Guest Post: When Might is Not Right — Police Violence and the Coronavirus Pandemic

(I am pleased to present a guest post by Shukr Usgaokar, a Fourth Year Law Student at the V.M. Salgaocar College of Law, Goa)

Since the imposition of a lockdown by the Central Government and State Governments all across India to contain the spread of Covid-19, several press reports have emerged showcasing brutalities resorted to by the authorities. Violators of the apparent “curfew” have been made to crawl on the street, do sit-ups, suffer lathi-charge, or were simply beaten black and blue by police officers. Some have argued that these are isolated incidents; others have justified such forms of punishment as a necessary-evil if the lockdown is to be effectively implemented to contain the spread of Covid-19. But the question which arises regardless is whether this use of force by the police is permissible under law, and if so, what is the magnitude of force which the law enforcement agencies are entitled to use.

No arrest, no force

Since law and order is a state subject, different states have enacted different statutes to regulate their respective police forces. The Police Act, 1861, is silent on the issue of whether and if so, under what circumstances the police officers are justified in using force while discharging their duties. The only provision that could serve as a source of power is Section 23, which simply provides that it is the duty of police officers to inter alia "detect and bring offenders to justice". 

The Code of Criminal Procedure, 1973 [Cr.P.C.] is more explicit. Section 46(2), entitled “Arrest how made”, states that if the person who is to be arrested forcibly resists the endeavour to arrest him, or attempts to evade arrest, the police officer (or any other person) may use all means necessary to effect arrest. But the corollary of this provision would be that all means necessary, which would include force, are to be used only while making an arrest and that too only when the person who is to be arrested either resists the arrest or attempts to evade it.

Controlling frenzied mobs

Along with investigation of offences, the police in India have the additional function of maintaining law and order which is detailed under the 1973 Cr.P.C. Section 129 of the Cr.P.C., as the title suggests allows a police officer to use force to disperse an assembly. But there are, again, limits on how this power can be used. In Karam Singh v. Hardayal Singh [1979 Cr.L.J 1211], for instance, the Punjab & Haryana High Court culled out the three essential requirements that are ingrained in Section 129:

1. There should be an unlawful assembly with the object of committing violence or an assembly of five or more persons likely to cause a disturbance of public peace.
2. An executive magistrate should order the assembly to disperse.
3. In spite of such orders, the people do not move away.

Thus, arguably, the pith and substance of Section 129 is that force is to be resorted to as a last resort, when the crowd, which in the opinion of the Magistrate is about to disturb public peace, does not disperse, even after it is ordered to do so.

The other source of power is, obviously, Section 144 of the Cr.P.C. read together with Section 188 of the Indian Penal Code. Section 144 orders can be passed by Executive Magistrates (which includes the High-Ranking Police) to prohibit all kinds of conduct for up to 2 months, and then the defiance of such orders is rendered punishable under Section 188 of the Penal Code. Much like Section 129, the use of Section 144 also requires that certain preconditions must exist [Most recently elaborated upon by the Supreme Court in Anuradha Bhasin [Writ Petition (Civil) No. 1091/2019 (Decided on 10.01.2020)]. 

Even if we assume that a valid 144 Order has been passed, it must be established that the existence of such orders is communicated to persons, without which their so-called defiance can't be penalised. But in the present scenario, can it really be said that the orders were explained or communicated in all cases where the police went ahead to forcefully apprehend "violators"? 

How much is too much?

It might be the case that the though the use of force is justified, the quantum of force used is not. Paragraph 4 of The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials which were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba in 1990 enjoins the law enforcement officials to use, as far as possible, non-violent means before resorting to the use of force and firearms. 

Even when the use of force becomes unavoidable, paragraph 5 mandates that they should exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved while minimising damage and injury. The Code of Conduct for the Police in India which was formulated at the Inspector Generals of Police Conference in 1961 has been cited with approval in P. V. Kapoor v. Union of India [1992 Cr.L.J. 128 (Delhi)] and states that while maintaining law and order, the police should as far as practicable use methods of persuasion, advice and warning and when the application of force becomes inevitable, only the absolute minimum required in the circumstances should be used. 

This view was reaffirmed more recently by the Supreme Court in Anita Thakur v. Union of India [(2016) 15 SCC 585] where it was held that even when it is the agitating protesters who start pelting stones on the police, use of excessive force and misuse of power by the police amounts to not only a violation of human rights and human dignity but can give rise to liability in civil and criminal law. 

Even the imposition of Section 144 of the Cr.P.C., as has been done in several districts to enforce the lockdown, cannot serve as a licence for unchecked, violent, police action. Though the Supreme Court in Ramlila Maidan [(2012) 5 SCC 1] upheld the imposition of Section 144, it ordered disciplinary action as well as registration of criminal cases against the all the erring police personnel who had resorted to brick-batting, lathi charge and excessive use of tear gas shells upon the crowd.

It is pertinent to note that the above cases deal with action taken by the police to suppress unruly and violent mobs. It is obvious that an even lesser degree of force would be called for while arresting an offender, which is an investigative function of the police. Useful in this regard is reference to the test laid down by United States Supreme Court in Graham v. Connor [490 US 386] in 1989, which held that the officer’s actions must “objectively reasonable in the light of the facts and circumstances confronting them, without regard to their intent or motivation.”

Wits, not Fists

It is abundantly clear that the conduct of the police authorities has been grossly disproportionate and amounts to a flagrant violation of human rights of those who were at the receiving end of such treatment. As mentioned above, disobeying curfew orders can be an offence under Section 188 of the Penal Code in some cases. But even then, the correct course of action would have been to arrest the curfew violators and release them on bail since that offence is cognizable and bailable and prosecute them according to the law when normalcy is restored, rather than dish out instant justice. 

If video-clippings are to be gone by, the curfew violators were unarmed, did not attempt to evade or resist arrest. However, the police officers have, without giving any warning and in some cases without even making an arrest, mercilessly assaulted the purported offenders. 

It is disheartening to note that authorities are treating a health emergency and humanitarian crisis as if it is a law and order problem. Even if the situation is somehow brought under the purview of section 129 of the Cr.P.C, the actions of the police amount to throwing every pre-requisite to the wind. The rightful conduct would have been to order people to disperse and stay at home, if at all there was a gathering of people, the dispersal of which was necessary to prevent them from contracting the infection.

The police officials must keep in mind that citizens are not violating the curfew because they want to or because they are desirous of getting infected with the Coronavirus. They are compelled to do so in order to buy groceries, medicines and other essentials, particularly when the performance of the home delivery service has been less than satisfactory. 

Under such circumstances, the police authorities ought to show restraint, empathy and a co-operative attitude towards the citizenry rather than indulge in high-handed behaviour and unprovoked hostility. The fact that the curfew is necessary to break the chain of transmission of Covid-19 and has been imposed for the own good of the people is no excuse to use force since as per Graham’s case (supra), the intention of police is immaterial and what must be seen is whether the conduct was objectively reasonable under the circumstances. However, it would become apparent that their conduct has been anything but reasonable with even those who were exempted from the curfew such as doctors, delivery personnel and pedestrians bearing the brunt of the viciousness of the police.

