Section 144 CrPC: Maintaining Public Order or Curtailing Fundamental Rights?

Author: Jatin Saini, Campus Law Centre, Faculty of Law, Delhi University

Introduction

Section 144 of the Code of Criminal Procedure (CrPC) is a contentious provision in Indian law that grants executive magistrates the power to issue orders prohibiting the assembly of individuals and other actions to prevent a disturbance of public peace. Though it aims to safeguard public order, its application has often raised serious concerns regarding its misuse, infringing on citizens’ fundamental rights, and circumventing due process. This analysis critically examines Section 144, delving into its practical implications, judicial interpretations, and recent misuse, along with possible amendments to ensure a balance between maintaining public order and protecting individual rights.

Purpose of Section 144 CrPC
Section 144 is a preventive measure, primarily aimed at maintaining public order in situations where immediate action is necessary. The provision allows authorities to issue orders to prevent unlawful assemblies, causing disruption or posing a threat to public safety. The objective is to protect life, property, and public peace without the need for prior judicial intervention.

Scope and Powers Under Section 144
The Executive Magistrate, under this section, has the authority to:
Restrict the assembly of five or more people.
Prohibit carrying weapons, playing loud music, or engaging in activities that may cause public unrest.

Prevent any activity that may disturb public order, health, or morality.
These measures are aimed at preventing imminent threats, including riots, violence, and disturbances, especially during sensitive times such as elections, protests, or religious gatherings.

Text of Section 144

Section 144 empowers a magistrate to issue prohibitory orders if there is an urgent need to prevent potential threats to public peace, safety, or health. The provision’s language, including terms like “disturbance of public tranquillity” or “obstruction,” has been critiqued for being overly broad, giving magistrates wide discretion. To avoid misuse, orders under this section must be based on specific and well-documented grounds, ensuring they are necessary and proportionate to the perceived threat.

Case Laws

Babulal Parate v. State of Maharashtra (1961): The Supreme Court upheld the constitutional validity of Section 144, stating that it is a preventive tool that does not inherently violate fundamental rights. However, the Court emphasized that it should only be invoked in exceptional circumstances.

Madhu Limaye v. Sub-Divisional Magistrate (1970): This case clarified that Section 144 cannot replace ordinary legal mechanisms and must be used judiciously, strictly for preventing emergencies or threats.

Anuradha Bhasin v. Union of India (2020): The Court introduced the proportionality test, underscoring that restrictions under Section 144 should be the least intrusive means to address a legitimate concern. Blanket orders, such as widespread internet shutdowns, were held to be disproportionate unless justified by compelling evidence.

Ramlila Maidan Incident v. Home Secretary, Union of India (2012): The arbitrary use of Section 144 during peaceful protests was condemned, and the Court reaffirmed that it should only be applied when there is a clear and imminent danger.

Analysis of Section 144

1. Preventive Nature of Section 144
Section 144 is preventive rather than punitive. The intention behind its enactment is to pre-empt harm rather than to penalize wrongdoing. This preventive nature, while necessary in emergencies, often raises concerns about arbitrary and excessive use, particularly against political demonstrations or dissent.

2. Balancing the Doctrine of Proportionality
The proportionality test, as established in the Anuradha Bhasin judgment, mandates that restrictions must not only be reasonable but also the least restrictive means to achieve the intended purpose. Orders under Section 144, if unreasonably broad, fail this test and infringe upon fundamental rights guaranteed under Articles 19 and 21 of the Constitution. For instance, blanket internet shutdowns imposed under the guise of Section 144 were deemed disproportionate in Anuradha Bhasin.

3. Ex-Parte Orders and Lack of Safeguards
The issuance of ex-parte orders—without prior notice to affected parties—raises questions about procedural fairness. While such orders are justified in emergencies, the absence of a mechanism for immediate judicial review undermines natural justice. Magistrates must ensure that the material facts, as mandated by Section 144(1), are sufficiently specific to justify the restriction.

4. Judicial Oversight and the Doctrine of Necessity
Courts have consistently underscored the necessity of judicial oversight in the exercise of powers under Section 144. The doctrine of necessity emphasizes that restrictions must be applied only when no alternative remedy exists, ensuring minimal interference with rights. The Ramlila Maidan judgment highlighted the importance of proportionality and the need for judicial scrutiny in cases involving peaceful assemblies.

Potential for Misuse and Overreach
While Section 144 is a tool meant to preserve public order, it can easily be misused, often for political or social control. The vagueness of the language and the wide discretion allowed to magistrates have contributed to its frequent abuse. Below are key concerns regarding its misuse:

a) Arbitrary Imposition of Restrictions
The power granted to magistrates is sometimes used in an arbitrary and sweeping manner. There is no requirement for a magistrate to demonstrate a clear and present danger to public order, leading to overuse of the provision in situations where other, less drastic measures could be taken. For instance, Section 144 has been invoked even during routine events or protests where there was no immediate threat.
Example: During the 2019-2020 Delhi Anti-CAA Protests, Section 144 was invoked extensively in various parts of Delhi. The police issued prohibitory orders against assembly, sometimes even before protests began, curbing citizens’ right to express dissent. This often led to clashes between citizens and law enforcement.


b) Suppression of Free Speech and Right to Assembly

Section 144 has been used to suppress the right to protest or express dissent, especially in politically sensitive situations. The Constitution of India guarantees the fundamental right to assemble peacefully and to express views, which is often curtailed through blanket imposition of Section 144.


