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Justification of imposing section 144 in various parts of the Country

Section 144 gives power to a District Magistrate, a sub- divisional Magistrate on behalf of the State Government to difficulty an order to a man or woman or most people in a specific region or region to abstain from a positive act or to take positive order with respect to positive assets in his possession or underneath his management. This order can be surpassed in opposition to a specific character or well known public. The order may be handed even ex-parte. As held by means of the Supreme Court, mere apprehension of threat isn’t a sufficient floor to lower residents’ rights through invoking section 144 CrPC.

Implications:
  1. Section 144 restricts wearing any kind of weapon on that region which it’s been imposed, and people may be detained for violating it. The most punishment four such an acts is three years.
  2. According to the order beneath this segment, there shall be no movement of public and all instructional establishments shall also stay closed and there could be a whole bar on retaining any kind of public meetings or rallies throughout the duration of operation of this order.
  3. Section 144 additionally empowers the government to dam the internet get admission to.

As consistent with the section, the order can be handed only if such Magistrate considers, that the path is possibly to save you:
  1. Obstruction, annoyance or harm to any individual lawfully hired.
  2. Chance to human lifestyles, health or safety.
  3. Disturbance of the public tranquility, or a riot or affray.

Test of Proportionality and the Supreme Court guidelines:
The orders below this provision will lead to the infringement of fundamental rights to freedom of speech and expression, assembly and motion assured beneath Articles 19(1) (a), (b) and (c) of the Constitution. Hence, the orders below section 144 should meet the look at of affordable regulations as consistent with Article 19. To ascertain whether a limit on liberties guaranteed below Article 19 is cheap or not, the Supreme Court has developed the check of proportionality. In the Constitution Bench selection in Modern Dental College case , the SC held that a regulation imposing regulation might be dealt with as proportional if:
  1. It is meant to obtain a proper cause, and
  2. If the measures taken to obtain this sort of motive are rationally linked to the motive, and
  3. If such measures are important.

In Puttaswamy case , the SC laid down a four- fold check to determine proportionality:
  1. A measure limiting a right should have a valid goal.
  2. It should be a suitable approach of furthering his goal.
  3. There ought to not be any less restrictive but equality powerful alternative.
  4. The measure must now not have a disproportionate effect on the proper holder.
So, the legality of the orders passed underneath section 144 CrPC could be tested on the idea of those standards 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 the most of the provisions of the 1872 CrPC

What subsequent?
  1. The authorities should ensure that there is no blanket imposition
  2. Existing assessments and balances and judicial oversight are insufficient.
  3. Public order and right to nonviolent dissent- each must be ensured.

The Internet isn’t always most effective a medium to exercise the proper to lose speech and expression but is efficiently recognized as a catalyst in the process of providing, receiving, and sending facts. This freedom is undisputedly fundamental for a democratic agency; moreover it’s far an enabler of other socio- economic and cultural rights. From a naked studying, the applicable parts of section 144 may be carved out into three fundamental elements.
  • The authority to trouble orders lies with the District Magistrate, a sub divisional magistrate or any other Executive magistrate mainly empowered by means of the State Government in this behalf.
     
  • The grounds on which section 144 may be invoked; the reasons include: a) enough ground, b) requirement for fast prevention, c) fast treatment to save you a possible obstruction, annoyance or damage to any individual lawfully employed, or danger to human lifestyles, fitness or protection, or a disturbance of the public tranquility, or a rebellion, or an affray.
     
  • The intended recipient: after determining sufficient floor and thru a written order, the legal can direct any character to abstain from a sure act or to take positive order with appreciate to positive assets in his possession or underneath his management.

Internet, Free Speech and Section 144
The shutdown of cellular internet offerings brought about an uproar through the effected events and civil society activists and this motion taken underneath section 144 was challenged in the Gujarat High Court as a Public Interest Litigation (PIL).

