Why 2 Courts Stopped Police From Using A Colonial Law

20 Feb 2020 8 min read  Share

It was to be used in ‘urgent’ situations to maintain order. But police use 158-year-old Section 144—often illegally—to stifle free expression, as the Bombay and Karnataka high courts observed

Goa withdrew Section 144 ahead of the carnival which begins on 22 February/VIVEK MENEZES

New Delhi: A Supreme Court judge has called dissent the “safety valve” of democracy, even as police forces nationwide routinely deploy a 158-year-old law to—often illegally—stifle such avenues of dissent against a contentious new citizenship law and a forthcoming national citizenship register.

Justice Dhananjay Chandrachud called for protection to freedom of expression and protest “without fear of retribution” and said “the employment of state machinery to curb dissent instils fear and creates a chilling atmosphere on free speech which violates the rule of law and detracts from the constitutional vision of a pluralist society”. Justice Chandrachud's remarks on 15 February, 2020, came two days after the Karnataka High Court held restrictions under Section 144 of the Code of Criminal Procedure (CrPC) in 2019 by the Bengaluru police “illegal as it does not satisfy the test of judicial scrutiny demanded of such orders”.

Responding to a public interest litigation, the court ruled: "Unfortunately, in the present case, there is no indication of an independent mind by the District Magistrate while passing the order… Section 144 order does not stand the test laid down by the Supreme Court in the case of Anuradha Bhasin and Ramlila Maidan [more on this below].” On the same day, the Bombay High Court’s Aurangabad bench quashed another prohibitory order restraining CAA protests. The court questioned the intention behind the order and noted that its “real purpose” to silence the anti-CAA protesters. The court said that “there was no fairness and the order was not made honestly”.

Section 144, meant to be used only in “urgent” situations, is now routinely used to prevent protests.

The law was used to prolong prohibitory restrictions on movement, and public gatherings in Jammu and Kashmir for more than four months since August 2019. It continues even today in some parts of the state, and police in other states continue to use it not just against student and street protests but to curb all manner of public and other gatherings.

Section 144 was used in Jammu and Kashmir and Uttar Pradesh (UP) to suspend the Internet in 2019, prohibit cattle transport in Ayodhya, stop crowds gathering during “wildlife emergencies”, such as a leopard or elephant on the loose, stop illegal stone quarrying in Odisha and Meghalaya, allow public distribution of water in Maharashtra, stop protests at power and mining projects in Madhya Pradesh and Jharkhand, manage law and order during festivals and control noise during board exams.

Section 144 was also imposed to prevent sloganeering, singing and beating drums in Maharashtra, as the Bombay High Court noted on 13 February, 2020.

Apart from Jammu and Kashmir and UP, Internet shutdowns were reported from West Bengal, Madhya Pradesh, Punjab and Rajasthan, to deal with law-and-order situations. India reported the highest number of internet shutdowns in the world in 2016 and 2017, with an economic cost of Rs 950 crore ($8 billion) during 2019.

In an overwhelming number of instances reported since August 2019, the police have baton-charged, tear-gassed and fired on protesters, many of whom have been peaceful. The police have barricaded roads, forced closure of shops and intimidated pedestrians in attempts to stop peaceful protest.

What qualifies for state action under Section 144? Is the law being misused? How does it impinge on the fundamental rights to freedom of speech and expression?

Section 144: Overused, Misused

Section 144, the CrPC’s most significant and overused provision, is meant to be used in “urgent cases of nuisance or apprehended danger” and only when there is “sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable”.

This authorises an "executive magistrate"—an officer of the administration junior in rank to the district magistrate—in any state or territory to prohibit the assembly of four or more people within a specified area where violence or disturbance to law and order and public tranquility is anticipated.

The police or local administration can confine, arrest, dispersed by force and book criminal charges for rioting or unlawful assembly or other criminal charges under the Indian Penal Code. If found guilty by a court, punishment is determined under the penal provisions.

In emergencies, and “if the state government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray”, it can extend a Section 144 order from the stipulated two months initially to a period not exceeding six months.

Section 144 is preventive in nature and was meant to preserve “peace and tranquillity” in public spaces under “extraordinary”, “urgent” circumstances, various Supreme Court orders evaluating the legality of restrictions under the law have ruled over the years. “The entire basis of action under Section 144 is provided by the urgency of the situation,” the court ruled in the case of Gulam Abbas versus State of Uttar Pradesh, 1982. ...It is only in an extremely extraordinary situation, when other measures are bound to fail, that a total prohibition or suspension of their rights may be resorted to as a last measure,” the Supreme Court said.

Legal experts said the law couldn’t be used to suppress freedom of speech and expression.

“Provisions under the section clearly stipulate that prohibitory orders are exceptional in nature and can only be issued as a precautionary measure,” said Tathagat Harsh Vardhan, a Supreme Court lawyer. “Imposing restrictions on a citizen's fundamental right to assemble peacefully cannot be invoked as a tool to suppress the legitimate expression of opinion or grievance or exercise of any democratic rights and decision to impose 144 should be used reasonably, only as a measure to preserve law and order, as held by the Supreme Court."

Safeguards against its misuse include: requiring magistrates to hold an inquiry before exercising this power, issue prior notice and offer a hearing to those it is issued against, and setting out material facts for exercising this power. These include a right to appeal to a high court or Supreme Court; and magistrates can modify or rescind an order.

