(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:
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
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 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.
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