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.