The law also says an individual detained for unlawful but peaceful assembly under the section must be released within 24 hours.

Used To Muzzle Independence Protests

Section 144 was created as part of the CrPC in 1861 to aid India's authoritarian, colonial administration.

Historians argue such lawmaking was a part of the hurried westernisation of Indian institutions for authoritarian and unequal legal administration in the late 19th century.

While dissecting the special privileges accorded to “European-born British subjects” in the CrPC, historian Elizabeth Kolsky in a 2005 paper noted that it was explicitly designed and amended over the course of the 19th century to sustain a structure of legal inequality.

“Codification brought to the surface internal tensions in liberalism and empire,” Kolsky wrote. “The paradox of attempting to create democratic legal institutions in the context of absolute authoritarianism manifested itself with striking clarity in the debates about the Code of Criminal Procedure.”

Section 144, which has had three revisions since 1861, has continued to serve the interests of governments in post-independence India. Many prohibitory orders under section 144 are issued not to curb public protest but to impose regulations upon individuals and businesses for a variety of reasons, as we said.

The broad sweep of emergencies listed under the section invariably translates into unbridled powers for executive officers, who decide what is an “emergency” or “exceptional circumstances”.

“Much of the orders under section 144, I believe, are also politically motivated,” said Vardhan.

Some legal experts justified police use of section 144. “It’s a preventive order, and that means you can’t allow anyone to create ruckus in the garb of protest and freedom of speech and expression," said Aditya Shankar, a Supreme Court lawyer allied with the government. "There are always two sides to a story. Because we are a democracy, dissent is the most cherished form of protest. But dissent shouldn’t be an excuse for disintegration."

'God’s Gift to Mankind'

The constitutional view of section 144 as a deterrent to free speech appears unambiguous.

“Speech is God’s gift to mankind,” the Supreme Court said in the Life Insurance Corporation of India & Ors versus Prof. Manubhai D. Shah case in 1992. The apex court’s early decisions clearly favoured freedom of expression.

In Acharya Jagdishwaranand Avadhuta, etc. versus Commissioner of Police, Calcutta, 1983, the court ruled that “repetitive orders”--as Gujarat has issued over about half a century, or Jammu and Kashmir over more than 80 years—under Section 144 would be an “abuse of power”.

In the Madhu Limaye vs Sub-Divisional Magistrate case, 1970, the Supreme court in 1970 ruled that power vested under the law was not an “ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny". In the Ramlila Maidan case, 2012, the Supreme court noted that the law is a preventive power to preserve public order and “the incident in this litigation is an example of a weird expression of the desire of a tyrannical mind to threaten peaceful life suddenly for no justification”.

More recently, Supreme Court deciding on a petition challenging police restrictions on the movement of people during the day in Jammu and Kashmir ruled on 10 January, 2020 that Section 144 could not be used to suppress “legitimate expressions of opinion or grievance or or exercise of any democratic rights”.

Ruling on internet shutdowns, the court said “the right to freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution” and that “an order suspending internet services indefinitely is impermissible”.

Two Key Questions

Section 144 has now become a barometer to the functioning of Indian democracy, with these questions up for discussion.

1) Can peaceful protest be called dissent?

Human rights scholars studying police action under Section 144 have argued that these violate democratic rights. Frequent use of the act to impose restrictions are in conflict with the fundamental right to freedom of speech and peaceful assembly under article 19 (1) of the Indian Constitution, some argue.

“This is a dangerous form of prior restraint that affects all the speech in the area within which a shutdown is ordered, and it comes with inadequate procedural safeguards that might narrow its application,” Chinmayi Arun and Nakul Nayak, researchers at The Berkman Klein Center for Internet & Society, said of Section 144 of the CrPC in preliminary findings on online hate speech and the governing laws in India.

The arbitrary arrest and detention of protesters also violates the right to personal liberty, as stipulated in Article 21. The frequent use of the section may have shrunk democratic spaces, even as the changing politics of the country seeks to redefine long held beliefs of democracy.

The recurrent conflict has been the inadequacy of the law in specifying what constitutes peaceful protest and dissent amounting to sedition.

“I am not saying that it’s a perfect law but there is a very thin line between its use and misuse,” said Shankar. “Orders under section 144 need to be examined on a case to case basis because the nature of protest can differ from place to place. There are instances when quiet protests have happened and, often, people have become aggressive.”

2. Is frequent police action under Section 144 undermining India's constitution?

Wide-ranging curbs on freedom of expression and assembly under Section 144 reflect the executive’s dominant role in maintaining public order, interfering with constitutional and human rights of Indian citizens, legal experts told Article-14.com.

The longer these curbs stay out of judicial review, the deeper they will undermine democratic values enshrined in the constitution.

Shankar said the operation of section 144 may be "a fit case" for the Supreme Court to decide on a set of guidelines for how it is used by the police.

“I think what needs to happen is that a bench of the Supreme Court should hear a bunch of petitions on the provision to come up with a set of guidelines explaining what can be done in specific situations,” said Shankar. "Sometimes, the most peaceful protest can also become ground for the CrPC provision and the most violent protest may not invite action.”

(Pallavi Singh is a journalist and researcher in international political economy.)