Section 144 Cr.P.C. — Part VIII: Politicians, Protests, and the Court (1961 - 1970)

(This is the eighth part in a multi-part series on the Blog. Earlier posts in the series can be accessed here)

The previous instalments in this series on Section 144 Cr.P.C. have attempted to trace a history that goes beyond the courtroom and looks at the provision more holistically by turning to the broader context. Perhaps this is nowhere more important than the decade from 1961 to 1970.

The Court

1961 and 1970; at both ends of this tumultuous decade stand two decisions by the Supreme Court which continue to tower over the legal discourse on not only Section 144 Cr.P.C. but also exercise of free speech generally in the republic of India. A bench of Five Justices delivered the verdict in Babulal Parate on January 12, 1961, and seven Justices delivered opinions in Madhu Limaye on October 28, 1970.

The wheels of justice turned very slowly for Babulal Parate, who was part of a set of mill-workers agitating in Nagpur in January of 1956. There was a scuffle between two sets of groups which led to orders under Section 144 Cr.P.C. Parate was arrested for violating these orders (besides being charged for other crimes), and after having been denied bail by the trial court and High Court, he had petitioned the Supreme Court in 1956 itself, only for the petition to be decided more than four years later. 

What had Parate argued? Besides challenging the specific order on its own terms, there were broader points raised assailing the foundation of Section 144:

"(1)That s. 144 of the Code of Criminal Procedure in so far as it relates to placing of restrictions on freedom of speech and freedom of assembly confers very wide powers on the District Magistrate and certain other magistrates and thus places unreasonable restrictions on the rights guaranteed under Art. 19(1)(a) and (b) of the Constitution. 

(2) The District Magistrate constitutes the whole legal machinery and the only check for control on his powers is by way of a petition to him to modify or rescind the order, that thus the District Magistrate becomes "a judge in his own cause" - presumably, what learned counsel means is a judge with regard to his own decision-and so the remedy afforded by the section is illusory. Further the remedy by way of a revision application before the High Court against the order of the District Magistrate is also illusory and thus in effect there can be no judicial review of his order in the proper sense of that expression. 

(3) Section 144 adopts "likelihood" or "tendency" as tests for judging criminality ; the test of determining the criminality in advance is unreasonable. 

(4) Section 144 substitutes suppression of lawful activity or right for the duty of public authorities to maintain order."

The judgment in Babulal Parate is extremely important for the manner in which it read Article 19(2) and the scope of reasonable restrictions "in the interests of" a specific purpose, and it has been studied comprehensively on this count in the past. Here, I am more interested in what the Court thought of Section 144. The broad conferral of powers was not unreasonable, rather, it was necessary (reiterating the same logic regarding sponsored in Virendra while upholding press censorship laws). At multiple places the Court insists upon reminding us that while 144 might confer wide powers, these "can be exercised only in an emergency" and so "it would be wrong to regard that power as being unlimited or untrammelled" since the power was only temporary in nature. In any case, it held "no one has a right to cause 'obstruction, annoyance or injury etc.' to anyone". And, of course, mere possibility of misuse of such powers could not justify declaring it unconstitutional. 

Not only was Section 144's broad conferral of powers reasonable, this was made more reasonable by the remedies afforded to an aggrieved person, which were far from "illusory" in the eyes of the Supreme Court: "since the propriety of the order is open to challenge it cannot be said that by reason of wide amplitude of the power which s. 144 confers on certain magistrates it places unreasonable restrictions on certain fundamental rights." To argument that this right to challenge orders was illusory was not good, as it "would equally apply to an application for review made in a civil proceeding", as if these were similarly placed proceedings. Thus, the necessity element in preventing emergencies, coupled with a procedural reasonableness secured by way of (i) recording facts (ii) securing a right to impugn such orders, made Section 144 wholly conscionable to the constitutional framework of the republic.

A decade later, the edifice of Babulal Parate and the validity of Section 144 (and other sections on preventive powers) were challenged by sitting parliamentarians who had been obstructed from carrying out protests. Justice moved swifter in this instance: the petitions were placed before seven Justices in May of 1970, who gave their verdict in September, followed by reasons given in October. The seven Justices reiterated what had been said at the start of the decade: "properly understood", these provisions of the law were "not in excess of the limits laid down in the Constitution". The same two-act play was re-enacted — the necessity of broad emergency powers could not be questioned, and Section 144 sweetened this bitter pill by providing robust procedural safeguards, placing it firmly within the constitutional fold. The Court made some stern remarks about the kind of conduct that it thought 144 was designed to prevent: 

"[T] key-note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must fall within the restrictions which the Constitution itself visualises as permissible in the, interest of public order, or in the interest of the general public."

