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Section 144 Of Crpc Curtails Right To Freedom?

"Freedom is like a window, through which pours the sunlight of the human spirit and human dignity". - Herbert Hoover

For a human being, freedom is one of the most important rights, he possesses. Freedom comes under the fundamental human rights, which is also granted by the Constitution of India, under the part III, which talks about the fundamental right to freedom under article 19[i]. The right to freedom in India is given as a fundamental right which means it cannot be taken or restricted in any circumstances by the state or by any other person, and if, it is restricted by any order of the state or any person, then the judiciary especially the supreme court takes the initiative to restore the same, after a petition for the violation of fundamental right is filed by any aggrieved person. In a general sense, freedom means the ability to do or say what a person wants freely, without any restriction or disturbance.

But, under section 144[ii] of CrPC which confers some extra-ordinary powers on an executive magistrate, to impose a restriction on public gatherings, processions or to prevent any apprehended action by a group of people which can result in causing harm to any public property or any other thing. Basically, the executive magistrate under this section tries to apprehend the possible harm that can be caused by some group or groups of people, and take certain actions to prevent the same. In this course of prevention of that harmful act, the order by any magistrate also affects the freedom of people provided under the constitution of India, in one or more aspects.

The clash between the article 19 of the Indian constitution and Section 144, which comes under part V of chapter X, subchapter C of the CrPC, 1973. There is a very controversial debate coming over a period of time, on the matter that, of whether section 144 is constitutional and does not violate fundamental rights or whether the application of this section is necessary for maintaining peace in the society and maintaining public tranquility.

In this project, we have tried to analyze the matter that how section 144 curtails or restricts the right to freedom of people, with a view of taking an overview of the critique which says that it does not prevent people from their freedom, and why it is important to use this provision in certain situations, we have also tried to analyze the section 144 of CrPC below.

What is section 144 of the code of criminal procedure?
The Code of Criminal Procedure, 1973 is the procedural part of Indian criminal law, which lays down the guidelines for the functionaries of the criminal law, and certain powers of these functionaries. In this queue, such a provision is section 144 of CrPC.

The section provides for the extraordinary powers of any executive magistrate to pass an order in the situation of urgent cases of a nuisance of apprehended danger, which includes:
  1. In the first sub-section of this section, it provides that, if in the opinion of any district, a sub-divisional magistrate, specially empowered in this regard by the state government, can order any certain person to abstain from doing an act, which is in the opinion of a such magistrate is likely to cause harm to any person lawfully employed, or human life or society.
  2. The sub-section two of the section provides that these types of orders are in a situation of ultimate urgency, and thus can be passed Ex-parte.
  3. Any order under this section may be directed to any person, or any persons living in a particular area as well as to the general public for preventing their visit to such area.
  4. Sub-section 4 of the section provides for the time frame, for how much time such an order can remain in force. The maximum time for which such an order can remain in force is two months from the date of passing such an order, but it also provides that if the state government believes that there is a need to extend such an order, it can do so by issuing a notification, but that period also shall not exceed six months.
  5. Sub-section 5 of this section provides for the rescission of such an order under section 144 of CrPC, by any magistrate. It says that a magistrate can rescind such an order passed under this section, on his own application or any application made by any aggrieved person. It also provides that such an order can also be rescinded by any magistrate who is subordinate to the magistrate who passed such order as well as his predecessor in the office.
  6. Clause 6 talks about the power of the state government to alter any order passed by any magistrate under section 144. This power of the state government can be derived from sub-section 4 of section 144 itself.
  7. The last sub-section is primarily directive in nature. It says, that when any application is received by any aggrieved person under sub-section 5 & 6, such person or his representative should be given an early opportunity for hearing by the magistrate or the state government, and after considering the application, the magistrate or the state government believes that the application is liable for being rejected, the any of those authorities as the case may be, can do so; and shall record the reasons for the rejection as well.

