(This is the sixth post in a multi-part series. The earlier posts can be accessed here)
The two previous posts in this series charted the slow but determined emergence of Section 144, in what was the Criminal Procedure Code of 1898, as an integral part of the toolkit of repressive laws that was used by administrators to mercilessly stifle political activity across British India. This post turns our attention to the decade of Indian independence, and of course, the adoption of India's Constitution.
Crisis, Section 144, and the Public Order Acts
If one were to go along with the conventional representation of 1947 being the high-point in a long struggle for Indian independence, then the years leading up to it were nothing short of a maddening crescendo in terms of ordinary life. The Second World War consumed the world till 1945, and for India this meant the almost full-scale devolution of powers to executive officials under wartime legislation. During which time the country also saw the Quit India Movement and its bloody suppression by the colonial administration.
I mentioned in the introduction that Section 144, Cr.P.C. had come to be identified as part of a repressive laws toolkit. However, as I had reflected in the previous post as well, for many legislators this blackballing of Section 144, Cr.P.C. masked a deep underlying consensus between the colonial and nationalist leaders about the utility of this provision. A legislative measure conferring wide powers on the executive to efficiently control public order emergencies was seen as a necessary part of ordinary law.
Thus, while the nationalist legislators certainly tried hard to carve out exceptions for political acts from within the scope of this provision, at the same time, they remained supporters of Section 144, Cr.P.C., as long as it was "properly used". What might this mean? For instance, using Section 144 promptly to quell any communal riots. Considering how rapidly communal violence escalated in several parts of India during this decade, it helps explain why there is a surprising absence of critical commentary (and appellate court litigation on public order issues) around Section 144 in the archive for this period.
If anything, the withdrawal of wartime legislation, coupled with rising communal violence, labour agitation, and the political activity pressing for independence, made many administrators skeptical about the sufficiency of ordinary laws such as Section 144 to deal with the problem at hand. This prompted a wave of special, province-level ordinances in 1946, which were soon followed by statutes in 1947, such as the "Assam Maintenance of Public Order Act".
Not only did the statutes have similar names [almost all of them were the "(Insert) Maintenance of Public Order Act"] but they were also very similar in terms of content: wide-ranging powers were conferred upon the executive to deal with all sorts of public order problems with minimal judicial review. Thus, towards the maintenance of public order, executive officials had been conferred with powers for preventive detention, externment (ordering a person to leave an area for a specified period of time), imposition of collective fines and, of course, prohibitory orders akin to Section 144.
Independence, Public Order, and the Constitution
On June 26, 1947, the Chief Commissioner of Delhi passed Order No. F.2(16)47-R&J, whereby he extended the existing Section 144 Orders "prohibiting all meetings of ten or more persons and all kinds of audible or visible demonstrations in any public street or place within the area of New Delhi" for a further period of two months.
Thus, underneath the fiery inspiration of Pandit Nehru's speech which promised freedom at the stroke of the midnight hour, there lay the cold legality of a Section 144 order. It lay there, waiting, as India joyously celebrated independence. But it was not long before that Section 144 and the rest of the repressive laws toolkit swiftly came to the fore to remind all Indians just how limited our newfound freedom was going to be.
Indeed, while communal tensions remained a major overt reason for retaining the untrammelled executive powers conferred by the Public Order Acts, these powers also came to be unscrupulously used by the new nationalist governments in the years following independence to quell any political opposition and labour agitations, and Section 144 orders remained in force for several months at a time in various places. All of this, of course, led to fierce litigation. But since most of it was concerning the preventive detention aspects of the Public Order Acts I have refrained from engaging with it in great detail here.
Only rarely does one get a sense of this turmoil while reading the proceedings of the Constituent Assembly, which worked tirelessly during this time. But what was unsaid in the Assembly itself can be heard loudly in the text of the document that it authored. Yes, there were fundamental rights guaranteed by the Constitution. But the civil liberties that were ardently fought for now came with many fetters, in the form of explicit restrictions to fundamental freedoms and the rejection of the Due Process Clause, which gave a renewed lease of life to many loathsome colonial laws as well most parts of the Public Order Acts.
Thus, in his Presidential Address before the Indian Civil Liberties' Conference in July 1949, Justice (retd.) P.R. Das lamented that
This, then is the position in India today. We have no protection against tyrannical laws; we have no protection against the arbitrariness of the Executive Government. The Constitution has deliberately provided for "executive justice" and not for "rule of law" ... We have the same Police Raj; orders under Section 144, Code of Criminal Procedure, continue to be made; and lathi charges have not been stopped.
Continuity and Change
India's founding moment has attracted considerable scholarly attention from all quarters of late. Some argue that the adoption of a Constitution and recognition of universal suffrage marked a transformative moment where people became citizens from being subjects, and the country shifting to a governance of justification. Another important conversation has been around the idea of colonial continuities, which in some measure interrogates whether this transfer of power was really transformative. The Public Order Acts that ruled the realm between 1946 to 1950 offer a fantastic site of inquiry on these lines, and I can only hope that they get the scholarly attention that they deserve.
But what about Section 144, the protagonist of our narrative? The recognition of fundamental freedoms certainly changed the nature of the debate — wrongful or improper use of this power was no longer a mere statutory breach, but a violation of the fundamental rights constitutionally secured to all citizens. However, the history of Section 144 had confirmed just how resilient it was to court cases. Litigation unfolded at a leisurely pace which meant that the prohibitory orders had often expired by the time an order was passed. Only time would tell whether these practical realities would also change in the new climate of independence.
The next post will look more closely at the first decade of independence and its impact on Section 144. It will discuss some interesting legislative developments that took place, as well the first constitutional challenges levelled against the provision in court.