This flies in the face of Article 5 of the Universal Declaration of Human Rights which says that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Referring to this, the Supreme Court in the celebrated case of D. K. Basu v. State of West Bengal [AIR 1997 SC 610] held that expression "life or personal liberty" in Article 21 includes the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries.

Way back in 1981, Justice V. R. Krishna Iyer commented that “Police rely more on fists than on wits, on torture more than on culture…Nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights”. Nearly 40 years later, it would appear that not much has changed.

Section 144 Cr.P.C. — Part IV: Public Order and Political Agitation (1901 to 1920)

(This is the Fourth Post in a series on the Blog. Previous posts can be accessed here)

The previous post expanded upon the officers who dealt with the powers conferred under what, by 1898, was Section 144 of the Criminal Procedure Code [Cr.P.C.]. The post also elaborated upon the expansion of such powers by the enactment of new police legislation, or the amendment of existing laws to empower police to address public order problems. Before that, we had begun drawing a long historical arc to see the evolution of Section 144, which is at the heart of public order policing in India today. This post comes back to that effort, and sheds light on the period from 1901 to 1920. 

Judicial Decisions: A Skewed Archive

The reported judicial decisions from 1861 to 1901 were few, but nevertheless, significant. The cases showed how the legislators at that point in British India were keenly tuned into how the statutes were being applied. This litigation experience was useful feedback for the legislators, who then amended the law to rectify whatever defects had been made apparent. A good example of this was the addition of a time-limit on the duration of any orders under Section 144. Where no such temporal limits were initially present, the law was amended in 1872 after courts stressed upon the need for such a limit to the powers conferred by this provision. 

At the same time, the litigation history of Section 144 also helped give an idea of the social context in which the provision was being used. The few reported decisions available suggested that one of the main uses of Section 144 was to help keep the peace between rival groups — be it religious sects, landlords, or factions in a village. At the same time, a few stray decisions had Magistrates using this provision as a tool for good governance — by regulating how boats could be docked at the harbour, say — and such administrative usage of the provision was strongly deprecated by the High Courts.

I've added details of the reported decisions for the period from 1901 to 1920 to the Google Sheet, this time including references to cases under the Police Act. It would appear that the the most common litigation in the High Courts around this provision continued to be that between rival groups seeking to enforce / defend their private rights. In this regard, it is notable just how frequently ordinary disputes over land rights ended up with Section 144 orders being passed, which were then set aside by the High Courts. A line of cases emanating from the Patna High Court is most instructive in this regard. There are also two cases that came up where orders under Section 144 / Police Act had been passed for good governance purposes: One of these regulated the carting of dogs, and the other regulated who could go through a railway station. In both cases, the orders were struck down.

Before drawing conclusions about the social context in which these provisions were being used, let's take a step back, and square this information from judicial decisions with what else we know about this period from 1901 to 1920.

According to most accounts, this period was one of the most volatile periods in the history of colonial India. Recall that this is the era of the infamous Partition of Bengal, of the onset of revolutionary and anarchical activity across the colony and secret societies, of the First World War, of the Khilafat movement, and of the infamous Rowlatt Act. However, none of this is reflected in our small set of High Court decisions. In fact, I found zero cases where the High Courts dealt with Section 144 orders passed in such kinds of issues. The only case I found where the facts concerned political agitations was one under the Calcutta Suburban Police Act, where the Calcutta Police had banned one Leakat Hossein from carrying out Swadeshi Agitations in 1907.

Section 144, Political Speech, & the Seditious Meetings Acts

So, was Section 144 really not being used by the government to rein in political agitators during this period? Of course not. During this time, the limits of Section 144 were being tested as a strained set of administrators relied on this provision to curb political speech and expression. While it did not end in courtroom battles, there was considerable debate within the administration itself, much of which is now publicly accessible thanks to the digital repository of the National Archives of India. 

The tense situation created by the Partition of Bengal in 1905 led many District Commissioners and Magistrates to use Section 144 and prohibit public meetings which, in their view, involved seditious oratory. But something was clearly amiss, for in 1907 the Government brought about the Regulation of Meetings Ordinance to prevent "seditious meetings" and applied it to parts of Bengal. The debates on the eventual Prevention of Seditious Meetings Act of 1907 are silent on this aspect, and Dr. Rash Behari Ghosh's remarks of Section 144 being enough to curb seditious meetings went unanswered. 

A view to how the Government approached the issue can be gleaned from the Home Department files on the 1907 Act, specifically the one marked "HOME_POLITICAL_A_1907_DEC_64-84". The file contains a letter dated August 12, 1907, sent by the Chief Secretary to the Chief Commissioner, Central Provinces to the Secretary of the Home Department, Government of India, giving his opinion on the draft legislation shared with him (Pages 130-132). On whether Section 144 was sufficient to deal with seditious meetings, the letter reads:

"Section 144 of the Criminal Procedure Code would justify the issue of an order to this effect to a fire-brand orator; but disobedience, to that order cannot be punished under the Indian Penal Code unless the court will hold that his action produced or tended to produce a breach of the peace. Fear of a disturbance of the public tranquillity justifies an order under section 144 but not a conviction for disobedience of it under section 188 of the Indian Penal Code which was never correspondingly amended. The object sought could be gained by such an amendment of section 188 of the Indian Penal Code. The interpreta­tion of section 144 of the Civil Procedure Code [sic], read jointly with section 188 of the Indian Penal Code, is so overlaid by a mass of rulings that it is difficult to extract what the law on the subject really is."

Thus, one big flaw in the potential for using Section 144 to curb political agitations was the absence of any subsequent sanction: Even if somebody disobeyed the order, punishment could only follow in very limited cases.

More arguments on the inadequacy of Section 144 are found in a letter dated July 18, 1907 that was appended to the letter sent in August. This earlier letter was sent to all Commissioners and Deputy Commissioners in the Central Provinces and Berar by the Office of the Chief Commissioner, Central Provinces, giving guidance on using Section 144 to deal with political meetings (Pages 138-139). I've linked a typed out copy of the letter here, which merits a full reading.

In the interests of brevity, here I only flag three of the other concerns that the letter raised in using Section 144 for the purpose of containing political speech. One point was the lack of prior notice that a meeting was to be held: it would be very difficult to issue orders under Section 144 to prevent a seditious meeting if there was no prior notice at hand. Another point was the concern of Section 144 with preventing public disorder. Thus, it could not be used "if the sole object of the Magistrate were to prevent an extremist orator from making a Swadeshi speech which might or might not contain seditious phrases". And, finally, there was the problem of legality. There was always the chance that the order under Section 144 could be challenged, either directly or in a prosecution for Section 188 IPC, and so Commissioners were advised to only pass orders which could withstand subsequent legal scrutiny. 

