(This post is the seventh part in a multi-post series. For previous posts, see here)
A long time ago, this multi-part series studying the long historical arc of Section 144 Cr.P.C. had reached the decade leading up to India's independence and the coming into force of the Constitution of 1950. This post looks at the decade that followed: 1950 to 1960.
Recap, and Setting the Scene
By the early 1920's, Section 144 had come to be increasingly identified as a tool to curb political speech. By the end of the 1930's, it had cemented its place within the repressive laws toolkit that was wielded by the colonial regime, and so became a target for attacks by nationalist members in the imperial legislature. What these legislative debates showed, however, was that beneath the fiery critiques targeting Section 144 as a means for curbing
At the same time, though, sitting in New Delhi was the Constituent Assembly, which sought to redress the balance of power between the state and the citizen in independent India. A key component of this effort was the recognition of fundamental rights and freedoms. The ultimate version of the
So, If a court were to examine it, would Section 144 be saved by being seen as a "reasonable restriction" on the freedom to peaceably assemble, or would it be liable to be struck down as unconstitutional? And about the curbs placed by Section 144 on the freedom of speech and expression? How would that violation be justified, considering that there was no "public order" exception in place? Nobody could know what the changed landscape would mean for Section 144. But we would soon find out.
The Constitutional Challenges
The Bihar Government passed an order on January 6, 1950 under Section 2 of the Bihar Maintenance of Public Order Act 1949, banning one Brajnandan Sharma from entering the districts of Bhirbhum and Manbhum. Sharma's lawyer did not challenge the order immediately, but after the Constitution came into force on January 26, he filed a writ challenging the validity of Section 2 of the Bihar Act. He argued that it placed unconstitutional fetters upon his client's freedom of movement guaranteed by Article 19(1)(d), and ought to be struck down.
A Full Bench of the Patna High Court delivered its decision in Brajnandan Sharma on March 29, 1950 [AIR 1950 Pat 322]. By a 2-1 split verdict, the Court struck down Section 2 of the Bihar Act as being unconstitutional. Both Chief Justice Meredith and Justice Das arrived at this conclusion separately but through a similar route — interpreting the "reasonable" qualifier before any restrictions. Both the Judges held that a constitutional requirement for reasonableness could not be met by laws which permitted infringement of fundamental rights based on the subjective satisfaction of an executive official. There had to be some other, more objective yardstick, to determine the reasonableness of a restriction. Chief Justice Meredith put it plainly: "There can be no presumption that an executive official will always act reasonably. There may be a presumption that he will act bona fide; but that is a different thing."
Take a moment to consider the consequences of this reasoning — all laws which allowed interference with fundamental rights and freedoms merely upon subjective satisfaction of executive officers would all now be under serious jeopardy. Effectively, within three months of the Constitution's coming into force, the entire edifice of nascent India's public order jurisprudence was now at risk of crumbling.
Less than two months later, on May 26, the Indian Supreme Court decided a writ petition filed by Dr. N.B. Khare (President of the All India Hindu Mahasabha) challenging a similar provision in the East Punjab Public Safety Act 1949, under which orders had been passed banning his entry into certain areas [AIR 1950 SC 211]. His petition was dismissed by a 3-2 split verdict, but all five Justices on the Constitution Bench agreed on one point: relying to the subjective satisfaction of an executive official to impose restriction upon enjoyment fundamental rights was not unreasonable per se. Some years later in Virendra [AIR 1957 SC 896], when the Supreme Court upheld the validity of press censorship powers, it waxed eloquent about the necessity for an officer on the ground to have wide discretionary powers to prevent emergent threats to public order. Rather than restrict executive power, the Court sought to focus on procedural safeguards being available for an aggrieved citizen to agitate her grievance with the decision. Thus, the Supreme Court gave its imprimatur to a system where the injury to civil rights came first and justice could (maybe) follow, rather than support a setup where the infringement of rights could be prevented in the first place.
Section 144 was not directly in issue in either case. However, this issue struck right at the heart of our protagonist. The vesting of wide-ranging powers with executive officers to upend civil rights when they thought it was necessary in the interests of public order etc. was how Section 144 worked, and history bore witness to just how often that assessment had proven wrong. Making it harder for an officer to take that step would, at least in theory, work to reduce safeguard civil rights.
