Section 144 Cr.P.C. — Part VII: Same Old, Same Old? (1950 to 1960)

(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

Section 144 Cr.P.C. — Part VI: Continuity and Change (1941 to 1950)

(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. 

Guest Post: A Minor Issue or a Fatal Flaw? Reading Amended Section 176 Cr.P.C.

(I am proud to host this guest post by Ms. Pawani Mathur, an advocate practising law in New Delhi)

I had an opportunity to attend a conference on Torture, organised by the Working Group on Human Rights of the United Nations and other prominent groups in Siri Fort, New Delhi. The conference threw up an important issue in Section 176 of India’s Code of Criminal Procedure 1973 [Cr.P.C.] that seems to have crept in after the Amendment Act of 2005 (ultimately brought into force in 2006). That provision, to remind readers, is one that details the procedure to be followed for conducting ‘inquests’ on corpses to determine the cause of death, where the person died in police custody. 

The issue raised at the conference was that in this context of deaths due to suspected police violence in custody, the Indian statutory framework is still permitting inquests to be conducted by possibly biased police officers and Executive Magistrates, rather than facially neutral Judicial Magistrates. This short post examines the validity of the criticism. 

Section 176 Cr.P.C. – Before and After the Amendments

As mentioned above, the Cr.P.C. requires authorities to conduct inquests to determine the cause of death. As per Section 174 Cr.P.C., it is the police who normally conduct inquests. However, for certain kinds of deaths the law also empowers a magistrate to conduct the inquest. 

Before the Amendment Act in 2005, Section 176 Cr.P.C. stated many kinds of cases in which a magistrate could conduct inquests. For none of these cases did the magistrate replace the police power to conduct an inquest, importantly. Further, these inquests could be conducted by both Executive and Judicial Magistrates alike.

As per the Lok Sabha Debates, the need to amend this section was felt to address the growing crisis of custodial torture and rape. The Amendment Act thus changed this regime dramatically by creating a category of cases where an inquest must be conducted by Judicial Magistrates. Section 176(1A) Cr.P.C., labelled as “one of the most important things” done by the Amendment Act, lists two such cases, namely: (i) custodial deaths or disappearances of any person, (ii) custodial rape. It stated that for these cases, “in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial or Metropolitan Magistrate”. The reason is not hard to imagine. If a case involves suspected offences by police, any inquiry into done by other police officers would suffer from doubts of bias and prejudice. Since Executive Magistrates are part of the Executive Branch – and often police officers – the same issues arise in any inquiries conducted by them in such kinds of cases involving custodial violence.

Bogged by Internal Contradictions?

We know what Section 176(1A) Cr.P.C. says and can now appreciate the issue raised at the start of the post. For this purpose, it is necessary to consider Section 176(5) Cr.P.C.: 

“The Judicial Magistrate or the Metropolitan magistrate or Executive Magistrate or police officer holding an inquiry or investigation, as the case may be, under Sub-section (1A) shall, within twenty-four hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing.]” (Emphasis supplied)

If the inquest under Section 176(1A) must be conducted by Judicial Magistrates / Metropolitan Magistrates, why is Section 176(5) talking about police officers and Executive Magistrates?

I could not find any decisions directly on the point. In its celebrated decision of PUCL v. State of Maharashtra [(2014) 10 SCC 635], the Supreme Court says nothing about this issue. Some High Court decisions did discuss Section 176(1A), and assumed that the correct approach was what is only stated in Section 176(1A), without noticing its contradiction with what is stated in Section 176(5) in the classes of cases mentioned therein [See, e.g., State of Gujarat and Anr. vs. Union of India (UOI) and Ors, MANU/GJ/0506/2010 (Gujarat High Court); A.P. Civil Liberties Committee (APCLC) and Ors. v. Government of A.P. and Ors., MANU/AP/0031/2009 (Andhra Pradesh High Court)]. Since these discussions are obiter dicta and not binding, it means the question is potentially still an open one. 

The National Human Rights Commission is aware of the issue, though. It issued a clarificatory notification on how to interpret Section 176(1A) as far back as 2013. Problematically, it created a new test that is nowhere in the provision itself, stating that an inquiry by a Judicial Magistrate / Metropolitan Magistrate is required only “in those cases of custodial death where there is reasonable suspicion of foul-play or well-founded allegation of commission of offence”. For all other cases, the inquiry could be conducted by Executive Magistrates as well as police officers. 

Conclusion – A Need for Clarity

This post highlighted how there is clearly an open issue in how to interpret Section 176(1A) Cr.P.C. I am not arguing for any particular interpretation of a conjoint reading of clauses (1A) and (5). The point of writing this is only to bring out this contradiction and argue that this is a question of significant importance for the courts to decide on. 

By all accounts, Parliament inserted that provision to create a new class of cases where an inquiry by Judicial Magistrates was mandatory. While I have not argued in favour of any view as being the correct one, it seems that this method of undermining Section 176(1A) is probably not it. 

Section 176 is by no means a sexy topic like many others that criminal law has, which makes it such a staple for news headlines. Yet, inquests are perhaps the single most important set of legal proceedings that help unearth the truth in the worst kinds of cases – where the authority designed to help the people ends up hurting them instead. By clarifying Section 176 Cr.P.C. to ensure that India’s legal regime on inquests is as fair and transparent as possible, the system will help to reinforce accountability where it matters most: in cases of life and death.