As a result of these issues, the Seditious Meetings Act was passed in 1907 with a three-year expiry date. It was given an extra lease of life in 1910, and then was made permanent in 1911. However, even though the legislators had stressed on the inadequacies of Section 144 to push the case for having a special law in the nature of the Seditious Meetings Act, the ordinary law continued to be used for the containment of political speech throughout British India. Indeed, the sufficiency of the ordinary law was a constant refrain of the Indian benches who were opposing the 1911 Act in the Legislative Council debates. 

Perhaps it was due to this supposed adequacy of Section 144, coupled with India being placed under wartime legislation for a large part of the 1920s, that the Seditious Meetings Act was rarely used till its eventual repeal in 2018. The same can hardly be said about Section 144, which emerged as one of the "repressive laws" of the colonial regime in the subsequent decades.

Next Post: Emergence of a Repressive Law

The years between 1901 to 1920 marked a transformation in how Section 144 came to be used across India. A growing political consciousness led to this provision being used to prohibit public meetings where, according to the British, seditious speeches would be made. Yet, in spite of this, a reference to the debates of the Legislative Council when this issue of curtailing public meetings was raised shows that the Indian members of the Council were quite sympathetic to this provision. It is perhaps notable that while the Rowlatt Act, the Seditious Meetings Act, and the Defence of India Act were all part of the brief of the Repressive Laws Committee of 1922, Section 144 was not.

The resentment surrounding Section 144 was to considerably grow in the next two decades, as it became a key instrument in the legal arsenal to combat large-scale political mobilisation in India. By the end of this period, Section 144 also came to be seen as a Repressive Law, with many unsuccessful attempts being made for its repeal. All this will be the focus of the next post in this series.

Mind the Gap: Improving the Links Between Courts and Codes

(This post first appeared on the RSRR Blog)

It has been seventy years since we, the people of India, gave to ourselves the Constitution. But long before we did so, the British gave to us a system of laws, and we continue to live with it till today. This system of laws consisted of lengthy statutes, which were detailed to the hilt, to have the maximum certainty and predictability possible.

Complicated systems end up making law the exclusive domain of lawyers and judges, while simple codes make the law accessible for all, and that is how it should be. However, even the most detailed code might have gaps, and can certainly allow for differences of opinion about the meaning of words. Which is where courts came in, whose primary task was to apply the codes and seam any creases.

For this setup of statutory law to work efficiently, it is only natural for legislators to keep a close eye on what issues emerge in the working of their codes. There must be a feedback loop, where legislators update the law whenever courts reveal serious issues that were somehow ignored or not thought of previously. This update might be an amendment to fill the gap, or a clarification to set any doubts at rest, and ensure everyone is on the same page.

If the update exercise stops happening, the point of having the codes will slowly be lost. It will not be enough to simply read the text of the law; one would also need access to case reports to understand what that text means, or how it is applied in specific cases. Slowly then, we find that the law is no longer accessible to all, but an undemocratic exercise where only those who know the magic words can make things happen.

This parable of the gradual transformation of statutes nicely captures the current situation of the Indian criminal process. Once at the vanguard of a codification project where legal statutes were periodically updated based upon feedback from courts and administrators, India’s criminal law codes are now the pre-eminent examples of laws whose meaning cannot be gleaned without copious references to a gargantuan and complex body of judicial opinions. And considering that it is the poor who are most in contact with criminal law, we can imagine the especially insidious nature of this transformation—those who cannot afford lawyers in India are most in need of them for the simple task of understanding just what the law says.

For instance, consider Section 167(2) of the Criminal Procedure Code 1973. This provision says that a person cannot be detained in custody for longer than sixty or ninety days in a pending investigation (depends upon the alleged offences), and upon expiry of this period the accused “shall be released on bail if he is prepared to and does furnish bail”. Unfortunately, there are some gaps here, for instance: (i) must an accused file an application to trigger this process? (ii) what if the accused cannot furnish bail within sixty days? (iii) when do sixty days expire? Now, if one opens a legal commentary on these aspects, a copious set of citations can be found. And even after that, there are local practices to account for in respect of issues (i) and (ii). This is the kind of situation that cries out for a statutory update: If there is ever a need for clarity in law, it is on questions of personal liberty. And yet, the law remains as it was in 1973.

I also want to highlight a set of connected and very problematic consequences that follow if gaps between the courts and the codes continue to grow. The first of these is the disastrous impact had upon the cutting edge of law—cases where individuals are engaging in conduct at the limits of legality. This could be the case of a free speech activist testing the limits of obscenity law, or the case of a start-up engaging in bitcoin or medicinal marijuana business.

Disputes about where the lines of legality are drawn will certainly come to court, and the status quo will shift. A law might be struck down as unconstitutional, or courts might insert restrictions upon how the text can be interpreted. But if that changed legal position doesn’t get reflected in the statute itself, how can we be sure that the same issues will not crop up in respect of other persons engaging in the same conduct?

I wish this was a hypothetical, but it isn’t. One glaring example of this is the afterlife of Section 66-A of the Information Technology Act, 2000. Struck down as unconstitutional by the Supreme Court of India in 2015, a study reported that the police across many states continued to arrest persons under this zombie law well into 2019. It bears importance that within those four years, the statute itself wasn’t updated to remove all references to Section 66-A. All that was done, and it was done only in 2018, was to add a footnote declaring the provision was no longer valid law.

A different example is the rampant misuse / abuse (call it what you will) of sedition laws across India. Despite numerous judicial decisions clarifying that there must be incitement to imminent lawless action and not mere advocacy of certain conduct for a speech act to be called seditious, there has not been a single update to the text of Section 124-A of the Indian Penal Code. Of course, it can and should be argued that the police and other agencies have a duty to keep abreast of the law, and so not updating the legal text is no excuse for the police arresting persons on sedition charges in connection with a primary school dramatic play. But a clearer code would help curtail such abuses of discretion, leaving lesser room for ambiguity and unnecessary argument.

How difficult can it be to update laws periodically? There are state law commissions, as well as a Law Commission of India, and one of the primary responsibilities of these bodies is to improve the Indian legal system. Could there not be a process of periodical review of the laws, much like our decadal census, to take care of the situation? That there is almost no country with a concrete process in place mandating the periodic review of legislation gives us an indication of how hard this can be. After all, legislatures have tons of work, and there is little political mileage in tinkering a law that is doing alright for the most parts. Although it must be noted that today, most of the classic civil law jurisdictions (if one accepts this crude classification between “common” and “civil” law terrains) are governed by EU law, which comes with its own difficulties of execution and implementation.

If this necessary periodic review by legislature appears to be a bridge too far, then why not the legislature depute a body to work actively at creating a criminal practice manual? This could link the courts and the codes by having small explainers, distilling the essence of how judicial decisions have interpreted the text. By having a government-appointed body at the helm, rather than a group of private persons, that distilling exercise will have the weight of authority and avoid critiques of bias and nepotism. This body could perhaps be modelled on the lines of the Sentencing Commission, which is tasked with rationalising law and practice on sentencing to craft Guidelines that can be applied by courts. Of course, this exercise of technocrats distilling the law suffers from the criticism of being just another undemocratic scenario to replace the already existing one we are suffering.