Of Protests and Politicians 

Babulal Parate and Madhu Limaye were at two ends of what was a very tumultuous decade for the republic. By October of 1962, India found itself in the middle of a war with China. Though the countries had a ceasefire before the end of the year, the state of emergency that was proclaimed during the war did not. This continued till 1968, with another war (this time with Pakistan) having come in between. Together with unprecedented issues of national security, the 1960's also saw heightened tensions on various other issues; some of national importance (the creation of new states and the rise of secessionist movements), but far more regular were demonstrations for basic issues of food, employment, and in some cases religious beliefs. 

Religious beliefs were central to the demonstrations organised in New Delhi in 1966 as part of the anti-cow slaughter movement. Groups from various parts of the country had been coming to the capital. On November 7, a demonstration was led to the gates of parliament, and after a set of fiery speeches the demonstrations took a violent turn in the afternoon, with plush parts of the city seeing hitherto unheard of scenes of arson and rioting. By 530 PM that evening (see e-page 149), the-then Home Minister made a speech regarding the "shocking events of this afternoon". After giving a brief summary of the events thus far, the Minister said:

"Today's deplorable happenings underline the great danger from violence to the fabric of orderly society. It is clear that the grim situation has been brought about by sustained instigation to violence. We are taking steps to put down firmly this lawlessness and vandalism. Government have decided not to allow processions within a sizable distance of Parliament. I am thinking that this might well be up to two miles radius. ..." (Emphasis mine)

Deposing at the proceedings of the Privileges Committee of Parliament on May 3, 1967 the then District Magistrate for Delhi, B.N. Tandon stated that "Section 144 round about parliament is imposed at the request of the Speaker. Earlier it used to remain in force throughout the year around Parliament House. Now we are having it only when the Parliament is in session." This would mean that the Government's decision in 1966 was not about using 144 around parliament but enforcing it more strictly. And, by all accounts, this they enforced strictly hereafter. 

After this, there were many prominent protests in New Delhi — including demonstrations by police officers and government employees in 1967, and political groups agitating the cause of unemployment in 1969 — and none of these groups was allowed near parliament house. As one M.P. put it while making a statement about the unemployment protests on May 12, 1969 (e-page 113), for protestors "parliament has been reduced to the position of a boat club", and while he requested that the ban be lifted as this group was not led by "Naga sanyasis", the demands went unheard. When the protestors tried to come near Parliament, they were forced back, leading yet again to calls for lifting the 144 orders around parliament (May 15, 1969, e-page 104) but to no avail. On July 25, 1969, S.M. Banerjee raised a question in the Lok Sabha asking the government whether any decision had been taken to lift Section 144 from around parliament when it was in session and at least allow demonstrations in the outer precincts. "No such proposal was under consideration of the district authorities" was the reply. The government had actually made its position clear in the previous year itself: Responding to another question regarding lifting 144 around Parliament in the Rajya Sabha on December 4, 1968, the Minister said that while we "recognise the importance of peaceful demonstrations in a democracy, it is equally important that parliament should be able to function in a peaceful manner without any obstruction."

Why is this history important when we talk about the legality of Section 144? Because all of this was happening a stone's throw away from the august halls of justice where seven Justices of the Supreme Court took up the hearings in 1970. The importance of Section 144 to secure public spaces had always been well-known in independent India, but between 1965 to 1969, it had been placed as the cornerstone of public order policing in New Delhi by the government for the areas in and around the Court itself. It was so integral, that by the time the hearings in Madhu Limaye would have been taking place in September 1970, Section 144 orders were perpetually in force across these parts of New Delhi. Would the Court go ahead and remove this cornerstone and imperil its own confines by declaring 144 illegal? Of course not. 

Critiquing the Court

Madhu Limaye upheld the legality of Section 144 on a curious premise — it was valid "if properly applied". By 1970, it was apparent to everyone that the clause was not being properly applied.