There were several challenges to Section 144 before various High Courts during this decade. Some cases challenged the validity of the provision itself while most others sought to challenge specific orders on the anvil of Article 19. Considering the fact that public order was a clear restriction to the freedoms of movement, assembly and association since the Constitution's inception (and to the freedom of speech by 1951), and that by May 1950 the Supreme Court had saved executive discretion, It is unsurprising to note that none of these challenges were successful.
Notable amongst these are two cases. In the Allahabad High Court, the colourful Raj Narain and some of his fellow party-members challenged a 144 order [AIR 1956 All 481]. They did not raise a specific challenge to the validity of the provision itself but the Court considered the issue, and specifically noted that while the core of Section 144 was well within the limits of Article 19 as a whole, the same could not be said of the portions which restricted fundamental freedoms to prevent "annoyance" and "obstruction". In Amrao Singh [ILR (1955) 8 Punj 179], while the petition itself was filed before the First Amendment to the Constitution, it was decided much later and that made the court's job easy. Still, it was noteworthy that the Advocate General submitted that "a part, at least" of Section 144 was good law.
New Parliament, Same Old Outlook?
Several High Court cases challenging Section 144 orders, or the provision itself, were filed by members of the Socialist Party and / or the Praja Socialist Party. These members of the opposition were also leading a charge in parliament against this unjust law. Socialist Party members who were part of the Parliamentary Committee which examined the mammoth Criminal Procedure Amendment Bill of 1954 issued a strong minute of dissent criticising the legislation for not doing anything about Section 144 and other similar clauses which conferred arbitrary power in the hands of magistrates.
There were also specific bills moved by these members seeking a repeal of Section 144. However, again, the main focus was political speech and alleged misuse of the provisions to favour the Congress party, and only a feeble attack was mounted against the very power itself. To a reader, the parallels between the kind of rhetoric on display in debates during March - April 1958 when a Bill moved by Jagdish Awasthi was discussed, with the debates during the 1930s when Messrs Rangachariar , Gaya Prasad Singh, and Satyamurti were seeking to introduce Bills to repeal the law. Indeed, the parallels appear most striking when we read the stance taken by the Minister of State for Home Affairs on April 5, 1958. B.N. Datar argued thus:
"My submission to this House is that we have to look at this question form a practical and realistic point of view. If an administration is to be carried on - if a civilised administration is to be carried on - and if threats to law and order in a particular part of the country are there, then Government has got to use this particular Section with a view to prevent the creation of anarchy. ... You will find that in so far as this section is concerned, it is one of the most important sections, one of the most beneficial sections, in the sense that harm is prevented, danger is prevented, and proper action will have the effect of putting down all elements which are working for disorder. ... [T]he primary duty of a Government, whatever might be the type of Government ... is to maintain law and order. ... Therefore, you will have to look at this question from the larger point of view and then you will be satisfied that the provisions of section 144 are of a salutary kind." [Emphasis supplied]
B.N. Datar made it plain, then, that is government was no different from any other, arguably including the colonial one, and the primary duty for all these governments was to maintain law and order. Towards that end, Section 144 with its wide-ranging scope that allowed infringing a citizen's fundamental rights and freedoms on the subjective satisfaction of one officer, on grounds that are as vague as maintenance of public tranquility and the prevention of annoyance, was not only necessary but
Conclusion
This post suggested that there was, at the start of the decade, cause for optimism when it came to the relationship between the state and a citizen. Of course a government would want more power — B.N. Datar tells it like it is. But in a country with a Constitution designed to curb state oppression, reasonable restrictions upon the enjoyment of fundamental rights could not be reduced to the arbitrary will of a single officer. It was, really, as simple as that.
Then, in May 1950, the Supreme Court of India made a choice which reduced the fetters upon executive discretion. In doing so, it upheld the edifice upon which a public order jurisprudence developed over centuries of colonial rule had been built, and was now serving a nascent independent Indian state. That choice is one that we continue to live with today, even as India has completed more than seven decades of its independence. As a result, executive officials continue to retain truly awesome discretionary powers—which they wield with minimal oversight—by which the enjoyment of basic civil rights can be suspended for weeks or months on end. All that an aggrieved citizen can do is to challenge this exercise before a court which is likely to render a decision long after the damage has been done.
I will take some liberties here, and end with Kurtz's famous words from
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