legitimate goal (legitimate goal stage).
  2. It must be a suitable means of furthering this goal (suitability or rationale connection stage).
  3. There must not be any less restrictive but equally effective alternative (necessity stage).
  4. The measure must not have a disproportionate impact on the right holder (balancing stage).

So, the legality of the orders passed under Section 144 CrPC will be tested on the basis of these principles of ‘reasonableness’ and ‘proportionality’.

Concerns over its misuse:

Contradictory approach of Article 19 (1) (b) and (c) of the constitution and section 144 of CrPC is a “reflection of a colonial legacy and the unquestioning adoption of most of the provisions of the 1872 Code of Criminal Procedure by the contemporary Indian State”.

More often than not, the section has been used to curb even peaceful dissent.

What next?

  1. The government should make sure that there is no blanket imposition.
  2. Existing checks and balances and judicial oversight are insufficient. Therefore, a thorough review is necessary.
  3. Public order and right to peaceful dissent– both should be ensured.

Sources: the Hindu.