Many people believe that a restriction imposed under section 144 of CrPC and curfew are the same, and they are often used interchangeably, but the statement and belief are not true. There is a slight difference between these two provisions, in an order passed under section 144 of CrPC, there is a restriction on the gathering of four or more people in a specific area, and the traffic in such area is also restricted in toto by the government. But, in the case of a curfew, people are expected and instructed to stay indoors and not come outside from their houses. Thus, this is the major point of difference between a curfew and a restriction imposed under section 144 of CrPC.

As we have discussed above, the Code of criminal procedure provides for the extraordinary power to an executive magistrate to issue an ex parte order in a situation of urgency to prevent any activity to be commissioned or happening, which has the consequence of causing a greater degree of harm to any person, who is employed lawfully, public property or society in large[iii].

This section provides for the order by an executive magistrate, which can remain in force for 2 months and be extended to six months by the order of the state government, it also provides that such order can also be rescinded by the magistrate or any person aggrieved, through an application to the magistrate or the state government, and such application should first be considered and if the authorities think it to be proper and reasonable, then can act according to the request; and when authorities are not satisfied, with the ground for rescission in the application, the same can be rejected by recording the reasons.

However, in the case of "MD. Ghulam Abbas & another V. MD. Ibrahim & others, (1978)[iv]", the apex court discussing the provisions under section 144 of CrPC in a revision petition, also stated that the order under this section may sometimes be issued on a person who is doing a certain legal act on his own property, but although such act is constituting a danger to human life and public tranquility. For example, if any person shouts provocative slogans from the top of his house, then in such a situation the order will be reasonable to be issued.

Such order by any executive magistrate directing a particular person, for restricting himself or abstaining from doing a certain act; or restrict the gathering of four or more people in a specific area, where the traffic is also got restricted by the government in that specified area. Some features under this kind of order are no movement of the public, no public meetings, closure of all educational institutions till the order got withdrawn, also in some cases, blocking of the internet, etc.

However, this section provides greater power to the executive magistrates, but it does not mean that they can misuse them, or can act with this section being under any political pressure. The three judges' bench of the supreme court of India said in the case of "Gulam Abbas & another V. State of Uttar Pradesh (1982)[v]" the power under section 144 should be exercised by the magistrate for the defense of established rights of any aggrieved, as in the case the petitioner was; and the action of the magistrate should be directed towards the wrong-doer and not wronged.

The magistrate should also if it thinks to be important should mention the reason for imposing such restriction, and the reason must justify the necessity of such order, the supreme court was of the view in the case of, "Commissioner of Police & others V. Acharya Jagdishwarananda Avadhuta & others (2004)[vi]".

1st View: Section 144 Curtails The Right to Freedom Of People;
As we have discussed earlier, Section 144 of Cr. PC grants the magistrate the power to forbid the gathering of four or more persons in a specific location. This section is applied as a solution to problems that will bring disturbance to the public or any injury to human life. But this section has come under criticism as some conditions of the section are seen to be unjustified and is abused.
An order under section 144 impacts the guarantee of freedom of speech and expression of the citizen as well as the freedom of peaceful assembly. The question arises whether section 144 takes away these aforementioned rights which are set in the Indian Constitution.

Every citizen has their fundamental rights and as such, they have the right to assemble peacefully but how can these citizens enforce this right if they are forbidden to come together as per section 144? How is it that this section can give the magistrate the right to take away the right of the citizen? By doing so, it is violating the fundamental rights of the concerned persons. It is to be taken into consideration that section 144 is meant with the purpose of avoiding certain situations that would bring disturbance to the general public, but what constitutes a disturbance?

In the case of a peaceful assembly, they have the power to forbid such a gathering despite there being no threat to the public. Such power will make the people fearful of gathering even though they have every right to do so. The term 'in the interest of the public' is too broad and it gives too much power to the magistrate. Later it concluded that it has to be clear that there is a disturbance and not just mere apprehension, the exception being that sufficient materials that show that it is in the interest of the public[vii], will allow for the imposition of section 144.