Opinion regarding Internet shutdowns shrinks democratic rights
Section 144 was meant to prevent localised threats. Its citywide and statewide applications are nothing more than a wholesale suspension of fundamental rights (AP).

The passage of the Citizenship Amendment Act by Parliament has triggered significant protests and demonstrations across the country. This is unsurprising — and indeed, should be welcomed. In a flourishing democracy, non-violent protest against a controversial State action is an accepted form of engagement between citizens and the government. In India, specifically, we have a long tradition of dissent and protest, going back centuries, whether political, social, or cultural.

Unfortunately, however, the government’s response to protests has been authoritarian. It has taken two forms: The imposition of Section 144 of the Code of Criminal Procedure (CrPC) in multiple states, and the shutting down of the Internet (also in many parts of the country).

Section 144 of the CrPC has its origins in colonial legislation (it was re-enacted in the 1973 CrPC). Essentially, Section 144 authorises executive magistrates (often, representatives of the police) to pass prohibitory orders that restrict people from assembling at particular places. An order under Section 144 is often accompanied by a reference to unlawful assemblies under the Indian Penal Code; for the most part, therefore, Section 144 orders prohibit gatherings of more than four people in a given area. The underlying logic is that breaches of public order, or the triggering of violence, can be prevented if people are stopped from gathering.

Now, there is little doubt that, in principle, there may be occasions where assemblies may need to be curtailed or regulated. For example, if a mob is assembling, and people intend to deliver incendiary speeches encouraging that mob to engage in violence and arson, naturally, the State and the police will need to act preventively.

The problem, however, is that Section 144 is framed in such broad and vague terms, and with so little meaningful oversight, that it essentially allows the executive very wide discretion in prohibiting assemblies. In effect, therefore, it is no longer a shield against violence, but a sword to prevent the expression of dissent through public demonstrations and protests.

What legal standards govern the use of Section 144? Over the years, the Supreme Court has clarified that, given the importance of freedom of speech and expression in a democracy, restrictions upon these constitutional rights are permissible only if there is a direct or proximate link with the violence or public disorder.

In other words, the State can take preventive action if there is a clear case of incitement to violence or riots — but it cannot do so on a mere apprehension that public disorder might result from protests. In the latter case, it is the State’s job to ensure that adequate security arrangements are in place that allows protests to proceed in a non-violent fashion.

In practice, however, this standard is almost never adhered to. This is evident from the widespread use of Section 144 over the last few days. For example, Section 144 was imposed in the entire city of Bengaluru — covering 8.6 million people — without any indication that there existed a well-founded fear of violence in Bengaluru. Indeed, the Bengaluru police cited disorder in other parts of the country, and the potential inconvenience that protests might cause, to justify the Section 144 order. Neither of those arguments, however, is permissible under our Constitution.

In other parts of the country, the problem has been even starker. For example, Section 144 was imposed in all of Uttar Pradesh –— thus denying a state of two hundred million peoples their constitutional right to protest. This is an extremely disturbing trend, as the purpose of Section 144 was always to prevent imminent and localised threats to public order. Thus, city-wide and state-wide Section 144 orders are nothing more than a wholesale suspension of fundamental rights — the kind only seen during an Emergency.

Section 144 orders have also been accompanied with Internet shutdowns. These shutdowns are authorised by the Telecom Suspension Rules of 2017, passed under the colonial-era Indian Telegraph Act. The procedure for suspending the Internet is entirely bureaucratic in nature, and with no substantive oversight. It is unsurprising; therefore, that India leads the world in Internet shutdowns — ahead of countries such as China, Pakistan, Iran, Chad, and Egypt.

What is particularly concerning about Internet shutdowns is not only the severe disruption that they cause in an era where the Internet is indispensable to daily life, but that — as research has shown — there is no connection between Internet shutdowns and containing violence (indeed, the correlation is the opposite).

