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.   

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. 

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. 

Section 144 Cr.P.C. — Part V: Combating the Repressive Law (1921 to 1940)

(This is the Fifth post in a multi-part series. Earlier posts can be accessed through here)

The previous post in this series discussed how a growing political consciousness across British India led worried administrators enough to begin to use the law as a means to suppress civil liberties. Section 144 of the Criminal Procedure Code 1898 [Cr.P.C. 1898], a provision largely used up to that point by Magistrates as a means to quell local disturbances between rival groups / factions, began to be used for prohibiting the holding of public meetings, and even banning the entry of persons in an area. This post covers a subsequent period, in which the position of Section 144 as a tool of repression came to be cemented in the eyes of many outside government. Unlike previous posts where the focus was largely on the courts, here we focus on the many battles that were fought over this provision in the Central Legislature of the time, i.e. the Legislative Assembly of India. 

Curbing the "Indiscriminate Use" of Section 144 — The 1923 Amendments

In January 1922, Rao Bahadur Rangachariar moved a Private Member's Bill to amend Sections 107 and 144 of the 1898 Code, with the stated aim being "to prevent the indiscriminate use of Sections 107 and 144 of the Code of Criminal Procedure 1898, in dealing with political agitation." This failed attempt to modify Section 144 (the Bill did not garner sufficient votes to be introduced for debate) was primarily a reaction to the use of this provision by the Government to quell the Non-Cooperation Movement. One gets a sense of the scale of use through Home Department File No. F-2A of 1922, which suggests that over 400 orders had been passed within the United Provinces in 1921 alone. This was part of the set of grievances aired when a Resolution was moved in March 1923 in the newly created Indian Legislative Assembly to condemn the repressive measures adopted to tackle the Non-Cooperation Movement.

Why use Section 144 and not some of the special laws such as the Seditious Meetings Bill, or even the Rowlatt Act, you ask? As I had mentioned in the previous post, the sufficiency of Section 144 to deal with political agitation was cited by legislators themselves who opposed the introduction of the aforesaid special laws. Protests over these special laws did not dissipate, and only added fuel to the political fires that were burning in India around 1919 to 1921. Thus, in an attempt to depoliticise the maintenance of law and order, the Colonial Government returned to that venerable old provision, Section 144, with renewed vigour which soon became a velvet glove concealing the iron fist.  

The 1923 Amendments

We get a window to this history through the lengthy debates in the Indian Legislative Assembly on January 25, 1923. The Assembly was debating the comprehensive Criminal Procedure (Amendment) Bill, and had now turned its attention to the proposals for modifying Section 144. The debates are too lengthy to summarise, and I would urge readers to go through the debates on the clause (which begin on page 27 of the link) to get a sense of the legal issues and the strong feelings that now accompanied any conversations about Section 144. 

Broadly, though, what the proposals sought to achieve were the following:

• Introducing a higher legal threshold for magistrates to take action under Section 144;
• Requiring that evidence be recorded in proceedings under Section 144, not only as a check on the exercise of power but also to enable superior courts to effectively exercise powers of judicial review;   
• Limiting the use of ex parte orders that were passed under Section 144, by either creating a time limit specifically for such orders, or mandatorily requiring magistrates to hear parties within a certain time period;
• Providing more avenues for challenging any Section 144 order by allowing revisions and appeals to be heard by superior courts; 
• Providing special protections for political speech and activity within Section 144 itself.

The changes ultimately made to Section 144 by the 1923 amendments [Section 27 of Act 18 of 1923] did, in some measure, address these issues:

• Section 144(1) was amended. Where earlier powers could be exercised if it was the opinion of a magistrate that speedy prevention was desirable, now the threshold was made similar to that in Section 204 Cr.P.C. for issuing process in a complaint case. Thus, the clause now required a magistrate to determine that there was sufficient ground for proceeding under this section;
• The restriction over challenging Section 144 orders in revision proceedings was lifted;
• A new clause was added, enabling aggrieved persons to petition the magistrate for rescinding / altering an order.  

However, as the next sections demonstrate, the fight to change Section 144 to install legal handbrakes to restrict ex parte orders as well as to protect political speech continued for several years after. But before we proceed further, it is important to flag what was not raised as being problematic in Section 144 during the 1923 debates. First, although some members complained about junior officers having been empowered under Section 144, only one member raised that as an issue. In fact, the Government benches cunningly turned this issue against the Indian members by citing that many junior officers were natives. Second, hardly any sustained attack was made to curb the breadth of Section 144, with the Assembly largely in agreement that the breadth of the provision was necessary to maintain law and order. 

