Section 144 CrPC — Part I

(This is the first part of a new multi-part series on the Blog) 

December 19, 2019. Thousands of people took to the streets across several major cities of India. The photographs would later reveal just how diverse the gatherings were: many students, of course, but numerous old men, women and salaried employees who had skipped work for the day. For, or against, what were they speaking out? A large part of the crowd was demonstrating against a recent legislation pushed by the Central Government — the Citizenship Amendment Act 2019. But for many others, the reason to take to the streets was not limited to any single policy or legislation of governments. Instead, the banners on display suggested that these multitudes sacrificed the comforts of a warm house on a cold December morning because they felt that they could no longer remain silent and bear witness to the erosion of their idea of India without any struggle. The purported legislative support for only selected religious groups appeared to be only the latest iteration in a trend of ignoring the plight of other communities across India.

But even before the first persons came together in the public squares, even before they had stepped outside their homes on that morning of December 19, the governments had decided to act. The mere thought of a thousand voices speaking in unison had shaken the foundations of the state apparatus even before the first slogan could be shouted. Thus, on December 18, the police agencies in various parts of India did what they had been doing for almost a century now in the face of organised public demonstrations. In an attempt to maintain (or, in the guise of maintaining) “public tranquility”, they issued an order under Section 144 of the Criminal Procedure Code [“Section 144”], and rendered the citizens’ decision to exercise the freedom to speak as one carrying an indelible risk of violence, disorder, and inconvenience to everyone else who didn’t share their convictions. After all, is not maintaining order and security one of the chief goals of law? Thus, with one stroke of a pen, democracy was swiftly turned against itself, and the gatherings of four or more persons in public were prohibited under pain of prosecution.

This episode prompted an outpouring of conversation and critique on television as well as in the print media, at the heart of which was Section 144. It was a rare occasion when serious questions came to be asked not only about how certain powers were being used by the executive branch, but also about the need and correctness of having such wide-ranging powers in the first place. What also became apparent was that to make sense and effectively critique a provision with a history longer than that of independent India itself needs more space than a newspaper column or an hour-long TV debate. Sadly, though, it appears that there aren't readily available pieces that engage with Section 144 at a historical level, and go beyond merely considering judicial decisions to consider just what role does this provision play in running the Indian state. For instance, there is hardly any mention about how the executive in so many districts of the country relies upon Section 144, that provision designed to deal with public order emergencies, to carry out basic law and order tasks such as making sure CCTV cameras are installed in public spaces and shops. 

This series of posts, then, is an attempt to fill this gap in our appreciation of Section 144, looking at it from the lenses of law, history, and politics. Besides tracing the larger historical arc of this provision, which I think is of value in and of itself, the posts will then try and engage with broader issues of law and order policing and what might be fairer ways of trying to accomplish the objectives of security and the maintenance of public order in a way that does not rely solely upon the threat of prosecution and causes the least restriction of democratic expression. To start things off, the next post will take us back to the start, and discuss the birth of Section 144, the kind of legal logic it followed, and the kind of historical circumstances that compelled its insertion in the criminal codes of colonial India.  

Delhi Police Circulars & Standing Orders for Regulating Protests

The many public demonstrations across the territory of Delhi and also other parts of the country that began last December brought the police powers of regulating such demonstrations into sharp focus. The statutory powers of the police were easily traceable — the Delhi Police Act of 1978, modelled on the old Police Act of 1861 — and confer wide powers to regulate any conduct threatening public order. Additionally, there are broad powers conferred under the Criminal Procedure Code of 1973 itself. 

Together with this, though, there are a host of circulars, standing orders, notifications and regulations that govern not only how the police are supposed to respond to demonstrations and protests, but also the very ability of persons to engage in such acts of speech. And this kind of regulation is well-within the sphere of legality, as things stand today.

Unfortunately, these documents are not easily accessible in the public domain, which is a serious problem that directly undermines the law by denying to persons the ability to educate themselves about what the law says, and then shape their actions accordingly. But, thanks to an RTI request, I was able to get my hands on a few of these circulars. These are, by no means, all the circulars on the subject. For instance I don't know about the contents of Circular No. 10/2018 which is mentioned in a recent Order passed under Section 144 Cr.P.C. (dated 10.01.2020) in respect of regulating any demonstrations in the area around India Gate. Nevertheless, I think these may prove useful, and I have shared them below:

1. Standing Order No. 309: This is the primary document that lays down the system for filing an application to carry out a rally / procession, and is also the source of the rule which limits the number of people at Jantar Mantar to 5,000, and provides that gatherings up to 50,000 be conducted at Ram Lila Maidan, and even larger gatherings be offered space in Burari.

2. Standing Order No. 72: This explains the manner in which police forces are supposed to manage the dispersal of unlawful assemblies, and requires that the least force be utilised. It became prominent in light of the In Re Ramlila Maidan case [(2012) 5 SCC 1].

3. Circular No. 35 of 2011 (dt. 22.06.2011): By way of this Circular, the Delhi Police updated the terms and conditions under which a protest can be organised, on the lines of orders passed by the Supreme Court as well as Delhi High Court. The terms are part of the document.

4. Circular No. 19 of 2012 (dt. 16.03.2012): This Circular communicated the guidelines passed by the Supreme Court in Ramlila Maidan for regulating protests and processions.

5. Circular No. 20 of 2012 (dt. 28.03.2012): The Police shared a new format for filing applications, updating the old one in light of orders in the Ramlila Maidan case. 

6. Memo No. 15181-200 (dt. 13.05.2013): The Memo communicated Guidelines received from the Ministry of Home Affairs (vide letter dated 06.05.2013), which were a reiteration of the earlier orders passed by the Supreme Court in Destruction of Public & Private Properties v. State of A.P. [(2009) 5 SCC 212], calling upon the police to arrange for videography of incidents and making of reports.

Besides these, also see Circular No. 56 of 2011 (dt. 21.12.2011) and Circular No. 34 of 2012. These are a slap on the wrists issued by Police HQ to all districts, for not responding quickly enough to applications filed seeking permission to protest, or for not doing basic follow-up tasks after receiving an application to facilitate processing of the same.  

The purpose of sharing these circulars was twofold. First, to make them available publicly, in order to better appreciate the entire process of protests / demonstrations and their regulation. And second, to push for some serious critical scrutiny of these regulations and ask whether they pass constitutional muster. I hope it helps, and encourages more folks to share resources to help further the conversation.