Even though it has not completed a full year in power for its second term, the government has repeatedly stated that it is considering amendments to the criminal laws to bring them in tune with the aspirations of 21st Century India. As this short essay argues, perhaps the best way for any government to fulfil this promise is to create a process of periodical legislative review, rather than one that happens once every fifty, or even one hundred and fifty, years.

Guest Post: Rethinking the Conviction Model for Non-Homicidal Repeat Sexual Offences

[I am happy to present this guest post by Ms. Ashna D., a third year law student in the undergraduate program at NUALS, Kochi.]

When the Supreme Court in Mithu Singh v. State of Punjab [1983 SCR (2) 690] struck down as unconstitutional the mandatory death sentence for murders committed by life convicts, the Court made its position very clear – “The legislature cannot make relevant circumstances irrelevant, deprive the courts of their legitimate jurisdiction to exercise their discretion not to impose the death sentence in appropriate cases, compel them to shut their eyes to mitigating circumstances and inflict upon them the dubious and unconscionable duty of imposing a preordained sentence of death.” 

This view was echoed by the Justice Verma Committee Report when it specifically opted against prescribing a maximum sentence of death for repeat offences of rape. Despite this, Parliament in the Criminal Law (Amendment) Bill, 2013 chose to mete out harsher punishments in certain cases and argued that if a person repeatedly commits the sexual offence of rape, the punishment has to be death.

Recently, India has been witnessing a disturbing glorification of the death penalty as a proportionate punishment for heinous sexual offences. This dangerous rhetoric seems to have wriggled its way into the sentencing process with the Supreme Court allowing the “collective conscience” to influence the quantum of punishment. This post highlights a need to reassess the constitutionality of Section 376E of the Indian Penal Code [IPC] which adopts a ‘conviction model’ that is vague, disproportionate and arbitrary. It argues that such a provision unthinkingly forecloses the possibility of reform and rehabilitation of convicts and victims respectively, by placing two glaringly different classes of offences on the same footing. For, as Lord Macaulay noted in his ‘Notes on Punishment’ on the Penal Code, “To the great majority of mankind, nothing is so dear, as life”.

A Misguided Interpretation of Enhanced Punishment

The outrage that followed the 2012 Delhi gang-rape led to the passing of a slew of amendments pertaining to the offence of rape. Apart from broadening the definition of rape to include oral and digital penetration, another amendment provided that persons who had already been convicted of rape under Sections 376, 376A or 376D of the IPC shall suffer an enhanced punishment under Section 376E IPC, which would either be imprisonment for the rest of his life or the death penalty as well. A literal reading of the Section only requires a previous conviction in order to impose the death penalty, and deviates from the ‘chronology of offences’ model followed under Section 75 IPC.

The rationale behind Section 75 is founded on the principle that criminal law affords limited patience to repeat offenders who have failed to “learn their lessons from the initial punishment”, and is borrowed from American criminal jurisprudence. It can be argued that it is wrong to keep imposing increasingly severe penalties for each new offence. This is because such provisions give too much weight to persistence and violate the principle of proportionality, creating a systemised gradation of punishments that fail to understand the enormously differing motives and circumstances underlying each individual crime.

Nonetheless, a criminal justice system that allows for recidivist provisions must at least ensure their fair implementation. This is precisely what was argued for by the petitioners in the case of Mohd. Salim Mohd. Kudus Ansari [Writ Petition No. 1181 of 2014, Decided on 03.06.2019 (Bombay High Court)], where the accused was sentenced to death upon ‘subsequent conviction’ despite the trials for the first and second alleged offences of rape being conducted almost simultaneously. By adopting the ‘conviction model’, the Bombay High Court not only turned a blind eye to the marginal time difference between the two convictions, but it also arbitrarily deprived the accused of his single opportunity to seek reform. This confusion surrounding the term ‘subsequent conviction’ makes its application inherently vague and may trap the innocent by not providing for an adequate warning.

Faulty Foundations

It is only reasonable to assume that crime is deterred not by increasing the gravity of punishment, but by ensuring its certainty. Nonetheless, a criminal justice system must consciously adhere to the principle of proportionality. That is to say that it does not allow punishment of the innocent; for, any punishment in excess of what is deserved for the criminal conduct is punishment without guilt. The logic followed by Section 376E IPC is principally unsound on two grounds. Firstly, barring Section 376A IPC which itself requires the causing of death, imposing a sentence of death for non-homicidal offences is antithetical to Articles 14 and 21 of the Constitution and therefore in gross violation of the principle of proportionality.

As was observed by the Supreme Court of the United States in Coker v. Georgia, rapes are no doubt barbaric crimes that deserve serious punishment. However, the Court opined that the death penalty is a needless and purposeless imposition of pain and suffering on a rapist who, as such and as opposed to the murderer, does not unjustifiably take human life. While the depravity and sheer inhumane nature of countless crimes may push us to make demands for the capital punishment its severity and irrevocability must be kept in mind. To equate the two would therefore be manifestly unjust.

Secondly, the objective of Section 376E IPC, to provide for enhanced punishment of repeat offenders, can only be achieved if the punishment awarded under this section exceeds the punishment awarded for the first conviction of rape under Section 376 (only rape), 376A (causing death or resulting in persistent vegetative state of victim) or 376D (gang rape). Ergo, if the first sentence is one of life imprisonment, for the second conviction to be an enhanced punishment it cannot be a second life imprisonment. This is by virtue of Section 427(2) of the Criminal Procedure Code which provides that that a subsequent sentence of life imprisonment imposed will run concurrently with the previous sentence. Thus, the ultimate purpose of Section 376E will be defeated if the enhanced punishment, by necessary implication, is not capital punishment. Such a position not only runs the risk of erroneous executions but is also in direct violation of the dictum laid down in Mithu Singh and the ‘rarest of rare’ doctrine propounded in Bachan Singh v. State of Punjab [(1980) 2 SCC 684].

On Rehabilitation and Reformation

By robbing judicial discretion in the sentencing process and pursuing our thirst for revenge, we are forgetting that a criminal is a victim of his circumstances in a society that has failed him. If the recent rise in sexual crimes is any indication, it is a telling tale of a nation that still perpetuates patriarchal notions and accepts the power and dominance of a man over a woman’s bodily autonomy. Our governments cannot offer society false hope that by killing sexual offenders via a death penalty we can eradicate sexual violence. By conveniently enlarging the scope of penal provisions to provide harsher punishments for repeat offenders, the State is shirking its responsibility of creating a strong framework to rehabilitate survivors of sexual offences within which various stakeholders must continuously assist them in rebuilding their lives.