The Many Abortive Legislative Attacks on Section 144

Even before the ink had dried on the 1923 amendments, Mr. A. Rangaswami Iyengar moved a Bill in 1924 to further amend Section 144 of the Code citing "recent events" that had seen the provision being used to impose "all kinds of restrictions on political workers and political propaganda". While positively noting the wide scope of the provision, Iyengar stated that the "extraordinary and indiscriminate applications of the section that have taken place since 1921 on such a large scale for the purpose of suppressing political agitation, is a matter which could not have been foreseen." Thus, he now sought limits on ex-parte orders, special protection for political activity, and that appeals (as opposed to revision petitions) be allowed against Section 144 orders which would make it a rule for proper evidence to be recorded in the first instance.   

The instructions from the Viceroy were clear: Oppose the introduction of the Bill at all stages, for as the Home Member had noted in the file, this Bill "would reduce Section 144 to nothing". But this Bill did not even reach the House for discussion. Undeterred, Iyengar coopted support for the Bill from other members of his party (the Swaraj Party) and moved the Bill again in 1925. Similar legislation was sought to be introduced by several other members as well during this time. However, all of these attempts met the same abortive fate and did not get past the introductory stage. 

The Gaya Prasad Singh Amendments 

One such Private Member Bill did eventually reach the floor of the House. In February 1931, a draft legislation moved by Mr. Gaya Prasad Singh was discussed where he proposed that the Bill be referred to a Select Committee. The focus of this legislation was on the same three issues that were raised in Mr. Iyengar's Bill of 1924. After heated debates which spanned several days, the Assembly passed a motion by a single-vote majority to circulate the draft legislation for public opinion. 

The idea of soliciting public opinion did not mean going to the people on the street, but instead going to ask administrators, judges, government pleaders and lawyers' associations for their opinions. When the opinions came back and the Bill was again taken up for discussion on September 15 of that year, it was apparent that almost all of these sections of society overwhelmingly supported Section 144 in its existing form. The voluminous opinions are collected in the Home Department File No. F-22/174 of 1931 (pages 71-192). 

While it was perhaps understandable that administrators found little fault in the provision, especially since their opinions were sought so soon in the aftermath of the Civil Disobedience Movement, the widespread support for retaining Section 144 in its existing form amongst the lawyers and judges was telling. Even though different High Courts had set aside many orders under Section 144, of a political nature and otherwise, as being contrary to law (and continued to do so hereafter), this was not seen as a blot on the legislation itself or its policy of combining judicial and executive powers within the same official. Rather, these cases were understood as individual errors, for which the existing set of remedies were considered sufficient — remedies that had only recently been expanded upon in 1923.         

As one would expect, in light of the unfavourable public opinion, the proposal to refer the Bill to a Select Committee did not garner the requisite support despite the best efforts for Mr. Gaya Prasad Singh and his sympathisers. 

Rangachariar's Return and The Repressive Laws Bill

In January 1931, Diwan Bahadur Rangachariar (as he now was) had moved another Bill to amend his old foe: Section 144. Unlike the earlier Bills moved by Mr. Iyengar which focused on ex parte orders and political speech, the Diwan's legislation sought curbs on Section 144 orders which curbed acts that were "not wrongful in themselves but are in exercise or enjoyment of the rights of parties". Unfortunately, this Bill was not any more successful than his earlier attempts at limiting the scope of Section 144.

Finally, this brings us to the Repressive Laws Repealing and Amending Bill that was moved by Mr. S. Satyamurti in 1934 but only discussed on the floor of the Assembly on February 20, 1936. As the name suggests, the Bill targeted not just Section 144, but other laws as well such as Section 124-A of the Penal Code which created an offence of "sedition". Crucially, Satyamurti also did not press for a repeal of Section 144, but rather re-agitated the changes initially proposed by Rangachariar and later by Iyengar & Gaya Prasad Singh, among others.  

While Satyamurti's proposals on amending Section 144 were, therefore, not significant as such, what was significant here was his logic behind picking these "Repressive Laws", which had not been as succinctly addressed in earlier debates. According to him, these laws were "all based upon a distrust of the judiciary as such" and "based upon a desire to arm the executive with the exercise of powers which shall not be questioned anywhere, and they all offend against, the elementary canons of the supremacy of law and the freedom of the citizen."     

Alas, the Bill seems to never have been taken up for debate subsequent to this occasion in the years till 1939 (largely due to administrative reasons as gleaned from the Home Department files), when the Legislative Assembly itself was suspended owing to the declaration of the Second World War.

Summing Up

It is impossible, and perhaps unsuitable, to provide a summary of this vast history here. Instead, it is better that I stick to highlighting three aspects that struck me as most significant. 

First, is the limited debate about the scope of Section 144. The debates repeatedly focused upon creating special exemptions for political speech rather than pressing for removing words such as "annoyance", or creating a proportional scheme of responses like the 1931 proposals of Rangachariar. A note must also be made here of how many members refuted any calls to change the language of the provision by citing its vintage, and simply referring to unpredictability as a reason for retaining the exorbitantly vague phrasing of the statute. 