In light of these issues, the Supreme Court laid down a law to determine whether such restrictions imposed by section 144 are violative of the rights guaranteed in Article 19 of the Indian Constitution or whether the restriction is reasonable or not. The court also held that each order under the section must be within the lines of reasonable restriction of fundamental rights. As a result, the apex court introduced the test of proportionality. Through a landmark case[viii], the restrictions will be treated as proportional if it fulfills the following conditions:
  1. It has a proper purpose to achieve
  2. If the steps taken to achieve the purpose are rationally connected to the purpose
  3. If such steps taken are a necessity.
However, in another landmark case[ix], the four conditions were set to determine the level of proportionality that would be valid. The four conditions were the following;
  1. A restriction on a right must be justified by a legitimate objective.
  2. The approach taken to achieve this objective should be appropriate and effective.
  3. There should be no alternative that is less restrictive but equally effective.
  4. Additionally, the restriction should not have a disproportionate impact on the person's rights.
As per the set of conditions set, the imposition of section 144 regarding the right of freedom will be tested on the principles of reasonableness and proportionately. Although this test is used, it does not necessarily mean that it will be always correct in its judgment. The authorities should make sure there are no general restrictions. The checks and balances in place as well as judicial scrutiny are insufficient. Both public order and the freedom to peaceful protest must be protected.

Although it is sometimes not the best medium for exercising the right to free speech and expression, the Internet is widely acknowledged as a catalyst in the process of giving, receiving, and transferring information. Unquestionably essential to a democratic government, this freedom also makes other socioeconomic and cultural rights possible. The applicable portions of section 144 can be broken down into three main segments based on a simple examination of facts.
  1. The District Magistrate, a subdistrict magistrate, or any other Executive magistrate with primary State Government authorization in this regard has the jurisdiction to revoke orders.
  2. The justifications for using Section 144 include:
    • sufficient justification
    • the need for prompt prevention
    • the need to avoid impediments to anybody who is lawfully engaged
    • a threat to human lifestyles, fitness, or protection
    • a disturbance of the peace
    • dissent or violence
  3. The intended recipient: By establishing adequate grounds and through a written order, a judge may instruct any person to refrain from doing something specific or to take action to protect assets that are in their possession.
The suspension of mobile internet services triggered outrage among persons involved and members of civil society, and the activities done under section 144 were contested. Localized threats were intended to be avoided by Section 144. Its applications on a local and state level amount to a complete suspension of fundamental rights. Section 144 of the CrPC has its roots from a long time ago and was subsequently re-enacted in the 1973 CrPC.

In essence, this provision empowers executive magistrates, who are typical representatives of the police, to issue prohibitory orders that restrict people from assembling at specific locations. Such orders often reference unlawful assemblies under the Indian Penal Code, which typically prohibit gatherings of more than four individuals in a designated area. The rationale behind Section 144 is to prevent breaches of public order or the incitement of violence by preventing large groups of people from gathering.

As such, Section 144, while optional, is a crucial component of the package of actions that the executive frame of every district uses to save you and manage urgent situations[x]. Several lawsuits challenging the segment's constitutionality were filed, while an equal number of rulings upholding it was also submitted.

2nd View: Section 144 Does Not Curtail The Right to Freedom;
As we know, every law is for maintaining social order and public tranquility in the country, in this queue, the power to an executive magistrate under section 144 of the Code of criminal procedure, has an important position, because it empowers the executive magistrate to issue any immediate ex parte order for restricting certain people who are suspected to cause harm to the society or specific area, where, there is an apprehension of danger to human life and society in life; so in order to safeguard the interest of the society it is necessary for the magistrate to pass such an order.

Secondly, if such an order is not got passed by a magistrate because of the apprehended danger, society may suffer much more harm, than it got affected by the order. Any order passed by any executive magistrate will remain in force till the situation gets normalized in the specified area or locality, and then the restriction should be withdrawn; this is the main object of section 144; thus, we cannot say that it affects the right to freedom of people, in its application in its general rule.