Recent weeks, therefore, have revealed an alarming shrinking of democratic space through the use of Section 144 and Internet shutdowns. It is worth remembering, however that, at this exact point, the longest Internet shutdown in the history of any democratic country, is still going on in Kashmir (137 days). The Supreme Court has reserved judgment on the case. Its verdict — expected in January — could go some way towards restoring — and protecting — the most valuable of fundamental rights under our Constitution.

Section 144 of Criminal Procedure Code (CrPC) imposes power to executive magistrate to restrict particular or a group of persons residing in a particular area while visiting a certain place or area. This move was implemented to prevent a danger to human life health and safety and to ultimately slow down the spread of COVID-19. The outbreak of novel corona virus aka COVID-19 was the reason for such threat to human life perceived by the Magistrate. This order created confusion among the general public who assumed this to be an imposition of Section 144 of Indian Penal Code (IPC) pertaining to Unlawful Assembly.

The same was later clarified by the Mumbai Police that the order was specific in nature, applicable to ‘Tour Operators’ and not the public in general. This was done so that travel groups comprising domestic or foreign nationals in the area may be curtailed. The question that now lingers around is whether the imposition of Section 144 is the need of the hour amid this crisis.

We must know that Section 144 is there to dispose of urgent cases of nuisance or apprehended danger by a competent magistrate so empowered to take such action. Although in India the number of reported cases is still low compared to other nations across the globe, one cannot ignore the harm already caused by the corona virus due to its quick growth rate and the potential to further aggravate the situation.

So, for the time being, Section 144 Criminal Procedure Code seems adequate to control the specific movement of targeted groups that are either more prone to the outbreak or are major threat for spreading the virus. This Section can also be invoked to prevent any situation of panic among the general public when it comes to shopping of essential commodities as we observe in different nations across the globe.

Thus, we can rightly conclude that imposition of Section 144 is very well within its legal competency and can be effectively imposed to tackle this pandemic as the world impatiently awaits a COVID-19 vaccine.

Corona virus Outbreak: Section 144 in Some Parts of the Country
As some cities impose Sec 144, it’s important to know where:
As the corona virus threat looms over humanity, governments and authorities are trying to explore every possible preventive measure including the imposition of Section 144 to ensure that people practise social distancing and refrain from gathering in large numbers.

Meanwhile, some districts across India and cities including Noida, Muzaffarnagar, Davangere, Nagpur and Nashik have imposed Section 144 of the Code of Criminal Procedure (CrPC), which prohibits public gatherings.
  1. Section 144 Imposed in Nagpur and Nashik
    As the number of cases rose in Maharashtra, Section 144 was imposed in Nagpur and Nashik, earlier this week. "The order shall remain in force till 31 March," Ravindra Kadam, Joint Commissioner of Police, Nagpur had told PTI.
     
  2. Mumbai Police Prohibits Group Tours under Section 144
    On 16 March, Mumbai police prohibited group tours till 31 March under Section 144.

    As a precautionary measure to prevent further spread of the COVID-19 virus, Mumbai Police has issued an order prohibiting conduct of any kind of tour involving group of people traveling together to a foreign or domestic destination organised by private tour operators or otherwise using powers u/s 144 Cr PC.

    The Mumbai Police, however, allowed exceptions in certain situations. It said, "Should anyone, including private tour operators, need to travel under exceptional circumstances, they may do so after seeking permission from the office of the Commissioner of Police, greater Mumbai."
     
  3. Rajasthan Government Imposed Section 144
    On Wednesday, the Rajasthan government announced Section 144 in the state to ramp up precautions taken due to the novel corona virus. The prohibitory orders will remain in effect till 31 March in Rajasthan, India today reported.
     
  4. Section 144 Imposed in Noida, Muzaffarnagar
    After the city reported two fresh cases of Corona virus on Wednesday, taking the overall number of positive cases to minimum 14, Noida police invoked Section 144 of the Criminal Procedure Code (CrPC) to prohibit mass gatherings till 5 April.