Concomitantly, the State also owes to convicts a rightful chance to reform. This duty entails reforming the manner in which the practice of life imprisonment is implemented. Issues such as overcrowded and understaffed prisons, physical and mental torture of inmates, and inadequate recreational facilities have long lasting impacts on the lives of prisoners in ways that hinder reform and render their reintegration into society extremely problematic. Add to this the innumerable years convicts spend languishing in these very prisons with the prospect of death hanging over the heads. In a broken criminal justice system such as ours within which the very administration of the capital punishment is so intrinsically fallible, to extend its application to non-homicidal offences is to commit the gravest form of injustice disguised as the law. 

Descending into the Abyss: The Denial of Bail in the KLE Students Case

Basit, Talib, and Amir are three students of the prestigious KLE college in Karnataka. They are all in their early 20s and have received scholarships to pursue their college education. They also happen to be Muslim, and hail from the erstwhile state of Jammu and Kashmir. These students made a short video in which it appears that they are singing a song and changing the lyrics to say "Pakistan Zindabad" at one place. They did not ask anyone to sing along by chanting this on stage, but rather, they made this video in the confines of their room. They did not ask anyone to come to the streets to condemn the country that they are citizens of, to protest against a government, against a law, or against anything. What they did was that they made a video, changed the lyrics of a song and sang it, then shared it on their social media account(s). 

They were arrested for allegedly engaging in seditious conduct. Yes, sedition — a crime that requires either saying or writing anything which brings the Government into hatred or contempt, or excites disaffection towards the Government and is punishable with imprisonment for life. They were also alleged to have promoted enmity between different groups of the community by this dastardly deed of making a video with a "Pro Pakistan" slogan in it. Not only were they arrested, but their conduct was deemed so hazardous that the very lawyers whose professional duty requires them to assist any person in need passed resolutions banning any legal aid from being extended to these twenty-year olds. 

It was only after intervention by the Karnataka High Court that these boys managed to get a lawyer. And, even then, the lawyers needed massive police protection to make their way to their clients, for it turned out that their video had created such a hostile situation that there seemed to be a threat to the lives of any person seemingly connected with the boys. Even so, the lawyers performed their duty and filed a bail application before the jurisdictional court. And by all accounts, it was an arguable case for bail: (i) their clients were young first-time offenders, (ii) the police already had seized the incriminating evidence which could not be deleted or tampered with, (iii) the boys were willing to subject themselves to any conditions and produce sureties ensuring their presence as and when required, and (iv) by all accounts, the allegedly criminal act of saying "Pakistan Zindabad" in a video could not satisfy the legal threshold prescribed for the serious crime of Sedition, where the law had consistently demanded nothing less than incitement to public disorder. 

What nobody could have accounted for are the manifest illegalities and complete abrogation of judicial function that describes the order through which the bail applications of Basit, Talib, and Amir have been dismissed by the jurisdictional court in Hubli / Hubballi. The order displays a near-total failure to consider the bail applications for what they were — applications seeking release pending investigation into the allegations — and, instead, is a classic demonstration of an overzealous court pre-judging the merits of a case where the bogey of national security is raised to condemn the accused. 

In a complete dereliction of duty and contrary to the legal position on bail most recently encapsulated by the Supreme Court in the Chidambaram cases, the Hubli court meekly accepts the shockingly bald and generic assertions made by police about the accused persons tampering with the evidence and fleeing from justice if released upon bail. The only basis to suggest that the accused will flee from justice if granted bail was the fact of their Kashmiri heritage, with the police stating that it will be "difficult" to get them to appear if they fled to the region. One can only imagine that this was due to the sheer geographical distance between Kashmir and Hubli, for the ferocity of policing in that region surely would ensure that the accused could not "flee" if they went to Kashmir. 

The court appears to be in such awe of the grave and serious allegations levelled against the accused by the police, that it completely fails to consider whether the conduct in question even meets the legal requirements of the alleged offences. Thus, while many people might think it is a bad to say anything "Pro Pakistan", that does not automatically make any such act seditious, nor does it automatically incite hatred towards India, or between any groups in the community. What is grave here are not the allegations, but how the court failed to conduct even this basic level of scrutiny while assessing the prosecution case, and thus failed to rise above the kind of assertion-based arguments that are the staple for television shouting-contests but not for courts of law.         

Rather than thorough engagement with the legal considerations for bail and a test of the police claims, what we get is a sermon from the court about the duties of young persons and the dangers of engaging in any speech that even remotely suggests affection towards the neighbour with whom the court (incorrectly) says India has severed bilateral activities. The court reminds us that the "safety and security of this Country gets priority over all", and is so worried about the anti-national activities and the threats to national security in the present climate that it openly advocates for using the criminal law to monitor such ideas so that they can never "hatch" or come out of their "shell". At this point, one can't help but be reminded of the similarities here with the Delhi High Court's bail order in Kanhaiya Kumar's case, where the court did grant bail but only after literally "singing" paeans to state interests. 

The court's surrender to the throes of national security is complete when it informs us that the above considerations demand that the court "must allow the investigation agency to do its job with any body's intervention" in the present case. What are courts supposed to do then? Perhaps deny all bail applications in cases where the offences alleged are those affecting national security and remand all accused persons to custody with a short lesson on having good ideas that will help "accelerating the economic growth of the country". Or, they could do their job, which is to decide a bail application for what it is worth, and leave the ultimate adjudication of guilt or innocence for later. 

Basit, Talib, and Amir, were all arrested and sent to jail for making a short video. They were denied a lawyer because an entire Bar Association prejudged their guilt and deemed them unworthy of even a shot at trial. Now, their guilt has been prejudged by a court, which supported such a total surrender to the interests of national security that it consigned personal liberty to the bin, making it seem like the country is at war today. Any person reasonably well-versed with the law would argue that there is a chance of this order being overturned by the High Court, and bail being granted. But that is hardly the point here. Today a court has eviscerated the presumption of innocence that these students were entitled to, and also extinguished for them the promise of personal liberty that is guaranteed by India's Constitution. Thus, instead of having a chance of giving their exams and living a normal life while allegations against them are proven in court, these boys will suffer the ignominy of prison and probably carry the label of anti-nationals for months or years, all because they made the mistake of singing a stupid song while they were young and the air was charged with emotion.

[The post was updated on 10.03.2020 to remove references about whether a request for transferring the case was made or not]

Section 144 Cr.P.C. — Part III: Expansive Powers, in the Hands of Many Officers

(This is the third post in a multi-part series on the Blog on Section 144, Cr.P.C.)

The previous post traced a historical arc stretching from 1861 till the end of the 19th Century to show the gradual development of Section 144, Cr.P.C. It looked at the socio-political contexts in which the powers conferred by this provision were being applied, and legally resisted, and argued that the legal framework regulating the exercise of these wide powers still permitted for vast arbitrariness in how officers wielded their discretion. But on re-reading the post, I thought there was a need to develop these points further before we go ahead in engaging with Section 144 during the period from 1901 to 1950, as advertised at the end of the last post. My apologies for this detour.

