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Critical Analysis Of Right Of Movement And To Form Association With Special Reference To Sec-144 Of Crpc

Constitution of India has provided six fundamental rights for the people of India. One of the six fundamental rights is Right to freedom (Art-19 to Art-22). Art-19(1)(c) and Art-19(1)(d) talks about the protection of rights given to citizen in respect of freedom to form associations and to move freely throughout the territory of India respectively. Since Fundamental Rights are not absolute in nature, the rights mentioned have some restrictions in order to maintain the democratic fabric of the country. This research paper will critically analyse the usage of rights to form associations and movements and it's limitations imposed by government either by constitution itself or by Sec-144 of CrPC.

Research Questions
  • What is extent of freedom to form associations and movements?
  • What is the extent of using Sec-144 in curbing the movements and associations?
Objectives of the Study
  • To find out the extent of freedom to form associations and movements as provided by art-19.
  • To find out the limitations which imposes restrictions to use these rights.
  • To find out the democratic usage of Sec-144 of CrPC.
  • To find out whether the restrictions to these freedoms are necessary in today's era and if yes, what is the extent of such restrictions.
Significance of the Study
  • To get to know about the extent of enjoyment of rights to form associations and movements.
  • To understand the usage of these rights by weighing social interests against individual interests.
  • To know about the extent of usage of Sec-144 of CrPC.
Scope of Study This research is restricted to rights given by the constitution of India to form associations and movements and the limitations imposed by constitution itself and Sec-144 of CrPC. Research Design The following study is done in an analytical and descriptive way, so as to provide clarity with each topic mentioned and discussed. Sources of Data The study is completed with the help of secondary sources. The collection of data is from published newspapers, relevant articles, case laws, internet sources and secondary sources is referred too. Freedom Of Movement And Association
A Man is a social animal. He cannot live in isolation. He needs to keep contact with people in order to develop himself. Necessity compels man to move from one place to another and to form associations. Having this thought, constitution makers inserted Art-19 in the constitution of India which talks about the protection given to some freedoms enjoyed by Indian citizens. One of these freedoms is the freedom of movement throughout the territory of India (Art-19(1)(d)) and the freedom to form associations (Art-19(1)(c)).

However, these rights are not absolute in nature are subject to some reasonable restrictions as provided by the constitution itself as given in Art-19(4) and Art-19(5) respectively.

Grounds on which such freedoms can be restricted:
  1. In interest of the sovereignty and integrity of India:
    To shield the sovereign fabric of the country, some restrictions have been imposed on such freedom. If the right to form associations and movements shakes the unity of the country, such freedom will be curbed.
  2. Public order:
    In order to maintain peace and public tranquility, restrictions can be imposed on such freedom.
  3. Morality:
    If such freedom is likely to affect the moral values, then it will be curtailed.
  4. In interest of general public or for protection of interests of any Scheduled tribe:
    Not only Art-19 talks about the freedom of movement but it is also covered under Art-21 as the interpretation of personal liberty of a person. Right to freedom of movement has been evolved through various case laws.

Case- A.K. Gopalan V. State of Madras (1950)[1]
In this case, the petitioner was put in detention under Preventive Detention Act, 1950. The petitioner challenged the validity of the act on the ground that it was violative of right to freedom of movement (Art-19(1)(d)) which is very essence of personal liberty guaranteed by Art-21 of the constitution.

The court held that context of both the articles are different. Art-19 talks about the freedom of those citizens who are free and Art-21 talks about the personal liberty and it is in context when people are deprived of freedom. Therefore, personal liberty is covered only by Art-21 and not Art-19(1)(d).

Case- Kharak Singh V. State Of UP and others (1962)[2]
In this case the court held that unlawful surveillance and an unauthorised intrusion by police into a person's home is violative of right to freedom of movement.

Case- Govind V. State of MP[3]
This case took the view of AK Gopalan case. Constitutional validity of MP police act was approved in this case. The act authorised the domiciliary visits by police.