The main dispute arises when any magistrate under any political pressure or otherwise abuses his powers under section 144, which ultimately results in a violation of fundamental rights.

The supreme court in many judgments had stated that section 144 should only be used in situations where a danger to human life, health, or safety has been already apprehended, and the danger apprehended should have the consequences of disturbing the peace of the society. For example, in reference to the Ramlila Maidan Incident[xi], the supreme court said that the action by the police and the order both were unconstitutional.

The court also said that there should be reasonability in the order passed under section 144, and in the current case, where the reason behind the passing of such an order was only the expected commencing of an indefinite hunger strike by people who are led by Baba Ramdev, but the court said that there was no immediate danger to public peace or health, therefore in such a case, it can be said that there was a violation of fundamental right, but the same was due to abuse of powers under section 144 and should not be seen as a normal circumstance or use of power under such section as per the general rule.

As we have discussed above, the main object of section 144 is to protect and safeguard the human life, and health or public property from any apprehended danger, which may ultimately cause harm to them, in those kinds of situations an executive magistrate can exercise its powers under this section. As per the set of conditions set, the imposition of section 144 regarding the right of freedom will be tested on the principles of reasonableness and proportionately. Although this test is used, it does not necessarily mean that it will be always correct in its judgment. The authorities should make sure there are no general restrictions.

In passing such an order, and imposing such restriction over a place, the administration should always show the reason which is such that can justify the necessity of such prohibitory order under section 144. The apprehended danger for preventing which, such an order has been passed, has an immediate consequence of harming the affairs of general people, and public tranquility; further, it is also clear from the various pronouncements of the Supreme court that the prohibitory order may not be passed and imposed, when there is a peaceful protest by civilians.

But, also in some cases, where, the protest is peaceful and then also produces discomfort to the other civilians or residents of such place, the supreme court held in the case, "Mazdoor Kisan Shakti Sangthan V. Union of India & others (2018)[xii]", there should be a balance of interest between the protestors and residents, and the police should issue guidelines for that peaceful protest, in respect of the things that should not be done, in order to maintain and safeguard the rights of residents, and on the other hand, also allowing the protestor to hold and continue their peaceful protest, which is their fundamental right under article 19 of the Indian constitution.

Further, coming on the point of whether section 144 curtails the right to freedom or not, we can infer from the above discussion that, section 144 not curtails the right to freedom, when applied with its general rules and seriousness; but it affects the right of people adversely only when used by an executive magistrate under any political pressure, thus we cannot see this section as a violation of fundamental rights, but there should be proper care for using it.

End Notes:
  1. Article 21, The Constitution of India 1950.
  2. Section – 144, The Code of Criminal Procedure, 1973.
  3. RV Kelkar, R.V Kelkar's Lectures on Criminal Procedure (6th edn, Eastern Book Company).
  4. MD Ghulam Abbas & another V MD Ibrahim & others (1978) 1 SCC 226 (Supreme Court).
  5. Gulam Abbas & another V State of Uttar Pradesh (1982) 1 SCC 71 (Supreme Court).
  6. Commissioner of Police & others V Acharya Jagdishwarananda Avadhuta & others (2004) 12 SCC 770 (Supreme Court).
  7. Babulal Parate V. State of Maharashtra, 1961 AIR SC 1884 (Supreme Court).
  8. Modern Dental College & Research Centre & Ors. V. State of Madhya Pradesh & Ors, 2012 AIR SC 3899.
  9. Justice K.S Puttaswamy v Union of India, (2017) 10 SCC 1 [Supreme Court].
  10. RV Kelkar, R.V Kelkar's Lectures on Criminal Procedure (6th edn, Eastern Book Company).
  11. Ramlila Maidan Incident, In Re (2012) 5 SCC 1 (Supreme Court).
  12. Mazdoor Kisan Shakti Sangthan V Union of India & others (2018) 17 SCC 324 (Supreme court).

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