Like the title suggests, in this post, I try to go beyond the expansive nature of powers under Section 144, Cr.P.C. and instead shed more light on the authorities empowered to use these powers (relying heavily on the analysis offered by Professors Singha and Hussain, which I referred to in the last post). Besides this aspect, I also take note of how from 1860 till 1900 (almost), similar powers came to be vested in police officers under various Police Acts. The result was a legal regime being birthed by the start of the 20th Century, in which a laundry-list of executive officers wielded immense discretionary powers under different laws, and could obstruct any aspect of public life in the name of maintaining "public order" or preventing "public nuisance". This multi-layered legal regime remains a feature of Indian law to this day — something lawyers have had to face over the past few months.

The "Responsible Officers" tasked with Maintaining Public Order

One of the hallmarks of the colonial model of governance was creating a nodal officer as the centre of power for a region. Thus, control over all aspects of revenue collection, policing, land regulation, and the dispensation of justice through courts, came to be vested with a single officer known as the District Commissioners or District Magistrates. These officers became the cornerstones of the colonial administration in India, imagined as having a steady grip on the pulse of all local affairs. For many persons in the District, these were the supreme manifestation of official power, and were often white Europeans.

It is not very difficult to imagine how this notion of a high-powered official could easily change from a force for dispensing justice to a local despot exercising immense power in an arbitrary manner to benefit select interests. These fears of despotism guided the creation of legal systems in which decisions are made on the basis of standard criteria which ensures a measure of consistency in how things are done and allows people the chance to order their affairs to avoid penalties for breaking rules. Thus, we see how the very idea of a codified system is destined to reduce the power of the high-powered District officer. But here comes the catch: What if the ruling authority actually supports the expediency that boundless discretion brings, and is therefore skeptical of a system of rules wherein decisions must be made by processes, after taking evidence and hearing all sides, and with written reasons allowing aggrieved persons the chance to appeal a decision? We find an answer in provisions such as Section 144 where, on the face of it, a procedure is prescribed and discretion is limited by law. But, on closer scrutiny, the scope of discretion is found to be almost limitless, with the law permitting decisions to be made without having any hearing or any evidence, and with no right of appeal.

The colonial rulers were under no misconceptions about such provisions — they knew how a vaguely worded law ensured that executive officers retained the broad discretion that they were accustomed to for getting work done in the colony. To justify this position, they offered an inherently fallacious argument, which painted the high-powered nature of the official as a blessing. Rather than it being a bad thing for these officers to wield vast powers, it was argued that the very nature of their position ensured that they would make good decisions. Thus, as Turner, C.J. of the Madras High Court observed in Sundram Chetti [ILR (1884) 6 Mad 203], "The law [s. 518 of the 1872 Cr.P.C.] in sanctioning this imperfectly controlled power is careful to provide it shall be committed only to Magistrates whose discretion is presumably guaranteed by their responsible position or by selection."   
 
With this in mind, let's take a look at the various iterations of Section 144 and how it conferred this "imperfectly controlled power" upon officers: 

• 1861: Section 62 prescribed that powers could be wielded by "Any Magistrate", where Section 16 defined Magistrate as persons "exercising all or any of the powers of a Magistrate". Thus, many officials empowered under various laws were given these powers, including senior police officers.
• 1872: Section 518 conferred powers upon "a Magistrate of the District, or a Magistrate of a Division of a District, or any Magistrate specifically empowered", which meant that the Local Government or the District Magistrate could vest even a Magistrate of the Third Class could with these vast powers [See, Sections 22 and 23].
• 1882: Section 144 conferred powers upon the same category of officials.
• 1898: Section 144 conferred powers upon the same categories, while also including a Chief Presidency Magistrate to that list of statutorily competent officers.    

While the law explicitly empowered senior officers such as a District Magistrate, it also allowed the Local Government (or the District Magistrate himself) to confer powers upon any other officer. There was no avenue to challenge this delegation of power, which was used quite liberally, as reflected in the legal commentaries and manuals of that time.

The idea that only senior officers must be conferred with wide discretion to prevent misuse is one that we routinely encounter, and have come to accept as a justifiable bulwark against arbitrary exercise of powers. It could certainly act as a check upon how the wide powers under Section 144 were used. But this could hardly be said of a situation where the law went beyond empowering only senior officers and actually allowed governments to confer powers upon other officials including lowly Third Class Magistrates. For such delegatees, it could hardly be argued that their position ensured responsible decisions would be made. And, unfortunately, the latter reflected the truth about Section 144, which became one of the vehicles through which many junior officials came to be vested with awesome powers with the potential to upend normal life. 

Co-existing Spheres of Power: The Police Acts and Public Order

As the Criminal Procedure Code witnessed various iterations over the years, changes were also being made to another key aspect of the legal regime governing public order in the colony: the laws regulating policing. The idea of police personnel having powers to regulate the minutae of daily life in the cities was almost entirely non-existent in the early versions of local police acts, as well as the first "Indian" Police Act of 1861. However, by the first decade of the 20th Century, almost all the local laws (as well as the overarching 1861 statute) had provisions empowering police officials to go ahead and regulate public activity in the streets.

Section 30 of the 1861 Police Act [Page 21 of the pdf] permitted the two highest police officials in a District to pass orders regulating conduct of processions, without conferring any powers to ban them. But if we look at the Madras City Police Act of 1888 (supplementing the Madras District Police Act of 1859), Section 41 of this law expanded the scope of the regulatory powers over assemblies, meetings or processions. Not only were these powers conferred upon Police Commissioners and any officer authorised by them in this regard, but they went beyond regulating assemblies to prohibiting them if police thought such activity was likely to cause a breach of peace. By 1895, Section 30 of the Police Act was also amended to widen the scope of regulation, with Section 30-A inserted permitting police to prohibit meetings or processions under this statute as well. Perhaps the widest encroachment upon daily life was made by the City Police Act of 1902 enacted in Bombay. Here, besides the strict regulation over carrying out processions or assemblies, the police control also extended to "keeping order" in all public places, which could mean almost anything. By 1910, similar provisions had been inserted by inserting Section 39-A in the 1866 Calcutta Suburban Police Act.

The gradual expansion of policing power across various provinces in colonial India definitely hints at a pattern. Unfortunately, I have been unable to locate much discussion on these amendments, besides an excellent piece by Prashant Kidambi on the introduction of the City Police Act, 1902 in Bombay. Kidambi argues that the rise in sectarian and labour violence witnessed in Bombay during the 1890s created a fear of the street and convinced the government of the need for enhanced police powers to regulate these spaces. It is possible that the governments of other provinces were driven by a similar logic. As Kidambi illustrates, the continued tensions in early 20th Century Bombay created a suitable atmosphere for the police to use their new powers to regulate how different sects carried out their business. But at the same time, the police also began to exercise their newfound discretionary powers to engage with the street, and these cases of "public nuisance" became the most reported crimes in the city. The zealousness being at times self-motivated by the officer's desire for more cases, and at times being a reaction to demands made by the elite to clean up the city.

