Thursday, March 16, 2023

Section 144 Cr.P.C. — Part IX: From Emergency to Everyday, the Silent Transformations of Section 144

(This is the final post in a multi-part series on Section 144. The previous posts can be accessed here)

The first post in this series covering Section 144 of the Criminal Procedure Code 1973 [Cr.P.C.] came more than two years ago. In a change for this blog, the long time it has taken to reach this series' climax is not due to my indolence alone, but other circumstances, such as a pending research project into the on-ground workings of Section 144 that has only now achieved fruition. With this final piece of the puzzle in place, we can complete the chronicling of this most extraordinary of provisions, turning our attention to the last fifty years of its operation. Incidentally, this is perhaps the only period during our charting of the history behind Section 144 when the new Code of 1973 has been in operation.

Recap

Considering the long delay, a brief recap is in order. We had reached the passing of the new Code and the enactment of Section 144 as we know it today. This had come on the back of a momentous decade for the law in question, bookended by two decisions of the Supreme Court carrying enormous importance even today for all issues pertaining to the legality of Section 144 (and, arguably, emergency powers in general). These were Babulal Parate [AIR 1961 SC 884] delivered in 1961, and Madhu Limaye [AIR 1971 SC 2486] delivered in 1970.

The result in both of these had been to overwhelmingly back the conferral of broad, nearly-unfettered, powers with the 'boots-on-the-ground' police to deal with emergency situations. Whatever risks such a position entailed was to be contained by way of robust procedural safeguards — something which the Supreme Court thought that Section 144 did have, which convinced Parliament to retain the same set of safeguards when it passed the 1973 Code.

What were these safeguards? The requirement to record proper reasons and detail the circumstances which require exercise of such powers; the existence of a time-limit on the life of an order (two months), which could only be extended up to six months by the government; and, the ability to contest and seek a review of orders before the issuing authority, as well as challenge them before a superior court. 

Groundhog Days — Litigating Section 144 post the 1970s

Once two Constitution Benches had conferred their seal of approval on Section 144, and Parliament had decided to refrain from disturbing it as well, it was pretty much game-over for hopes of challenging the clause in court. Which is why the subsequent litigation on the clause has had a feeling of Groundhog Day, but without the happy-ending where the protagonist what he had to do differently to come out of the rut. 

Each decently-big litigation since Madhu Limaye seems to play out along the same script of courts coming down on the authorities not adhering to the procedural safeguards and to the same outcome of the petitioners securing a meaningless victory for the damage to civil liberties (in the form of banning a march, etc.) was already done. In fact, one might say that most of the big litigation was not on Section 144 at all, but where 144 arose as an incidental issue; merely the preferred bludgeoning instrument that was taken by the state while dealing with fundamental rights. 

Good examples of this being Gulam Abbas [(1982) 1 SCC 71] and Acharya Jagdishwaranand [(1983) 4 SCC 522], where the main issue was the enjoyment and exercise of the fundamental rights under Article 25 which had been curtailed by using Section 144. Or, more recently, Anuradha Bhasin [(2020 3 SCC 637] which concerned the right to access the internet which had been curtailed by using Section 144. In all of these litigations, the Supreme Court questioned (to varying degrees) the propriety of how Section 144 had been used and either expressly or implicitly acknowledged its misuse. Yet, in each of these, the rights in question had been long-lost by the time these pronouncements were delivered.

Subterranean Shifts — From Emergency to the Everyday 

This is the kind of story which broadly presents itself if we focus on individual cases at the Supreme Court. If we take a step back and look at these cases across a longer arc of history, say a fifty-year arc, and include the High Courts in our field of view, then some trends become noticeable that a case-by-case approach could not reveal. Two of these are of special importance.

First, in a variety of contexts one can see that Section 144 orders acquire a semi-permanent existence. The concerned authorities are simply re-issuing prohibitory orders at the expiry of the two-month period to make a mockery out of the time-limits which were at the heart of the clause. For instance, in Acharya Jagdishwaranand, the concerned authorities issued repetitive orders under Section 144 for practically four years between 1979 and 1982 preventing the Anand Margis from carrying out processions on the grounds of perceived disturbances to public order. Or, more recently in Bano Bee [WP No. 5000/2010 decided on 31.05.2011] where the repeated issuance of Section 144 orders in parts of Delhi was assailed but ultimately avoided scrutiny as the Delhi Police admitted to engaging in this practice but undertook to discontinue it, and issue orders when the need arose.

