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.