What we find then is a picture of the city where the presence of police loomed large upon the lives of the people, and especially those who had anything to do in the streets. The police had powers to prohibit any acts in their bid to maintain "public order" and prevent potential breaches of the peace — powers remarkably similar to those conferred under Section 144. The statutory approval for delegating these wide powers was yet another aspect where the similarities between the Police Acts and Section 144 were apparent. And, furthermore, very often these powers co-existed in the same officers, as Police Commissioners were often recognised as having all powers of Magistrates by the 1861 Act (and other senior police officers were explicitly conferred with Section 144 powers by the local government).

But there were also differences between these two sets of powers which actually showed how the scope for arbitrariness was in fact wider in the Police Act powers than under Section 144. Unlike Section 144, there was no logic of emergency or expediency limiting the invocation of these powers by the police. Nor did the Police Acts permit for a possibility of hearing before decisions were made. And the decisions of the police were much more difficult to challenge in courts as they were not the outcomes of judicial proceedings. The consequence of all of this was that in the Police Act framework there was a lower level of justification before making decisions that denied exercise of civil rights.

Conclusion: The Subordination of Civil Rights to Public Order
The purpose of this post was to highlight just how large the shadow of executive authority looming over the exercise of any public-oriented activity in India was by the start of the 20th Century. The police had been given wide powers of interfering with public activities in the interests of "public order", and this was in addition to the extremely wide powers conferred upon Magistrates to order persons to abstain from doing any act which was likely to disturb public tranquility. Up till this point, these wide powers had been primarily used for balancing the interests of rival landholders and religious groups. But there was nothing stopping these powers from becoming convenient tools to muzzle the voice of public opinion critical of the government. More on that in the upcoming posts. 

Section 144 Cr.P.C. — Part II: Origins, Use, and the "Rule of Law" (From 1861 till 1901)

(This is Part II in a multi-post series on the Blog. The previous post can be accessed here)

In this post, the agenda is threefold: (i) offering a history of how the text behind what is Section 144 of the Criminal Procedure Code [Cr.P.C.], 1973 evolved during the first thirty years of its existence;(ii) showing the context in which these powers were used by the authorities, which contributed to constant tinkering with the provision itself, and; (iii) introducing what can be called the "Rule of Law is a Myth" argument, which helps us to understand the pernicious nature of Section 144 and similar provisions vesting wide-ranging powers with executive officers.

From 1861 to 1901 — How Today's S. 144 Gradually Took Shape

The years from 1860 to 1900 witnessed truly prolific legislative activity in the British Indian territories. Enthralled by the idea of codification, the Empire treated India (and other colonies) as laboratories to test out these legal concepts, and the result was a sprawling statute-book which had Codes to deal with issues of substantive and procedural law issues across the spheres of criminal law and civil law. The site of codification of the criminal procedures still stands out somewhat amidst all this hectic law-making: there were no less than four substantial amendments of the Cr.P.C. within this time, as the initial Code of 1861 was overhauled in 1872, substantially modified in 1882, and then further updated in 1898. 

The 1861 Code

What we identify as Section 144 today only came to be so recognised from the 1882 Cr.P.C. onwards. Before that, in 1861, the analogous provision was Section 62 [at page 164 in the linked pdf]: 

It shall be lawful for any Magistrate, by a written order, to direct any person to abstain from a certain act, or to take certain order with certain property in his possession, or under his management, whenever such Magistrate shall consider that such direction is likely to prevent, or tends to prevent, obstruction, annoyance, or injury, or risk of obstruction, annoyance, or injury, to any persons lawfully employed, or is likely to prevent, or tends to prevent, danger to human life, health, or safety, or is likely to prevent, or tends to prevent, a riot or an affray. [Emphasis supplied]

Note that the parts highlighted in bold can be found in Section 144 today without the slightest bit of modification. Also take a moment to appreciate the substantial breadth of the power that was conferred upon any Magistrate, and not just judicial magistrates. These officers had the power to direct any person to do or not to do something, not because the officer knew or thought it was necessary to prevent disorder, but rather merely because the Magistrate thought that this direction was likely or tended to achieve such desirable results. 

The 1872 Code and its "Explanations" 

In the 1872 variant of the Code, Section 518 [at page 455 onwards of the linked document] conferred these powers upon Magistrates. While the substance of these powers was identical — the broad language was retained without modification — the 1872 Code had added four Explanations to the text to help apply the provision: 

EXPLANATION I.— This section is intended to provide for cases where a speedy remedy is desirable, and where the delay which would be occasioned by a resort to the procedure contained in section five hundred and twenty-one and the next following sections would, in the opinion of the Magistrate, occasion a greater evil than that suffered by the person upon whom the order was made, or would defeat the intention of this chapter.
EXPLANATION II.— An order may, in cases of emergency or in cases where the circumstances do not admit of the serving of notice, be passed ex parte, and may in all cases be made upon such information as satisfies the Magistrate.
EXPLANATION III.— An order may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.
EXPLANATION IV.— Any Magistrate may recall or alter any order made under this section by himself or by his predecessor in the same office."

Ordinarily, an Explanation is added to a legal provision to help clarify matters, which would suggest that the kinds of issues addressed in the four Explanations had become so important as to demand legislative attention. While Explanations II, III and IV address matters of procedure — on whom an order could be addressed, and whether it could be revoked — Explanation I seems to have been designed to offer a simple Utilitarian calculus to help Magistrates decide whether to intervene. Thus, only where "speedy remedy is desirable" to the extent that the failure to urgently interfere would "occasion a greater evil than that suffered by the person upon whom the order was made, or would defeat the intention of this chapter" were Magistrates required to pass orders under Section 518. In all other cases, the regular procedure was to be followed, contained in Section 521 onwards (corresponds to Section 133 today), where the concerned person had the opportunity to appear before the Magistrate to show that there was no basis for any interference with his civil rights. 

Section 144 as we know it Today 

The 1882 revision of the Code did not substantially alter the contents of the Code but extensively rearranged it, and brought forth a new Chapter XI ("Temporary Orders in Urgent Cases of Nuisance") with a standalone provision: Section 144 [Page 90 onwards of the linked document]. This text was retained in almost identical terms as in the 1898 Code, albeit with some minor, primarily stylistic, modifications [such as sub-clauses being added]:   

In cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate or of any other Magistrate specially empowered by the Local Government or the District Magistrate to act under this section, immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or take certain order with certain property in his possession, or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, or danger to human life, health or safety, or a riot or an affray.
An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.
An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.
Any Magistrate may rescind or alter any order made under this section by himself or any Magistrate subordinate to him or by his predecessor in office.
No order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety; or a likelihood of a riot or an affray, the Local Government, by notification in the official Gazette, otherwise directs. [Emphasis supplied]

The highlighted portions show how, for the first time, a time-limit was introduced for the duration of any order passed by the Magistrate (more on that later). The only other substantial modification that Section 144 seems to have brought about is the removal of Explanation I from the pre-existing statutory scheme, and its incorporation within the main body of the section itself. If Explanations were meant to clarify, this incorporation of an Explanation might suggest the Legislative Council thought it was insufficient to only have this aspect of the law kept as a clarification and instead made it part and parcel of the power itself.