The first element in its "proper application" to justify Section 144 was emphasising the transient nature of this power — the broad conferral of power was justified because it was an emergency measure, to be used only temporarily in times of grave need. But what history shows us is that by 1970, the state confirmed the existence of a permanent state of emergency in and around its centres of power, which hollows out this justification based on the fleeting nature of emergency powers. Of course, the Section 144 orders in question in Madhu Limaye were not the ones near the Court and Parliament House. But it is difficult to square this avowed faith in the transient nature of Section 144 when it had become a permanent feature of policing the streets around the Court's own backyard.  

The uncritical incantation by the Supreme Court in 1970 of the second act in Babulal Parate — the robustness of procedural safeguards in 144 — seems even more absurd in hindsight. This is on two counts. First, the Court at this stage was moving beyond the processual basis for securing reasonableness in the infringement of fundamental rights and engaging with the substance of the restriction, but this did not stop the Court from turning a blind eye to the obvious vagueness of some of the text of Section 144 — an issue that had been flagged almost twenty years ago by the Punjab & Haryana High Court. Second, of course, was the practice of passing Section 144 orders and litigating them. Let's look at the first element of recording facts by the magistrate. What did this entail in practice? I can do no better than extract the contents of a 144 order that was in place around Parliament in March, 1967:

"Whereas the area known as Parliament House together with its surrounding localities are busy public places frequented with heavy vehicular and pedestrian traffic when Parliament is in session. 

And whereas unrestricted holding of meetings, processions and demonstrations therein or in their close vicinity are likely to cause danger to human life or safety and a disturbance of the public tranquility; 

And where it is necessary to take speedy measures in this behalf to prevent danger to human life or safety and a disturbance of the public tranquility; 

Now, therefore, in exercise of the powers conferred upon me by section 144 of the Criminal Procedure Code, I, S. C. Vaish, additional district magistrate, Delhi do hereby make this written order prohibiting the holding of any public meeting, procession or demonstration in any public place within the areas specified in the schedule appended to this order without a written permission either from me or the sub-divisional magistrate concerned, which permission if accorded may be subject to such conditions as the said authority may deem fit to impose ..." 

         

All that the order stated is that an official thought that "unrestricted holding of meetings [was] likely to cause danger to human life or safety and a disturbance of the public tranquility" — so the facts were no more than restating the text of Section 144. Which then brings us to the claim that Section 144 is reasonable because it contained processes for challenging orders. The limits of this claim would have been ex facie apparent considering the manner in which "facts" were recorded in Section 144 orders. But if this was not enough for the court, surely it could have taken note of the rising rate of judicial delays at the appellate level itself and the effect such delays had in the context of securing rights of free assembly and popular protests. Where the Court recognised the need for urgent action when it upheld emergency powers, it conveniently ignored how time was equally essential to securing any redressal of grievances for aggrieved persons. This could have been secured in some ways by placing the burden of justification on the government, but the Court rejected this.   

The Aftermath

Babulal Parate and Madhu Limaye contributed to a discourse in which the fulsome text of the law can cloak its routine excesses. "Misuse" and "Abuse" of power, though admitted, were not evidence of faults in the law but only proof of the faults in men. The court did not leave the matter at simply placing the law within the constitutional framework, but went ahead to express its views about the desirability of having such provisions. In doing so it offered a source of support to the government in retaining this provision almost wholesale when a new criminal procedure code was being drafted. The Law Commission in its 41st Report on a new Cr.P.C. sought to remedy the one fault that the Supreme Court had identified with 144 — the absence of time limits when such orders were re-promulgated by state governments — but went no further. 

When the Bill for the new Cr.P.C. was debated in Parliament in September 1973 many members — including a young Atal Bihari Vajpayee — attacked the total retention of a provision so closely linked to colonial oppression in laws for the independent republic. But the Supreme Court's seal of affirmation in 1970 meant that the government could also be sanguine about the validity of the law and pass the buck by characterising the high probability of abuse by virtue of unbounded discretion as being mere possibility of misuse on part of overzealous officers. In the end, all the proposals to amend this were waved away by the Minister with a recitation of that same old formula: "We feel that this provision is very necessary. There are safeguards. The Magistrate has to satisfy himself that a situation exists of a serious nature where orders under this section ought to be passed. I am therefore unable to accept any of the amendments of the Hon. Members."  

And so, Section 144 Cr.P.C. as we know it, came to be.