Case- Maneka Gandhi V. Union of India[4]
Supreme Court re-interpreted Art-21 and overruled AK gopalan judgement.Court observed that AK Gopalan cas could not play any role in providing any protection against harsh law depriving personal liberty. The court held that if any law is trying to curtail personal liberty, then it has to be tested under Art-14, Art-19 and Art-21 of constitution of India.

Usage Of Sec-144 Of Crpc And Its Limitations
Sec-144 of CrPC empowers Executive magistrate to take measures in order curb the urgent cases of nuisance or apprehended danger. The urgency to pass the order under this section is at the discretion of executive magistrate. The magistrate while passing an order under this section has to balance the public interest with that of individual interest.

Under this section, magistrate orders a person to abstain from doing an act which is likely to cause injury, annoyance, fear or danger to public and to prevent the disturbance of public tranquility. Order can be passed against a particular person or against group or persons. The validity of order under this section is 2 months which can be extended by 6 months by the orders of State government if it feels that it is imperative to extend the duration of order to prevent any danger to human life or property.

Under this order, Magistrate is empowered to prohibit the gathering of 5 or more than 5 people at a place. Such an assembly has the potential to disturb the public peace and if it is an unlawful assembly then it might commit an offence which has to be prevented.

Unlawful assembly, as defined in Sec-141 of IPC, is an assembly of 5 or more persons with the common object of:
  1. Preventing the lawful exercise of power by public servant by use of force.
  2. Resisting the execution of law.
  3. Committing mischief or criminal trespass.
  4. Taking the unlawful possession of a property.
  5. Compelling someone to do or not to do something against the law.
Magistrate is empowered under Sec-129 of CrPC to disperse the assembly by use of civil force. If the situation goes out control, magistrate has the power to call the armed forces to control and disperse the assembly by use of force under sec-130.

Sec-144 is basically a preventive measure. Imposition of Sec-144 ensures that an assembly of 5 or more persons does not form when there's a threat to public tranquility. Though this Section is against the right to freedom of association and movement as given in constitution of India, but it is made to secure the objectives as given under the reasonable restrictions of such rights.

Since this section gives a wide range of power to executive magistrate, it has the potential to be used for unlawful means and that's the reason why this section has attracted so many writ petitions till now. Many a times government has used Executive magistrates as a puppet to control the situation according to their way by imposing Sec-144.

Judicial Pronouncements
  1. Madhu Limaye V. SDM, Monghyr[5]: In this case, the constitutional validity of Sec-144 was challenged in Supreme Court. The court affirmed the constitutional validity of this section since it is a preventive measures against imminent nuisance and danger to public peace. The act by the magistrate under this section is within the purview of judicial review so the court found no reason to struck down this section.
  2. M. Das V. DC Das[6]: Supreme Court gave its stamp over the constitutional validity of this section once again and held that the object behind this section is the maintenance of public peace and tranquility. Court also ruled that the power of SDM under this section is same as the power of other executive magistrates.
  3. Ummulkulus V. EM, UT of Lakshadweep[7]: In this case, it was held that Executive magistrates enjoy wide range of powers under this section so as to prevent the situations as stated in the section. As soon as the magistrate is satisfied that there exists a situation of disturbance of public peace, he can pass the order under this section and such act is legally valid. In case of Abdool V. lucky narain mundul, the court held the work of magistrate does not finish only by imposing Sec-144, but he has to enquire about the reasons that led to disturbance of public peace.
  4. Ram Manohar Lohia V. State of UP[8]: Allahabad high court held in this case that the powers of magistrate under this section is to be used in accordance with the freedom of rights given in Art-19 of the constitution. He can't infringe the rights given under Art-19 of the constitution without any just cause. Powers under Sec-144 are not absolute in nature and hence magistrate has to apply his judicial mind before passing the orders under this section.
  5. Acharya Jagdishwaranad Avadhuta V. Commissioner of police, calcutta[9]: In this case, apex court held that the orders passed under this section are not permanent in nature. Thus, continuous repromulgation of orders under this section is not in accordance with the constitution.
  6. Manzur Hasan V. Mohammad Zaman[10]: Bombay High court framed some principles that has to be followed before issuing the order under sec-144. There must be an imminent requirement to impose Sec-144. Magistrate has to use the principle of proportionality while balancing the social interests and individual interests.
  7. Re ramlila maidan case[11]: In ramlila maidan, Baba Ramdev and other people were performing hunger strike against the laundering of black money. In the middle of the night, police gave notice to him that his permission to do strike at the place has been revoked. At the middle of the night, thousands of police personnels entered the field and used force to disperse the people sleeping there. The government, in its defence raised the point in the court that Sec-144 was imposed and the police personnels performed their duty in order to maintain the public peace and tranquility.