The Exercise of Urgent Powers — Law in Context

Without looking at how this text was being brought to life by the actions of litigants and magistrates, we are left with many blind spots in imagining what this provision meant for ordinary persons, and how it contributed towards achieving its stated goal of preventing nuisance in the colony. Although reported cases from this period are few (more so online than in the archives somewhere), they are still an invaluable source of information for understanding these aforementioned aspects. Accordingly, I tried to survey the available decisions that I could locate (you can access that research, here) and they offered some interesting perspectives.

Firstly, Section 144 was largely used to regulate the exercise of civil rights in this period. From the start, then, we are informed that it was perfectly lawful for Magistrates to pass orders that prohibited persons from engaging in perfectly lawful acts if it was feared that these lawful acts might inspire unlawful ones. So, we find many orders were passed to control disputes between operators of rival hauts (business markets) because there were apprehensions of things spiralling out of control, so much so that these rivalries attracted judicial notice. The other kind of scenario in which these orders were passed concerned potential disputes on religious lines — not only Hindu-Muslim conflicts, but often about different sects of the same religion carrying out processions through the public streets.  

The second perspective pertains to how the local Magistrates went about this task of regulation. This, in turn, contributes to our understanding of why some of the legislative tinkering happened between 1861 to 1898. In their bid to quell the likely disturbances, the Magistrates often passed 144 orders that were for an indefinite duration [Criticised by the Calcutta High Court in Taramoni, 4 Cal LR 309], or were framed in a manner that amounted to passing a permanent injunction against certain acts. This was wholly improper, as the purpose of the provision was to take urgent steps to prevent disorder and not permanently affect the civil rights of persons.

Besides this issue of no temporal limits, it was also common for the High Courts to set aside a Magistrate's order because it was passed without any sufficient basis to justify the need for an urgent intervention under 144. Magistrates seemed wont to pass orders on the basis of their private conversations with men-about-town rather than "evidence" that could be tested in subsequent proceedings. They would wrongly invoke the super-fast preventive procedure of Section 144 even when urgencies and the potential for disorder did not, in fact, exist. This problem can also be seen in matters that affected the maintenance of public order more generally and crops up in cases on binding over persons for keeping the peace.

The third perspective that I'd like to point out is how Magistrates often resorted to using 144 orders as a tool for good governance. For instance, orders were passed directing persons to construct walls that had been damaged. Another kind of direction was to Zamindars (land-holders) directing them to raze huts that had been built on their estate as these were likely to cause "annoyance". And, lastly, I came across a revision preferred against orders passed by the District Magistrate of Jessore, regulating how persons docked their boats and took out their cargo. In none of these cases was there any urgent threat of any nuisance, and all such orders were set aside in revision by the High Courts.     

A Rule of Law or Rule by Law? 

The perspectives offered by these experiences of 144 orders in courts show us how the extremely broad possibilities offered by the text of the law were being narrowed down in practice. If one read the text of these provisions in isolation, the loose phrasing could certainly lead a Magistrate to think that the speedy remedy was desirable enough to direct persons not to crowd docks with their boats so as to prevent risk of obstruction and even injury. But these possibilities were trimmed down by the High Courts, which stressed upon a need for urgency in the likely disorder before any Magistrate took steps under Section 144.

In doing so, the High Courts also stressed that the preventive powers of the Cr.P.C., which went beyond Section 144, ought not to be used too liberally at the risk of becoming engines of oppression. But in the same sentence, the High Courts also bent over backwards to stress just how hard the job of a Magistrate was, and often expressly sympathised with the intentions behind a Magistrate having passed some wide-ranging order completely extinguishing civil rights. The need for a broadly framed Section 144 was repeatedly urged, even on occasions when its wings were being clipped.

If this extremely limited slice of history available to us suggests that Magistrates were happy to use the extraordinary procedures of Section 144 in arbitrary and illegal ways, it is not unreasonable to assume that this was how Magistrates generally exercised their boundless discretion under this law. Thus, the enjoyment of civil rights premised on doing purely innocent acts was, at some level, always at risk of being upended, without hearing or prior notice, by a Magistrate's opinion that exercising one's rights carried a risk of breaching the peace.

Section 144, and other preventive powers vested with District Magistrates, were all part of a statute. This statute detailed how the powers could be used, gave a right of hearing to subjects of potential restrictions, placed a limit on the duration of any such orders, empowered the Magistrate to even recall orders, and also provided (for some time, at least) an appeal / revision process for challenging the exercise of such discretion by Magistrates. These aspects are the hallmarks of a "Rule of Law" which most liberal democracies swear by today. It was also one of the "contributions" that colonial rule of white men sought to bestow upon the black countries to rid them of their oriental despotisms characterised by arbitrary rules reliant upon the whims of the sovereign.

But was this really the Rule of law, or merely the rule by law, where the legal text was drafted so loosely that it could confer the widest possible discretion upon the empowered officials. This idea has been probed by several scholars, including Radhika Singha and Nasser Hussain, who argue that colonial rule merely replaced the oriental despot with the figure of a District Magistrate or some such other executive official, where these officials continued to wield vast unchecked discretion as before. The Emperor had new clothes made out of statutory text. This argument, that the Rule of Law can prove to be a myth when exposed to some scrutiny, helps in appreciating why a provision like Section 144 can pose a serious threat to the exercise of civil rights by persons. Calling something "law" and then prescribing procedures in a statute does not automatically ensure justice or fairness. In fact, it is quite easy to create a shiny but hollow legal system, with bulky codes and meticulous procedures that only kick in much after the damage to one's rights and liberties is already done. 

Summing Up and Next Post
This post covered the history of Section 144. It traced its gradual evolution in the statutory text, and at the same time also located the textual development within the socio-legal contexts of the time. This review hinted at the courts playing some part towards limiting the seemingly boundless scope of the powers conferred by Section 144, when challenges were brought during revision proceedings. But, in many a case, serious damage had already been done — the person was jailed, a business had been irreparably damaged, or a religious procession could no longer be conducted as the auspicious time had passed. That these kinds of orders continued to arise in spite of the High Courts having struck them down in earlier cases offers more suggestive evidence of how difficult it was to effectively curb executive discretion in the field. As long as the statute carried the widely-worded text, Magistrates were keen to explore its limits to help them out of a tough spot. Such reliance upon the extraordinary process of Section 144 meant the enjoyment of civil rights and liberties was forever imperilled by the whims of Magistrates, and any relief by challenging the Magistrate's orders would be of a declaratory and not a substantial sort. This made the colonial regime little better than the oriental despotism that it sought to demonise and displace when it came to some matters of policing and criminal justice.

In the next post, the focus will shift to the period leading up to independence, i.e. from 1900 till 1947. It will seek to demonstrate how the use of Section 144 Cr.P.C. became increasingly political, and will also engage with occasions when issues posed by Section 144 were debated within the Legislative Assembly at the time.