Second, the authorities had come to rely upon Section 144 as a tool for regulating daily life, either by issuing orders that imposed positive obligations upon people to actively take steps, or donning the hat of the morality police by banning activities which were otherwise not illegal. A good example of this being a recent judgment by the Delhi High Court in State v. Bhanwar Singh [Crl. L.P. 508/2017, decided on 12.10.2017]. This was a leave to appeal filed by the State challenging the acquittal of Bhanwar Singh, who had been prosecuted for failing to comply with a Section 144 Order. What was the directive? The Delhi Police (through DCP South) had issued a Section 144 order directing all landlords to verify the details of tenants, and an inspection revealed that Bhanwar Singh had failed to comply with this. 

History would have shown us that such positive obligations were, and still are, outside the scope of Section 144 which can be used to impose negative covenants and not positive obligations. But the Trial Court was not required to go into this issue, and acquitted Bhanwar Singh on the simple ground that the order was illegal being the sixth successive order passed issuing the same directions. 

The High Court did not interfere with this acquittal, dismissing the petition seeking leave to appeal, but what is pertinent here is the state's argument — the order was issued "keeping in view the threat raised by terrorists seeking residence in the capital" and that the Supreme Court's decision was outdated in an era "where the country faces a threat due to terrorist activities" making such successive orders a necessity. The submission could not be more blunt than this. The very procedural safeguards which the Supreme Court had considered the mainstay of Section 144's legality were being contended as outdated, by the State no less. 

Perhaps, the time had come for a serious conversation about change?  

Making a Case for Change — Studying the use of Section 144 Today

Looking at cases could only get one so far. Which is where I turned to searching for Section 144 orders in the public domain. It did not yield much by way of results, even though these are orders which, by design, are meant to be widely published whenever the public at large is affected. As luck would have it, I got the opportunity to be part of a fantastic team comprising of Vrinda Bhandari, Natasha Maheshwari, Madhav Aggarwal to research on the issue and pull out these orders to study them, backed by a grant by the Thakur Foundation. The result of this long-drawn effort is finally ready in the form a Report, titled 'The Use and Misuse of Section 144 CrPC' which we have uploaded on to SSRN.

The Report is one of the few efforts looking at Section 144 orders at the ground-level and not by studying judicial decisions. Using the Right to Information Act, we made efforts to study the provision's use in Delhi for the duration of one year (2021), which meant studying over 5000 orders (yes, 5000, in a year). And this was not even the full archive. In a bid to ensure engagement, the Report itself carries a sampling of orders, with our full archive of orders separately available on Justice Hub

As I am naturally interested in getting people to read the Report, I will refrain from summarising it here beyond giving the one broad conclusion that we drew from the work, which is that Section 144 has been fundamentally transformed in its usage by the police today from being seen as an Emergency power to deal with processions or sudden threats to public order, to a means for micro-level governance on a host of issues ranging from women's safety, to kite-flying, and the running of business traditionally seen as 'suspect'. Rather than deal with a perceived and identifiable threat to public order—say, a call for a march to Parliament—Section 144 is now being used to deal with the unidentified and ever-present risks to law and order that exist by the mere virtue of modern city-life—unidentified tenants being 'criminal elements'. 

It is a fascinating turn from a sociological and criminological perspective which merits deep and serious engagement. From the legal perspective, it confirms that the core premise of Section 144's usage, at least in New Delhi, has been founded contrary to constitutional logic insofar as the emergency power has been normalised into an everyday tool for enforcing police powers and criminalising an entire citywide population by creating obligations that can't ever be fully complied with. It confirms that the premise of procedural safeguards ensuring that the use of Section 144 remains within limits has been completely and utterly demolished over time, with the State justifying its refusal to adhere to the same. 

We are witnessing the natural consequence of retaining a law with language that was always designed to cast an infinitely-wide net to repress civil liberties even after, at least in theory, bidding goodbye to such policies. Rather than condemn the clause to history, both Parliament and the Supreme Court decided to retain the entire regime of Section 144 lock, stock, and barrel, but now sought to teach its users to use the same powers but with a mindset that protected civil rights and liberties. And, whenever push came to shove, both Parliament and the Courts twisted themselves into knots in emphasising the importance of these rights and liberties whilst unequivocally supporting the retention of unbridled power with the executive to interfere with them for securing a mirage of public order. It could not be more evident that this balancing act has spectacularly failed. 

Life in India has travelled a great distance from 1861, when the first iteration of Section 144 came on the statute books. In another sense, though, what the history of this provision shows us (and it is surely not alone in telling this tale) that life has travelled hardly any distance at all. The fragile sense of peace remains built upon a mountain of coercive power which can be exercised at whim without any real justification potentially against anyone in interests of the greater good / public safety / public order / law and order / you name it. Of course, in practice, it is only to be used against the usual suspects.   

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