The court held that the imposition of Sec-144 was legally valid but the act of police violated Art-19 and Art-21 of the people. Police personnels transgressed their rights in the name maintaining the public peace and tranquility. Police personnels have duty to maintain social order but they cannot exercise this duty by violating the fundamental rights of the people. The act of the police brutality in the name maintenance of public peace was criticized by the court.

  1. The very first point for which this section is criticized is giving discretionary powers to Executive magistrates to curb the freedom of movement of people and to form associations. Magistrate imposes curfew like situation by passing the order under this section. Many instances have been there which shows that Magistrates have irrationally imposed this section. This undermines the democratic value of the country.
  2. Political parties use executive magistrates as their puppets to impose this section in order to fulfill their political agendas. There has been many instances where the ruling party imposed this section just to prevent the opposition party from performing the rallies.
  3. This section is often criticized for violating Art-19 of the constitution. In the 21st century, this type of law is quite questionable since it jeopardizes the rights of the common people.
  4. This section is used as a tool by the government to curb the voices raised against in dissent of the policies or actions of the government. Internet blocking is common in curbing the voice of people at large at the name of protecting the public peace.

Suggestions And Conclusion:
  1. Right to freedom of movement is a fundamental right enshrined in the constitution. In a civil society, no right can be absolute in nature and hence there are some reasonable restrictions provided by the Constitution in the enjoyment of this right. The government imposes such restrictions by weighing the public interest on one hand and the individual interest at the other. It is the duty of the government to apply the principle of proportionality while curbing the fundamental right.
  2. Since the penal and procedural laws have the British origin, it reflects the strict measures which were used to curb the voices of the people at that point of time. However, creators of the laws had noble idea to use Preventive measures like Sec-144 only in the case of emergency. Sec-144 has itself given the right to the aggrieved person to file application against the arbitrary use of such power along with the filing of writs in case of violation of fundamental rights. It is the duty of the officials impose such measures in accordance with the rights given to the people in the constitution itself.
  3. There have been many instances where Sec-144 has been implemented to curb the voices of dissent, lawful strike etc. The section gives wide range of power to the officials and it would be wrong to assume that all officials would use such wide range of powers wisely. In order to limit down such arbitrary use of powers, government needs to limit down the power given to the officials under sec-144 of CrPC. Government should lay make mandatory that officials should give a valid reason before implementing such restrictive measures. Repromulgation of such order without and just and reasonable cause should attract disciplinary action or even removal of public official from his post.
  4. Judiciary has played a vital role while examining the validity of implementation of such preventive measures since it is the government itself which uses the public officials as puppets to curb the voices of people and restricts their movement.
  5. Public officials are there to serve the public at large. They are appointed to promote the welfare of people. So, even of they apply such measures in the case of emergency, Kharak Singh V. State Of UP and others, they have to use their judicial mind and apply the principle of proportionality so as to maintain the true spirit of democracy.

  1. 1950 AIR 27, 1950 SCR 88
  2. 1963 AIR 1295, 1964 SCR (1) 332
  3. 1975 AIR 1378, 1975 SCR (3) 946
  4. 1978 AIR 597, 1978 SCR (2) 621
  5. 1971 AIR 2486, 1971 SCR (2) 711
  6. 1989 Cri. L. J. 163
  7. 1991 CriLJ 262
  8. AIR 1968 All 100, 1968 CriLJ 281
  9. 1984 AIR 512, 1984 SCR (1) 447
  10. (1925) 27 BOMLR 170
  11. (2012) 5 SCC 1, 2012 AIR SCW 3660

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