Example: In Kashmir, after the revocation of Article 370 in 2019, the government imposed Section 144 in Kashmir for several months. The region was placed under severe restrictions on movement, assembly, and speech, effectively stifling political expression and public protests.
c) Discretionary Power with Limited Oversight
Section 144 grants excessive discretionary power to the executive without sufficient judicial oversight. While the law does require orders to be reviewed, the reality is that it is often applied hastily, and there is little time for meaningful review before the orders are enforced. This lack of transparency and accountability has led to the abuse of the provision.


Example: COVID-19 Lockdowns: During the lockdowns, governments issued orders under Section 144, limiting movement and assembly. While necessary for public health reasons, the broad application of these orders sometimes led to violations of personal freedoms, including arbitrary detentions and crackdowns on migrant labour protests, where peaceful gatherings were prohibited despite no imminent threat.

The Balance of Public Order and Fundamental Rights
The right to freedom of assembly and expression is protected under Article 19(1)(a) and (b) of the Indian Constitution. However, these rights are subject to reasonable restrictions under Article 19(3), which permits limitations on fundamental rights in the interest of sovereignty, integrity, public order, and morality.
The fact of the matter is whether the restrictions imposed under Section 144 are “reasonable” and proportionate to the threat posed. The Supreme Court has consistently held that restrictions under Article 19(2) should not be imposed arbitrarily and must be based on clear and present danger.

Judicial Oversight
The judicial oversight over Section 144 is weak and often ineffective. While Section 144 orders can be challenged in court, the immediate impact of these orders—such as curfew impositions—cannot be undone quickly, leading to a situation where citizens’ rights are infringed upon for an extended period before judicial intervention.
Example: In 2017, during the Jat Reservation protests in Haryana, the authorities imposed Section 144 in several areas, including highways. These orders severely limited movement and led to widespread inconvenience for the general public. The orders were challenged in court, but by the time judicial intervention occurred, the damage had already been done, and people had been deprived of their mobility for an extended period.

Potential Amendments to Ensure Protection of Rights

In light of the criticisms and misuse of Section 144, several amendments or changes in its application could ensure that it serves its intended purpose of maintaining public order without unduly infringing on individual rights:


a) Clearer Guidelines for Invocation
The law should specify clear criteria for the invocation of Section 144. Magistrates should be required to demonstrate a concrete threat to public order and outline the reasons for issuing such an order. There should also be a clear time limit on the orders, with renewals subject to judicial review.


b) Judicial Pre-Approval
In situations where the restriction on fundamental rights is likely to be significant, the law should require a magistrate to obtain judicial pre-approval, or at the very least, ensure that there is expedited judicial review of the orders.


c) Limited Scope and Proportionality
Any order under Section 144 should be proportionate to the threat posed. Orders should target specific activities or individuals involved in unlawful acts, rather than imposing blanket restrictions on large groups or entire regions.


d) Enhanced Transparency and Accountability
There should be a requirement for the authorities to publicly justify the imposition of Section 144 and ensure that these orders are not used as tools for political repression. Regular monitoring by independent bodies could also be introduced to prevent misuse.


e) Greater Public Awareness
Citizens should be made aware of their rights under Section 144 and the procedure for challenging such orders. Legal literacy campaigns could be helpful in empowering individuals to question unlawful impositions.

Conclusion

Section 144 CrPC is a powerful tool that can serve the legitimate purpose of preventing disturbances of public order. However, its current form is prone to misuse, often leading to the erosion of fundamental rights, especially the right to assembly, expression, and movement. For Section 144 to truly fulfil its purpose without violating constitutional freedoms, substantial reforms are necessary. These reforms should focus on clarifying the grounds for its imposition, ensuring proportionality, enhancing judicial oversight, and increasing transparency. This would help strike a balance between public order and the protection of citizens’ fundamental rights, ensuring that the provision does not become a tool for oppression but remains a genuine safeguard for public peace.

FAQS

What is the primary purpose of Section 144 CrPC?
Section 144 is designed to prevent imminent threats to public peace, safety, or health by imposing temporary restrictions.


Can Section 144 be challenged in court?
Yes, affected parties can challenge its imposition through writ petitions under Articles 32 or 226 of the Constitution. Courts often examine whether the order adheres to the principles of proportionality and necessity.


Does Section 144 apply only to specific individuals?
No, it can be applied to individuals, groups, or even entire areas depending on the perceived threat. The discretion lies with the magistrate to assess the situation.


How long can an order under Section 144 last?
An order can remain in force for a maximum of two months. However, it can be extended up to six months by the state government if the situation demands.


Is Section 144 a violation of fundamental rights?
Not inherently, but its misuse or disproportionate application can infringe upon rights like freedom of speech, movement, and assembly. Courts have emphasized that such restrictions must be reasonable and proportionate.


What safeguards exist against misuse of Section 144?
Judicial oversight, adherence to procedural requirements, and the application of the proportionality test are key safeguards. Affected parties can seek redress through writ petitions or appeals in higher courts.

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