    The Additional Commissioner of Police, Law and Order, Ashutosh Dwivedi said:
    In view of the situation, all social, political, cultural, religious, sports-related events and trade programmes, rallies and demonstrations are being banned till 5 April. Any information related to any person infected with corona virus must not be withheld and health officials or hospitals should be informed immediately. Failure to do so would invite legal action under IPC Sections 188, 269 and 270.

    On Monday, Authorities imposed section 144 of the CrPC in Uttar Pradesh''s Muzaffarnagar too. According to Additional District Magistrate of Muzaffarnagar, Amit Singh the prohibitory order has been imposed to check the spread of COVID-19.
     
  5. Section 144 imposed in Jammu and Kashmir's Anantnag
    As the state has registered atleast 3 positive cases of corona virus, the district magistrate of Anantnag, Bashir Ahmad Dar has banned the gathering of five or more people in any public place.

    I, Bashir Ahmad Dar, KAS, District Magistrate Anantnag in the exercise of the powers vested in the under section 144 of CrPC do hereby impose restriction/ban over the assembly/gathering of more than five persons at any public place of entire Anantnag district which includes all towns and villages with immediate effect for a period of one month.
     
  6. Section 144 Imposed in Davangere District of Karnataka
    Prohibitory orders under section 144 of the Code of Criminal Procedure (CrPC) have been imposed in Davangere district till 24 March in order to contain the spread of corona virus.

    The fairs, processions, conventions, conferences, sports and religious events set to take place in Davangere district over the next week from 18 to 24 March are prohibited. We have deemed it necessary to stop the gathering of people in large numbers.

    What Is Section 144 and what is the Punishment under It?
    Section 144 of the Code of Criminal Procedure or CrPC can be used to prevent and address urgent cases of nuisance or apprehended danger. In the case of a pandemic, such use of the Section could prove beneficial, though it has been misused in the past to clamp down on peaceful protests.

    Section 144 of the CrPC can be used to ban protests, prohibit public gatherings, and restrict access to certain areas. These public gatherings can be social or political; they can be trade fairs or rallies, etc.

    Section 144 can be imposed for up to two months. However, if the government decides it is still not safe for the public to gather, the prohibitory orders can be extended six months, but only from the date of the issuance of the section in that particular area.

    The maximum punishment under the Section 144 is imprisonment, which may extend to six months, or fine, which may extend to one thousand rupees, or both.

Conclusion
After cautious analysis of the worried phase within the mild of judicial pronouncement and academic commentaries, the paper may be concluded with the declaration that, segment 144, albeit discretionary, is an vital detail in the set of measures that are undertaken by using the executive frame of any district which will save you as well control situations of urgency. There were several instances filed towards the segment difficult the constitutional validity of the phase and an identical variety of choices upholding its legitimacy.

Though, discretionary powers are conferred upon the Magistrate below this phase, there are various fetters on its exercising so that it will prevent any arbitrariness or unfairness in the order. The truth that the High Court can review the order of a Magistrate underneath this section makes the workout of this strength greater rational.

Moreover, the growing instances of riots and other incidents ruining public peace and quietness has made it obligatory for the Magistrates to have such powers so one can at ease the common humans the protection and peace that is critical for his or her residing. However, at this juncture, it can be opined that there seems to be a want to balance the granting of plenary powers through the legislature to address emergent situations, and the need to defend the private liberty and other freedoms granted to the citizens below the essential rights of the constitution, specifically Article 21.

References:
  1. https://economictimes.indiatimes.com/news/politics-and-nation/
  2. https://timesofindia.indiatimes.com/india/
  3. https://www.hindustantimes.com/analysis/how-section-144and-internet-shutdowns-shrink-democratic-rightd/story-9D8J8DrbjKfzLXEtlQ8k2K.html
  4. https://yourstory.com/2020/03/section-144-crpc-needed-covid-19?utm_pageloadtype=scroll
  5. https://www.thequint.com/news/india/
Written By: Muskan Jain - B.Com LL.B 4th Year - Mody University (laxmangarh)

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