Second, is the resigned acceptance of almost all the members in the Assembly for retaining Section 144 of the Code and their acknowledgment of the need for preventive powers to deal with communal riots and other public order disturbances. Indeed, it was quite normal for the Government benches to cleverly change the scope of the debate and play on this sentiment by mischaracterising the debate and suggesting that the proposed amendments sought to do away with Section 144 altogether. 

Third, is link between Section 144 and the underlying issue of separation of powers. The proposals for greater judicial oversight in this process were rebuffed not only on practical grounds — referring to the delays inherent in the appellate / revision system — but also by emphasising the desirability of a system which combined executive and judicial powers in the same officer for such purposes. A call to retain Section 144 as it was, then, was also a vote of confidence to retain the status quo and not separate judicial functions from executive functions.

Conclusion

I first came across Satyamurti's Repressive Laws Bill in K.G. Kannabiran's Wages of Impunity, where he favourably quoted the extract I've used above and, in his inimitable style, linked it to legislative approaches in independent India. But as this post shows, Satyamurti's efforts at reforming the laws, and more specifically reforming Section 144, were the last in what was a long tradition that began in the aftermath of the Non-Cooperation Movement. At a time when various sectors across society are looking at the provisions of Section 144 with careful scrutiny, it is imperative that the lessons offered by our history do not go ignored.

Guest Post: When Might is Not Right — Police Violence and the Coronavirus Pandemic

(I am pleased to present a guest post by Shukr Usgaokar, a Fourth Year Law Student at the V.M. Salgaocar College of Law, Goa)

Since the imposition of a lockdown by the Central Government and State Governments all across India to contain the spread of Covid-19, several press reports have emerged showcasing brutalities resorted to by the authorities. Violators of the apparent “curfew” have been made to crawl on the street, do sit-ups, suffer lathi-charge, or were simply beaten black and blue by police officers. Some have argued that these are isolated incidents; others have justified such forms of punishment as a necessary-evil if the lockdown is to be effectively implemented to contain the spread of Covid-19. But the question which arises regardless is whether this use of force by the police is permissible under law, and if so, what is the magnitude of force which the law enforcement agencies are entitled to use.

No arrest, no force

Since law and order is a state subject, different states have enacted different statutes to regulate their respective police forces. The Police Act, 1861, is silent on the issue of whether and if so, under what circumstances the police officers are justified in using force while discharging their duties. The only provision that could serve as a source of power is Section 23, which simply provides that it is the duty of police officers to inter alia "detect and bring offenders to justice". 

The Code of Criminal Procedure, 1973 [Cr.P.C.] is more explicit. Section 46(2), entitled “Arrest how made”, states that if the person who is to be arrested forcibly resists the endeavour to arrest him, or attempts to evade arrest, the police officer (or any other person) may use all means necessary to effect arrest. But the corollary of this provision would be that all means necessary, which would include force, are to be used only while making an arrest and that too only when the person who is to be arrested either resists the arrest or attempts to evade it.

Controlling frenzied mobs

Along with investigation of offences, the police in India have the additional function of maintaining law and order which is detailed under the 1973 Cr.P.C. Section 129 of the Cr.P.C., as the title suggests allows a police officer to use force to disperse an assembly. But there are, again, limits on how this power can be used. In Karam Singh v. Hardayal Singh [1979 Cr.L.J 1211], for instance, the Punjab & Haryana High Court culled out the three essential requirements that are ingrained in Section 129:

1. There should be an unlawful assembly with the object of committing violence or an assembly of five or more persons likely to cause a disturbance of public peace.
2. An executive magistrate should order the assembly to disperse.
3. In spite of such orders, the people do not move away.

Thus, arguably, the pith and substance of Section 129 is that force is to be resorted to as a last resort, when the crowd, which in the opinion of the Magistrate is about to disturb public peace, does not disperse, even after it is ordered to do so.

The other source of power is, obviously, Section 144 of the Cr.P.C. read together with Section 188 of the Indian Penal Code. Section 144 orders can be passed by Executive Magistrates (which includes the High-Ranking Police) to prohibit all kinds of conduct for up to 2 months, and then the defiance of such orders is rendered punishable under Section 188 of the Penal Code. Much like Section 129, the use of Section 144 also requires that certain preconditions must exist [Most recently elaborated upon by the Supreme Court in Anuradha Bhasin [Writ Petition (Civil) No. 1091/2019 (Decided on 10.01.2020)]. 

Even if we assume that a valid 144 Order has been passed, it must be established that the existence of such orders is communicated to persons, without which their so-called defiance can't be penalised. But in the present scenario, can it really be said that the orders were explained or communicated in all cases where the police went ahead to forcefully apprehend "violators"? 

How much is too much?

It might be the case that the though the use of force is justified, the quantum of force used is not. Paragraph 4 of The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials which were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba in 1990 enjoins the law enforcement officials to use, as far as possible, non-violent means before resorting to the use of force and firearms. 

Even when the use of force becomes unavoidable, paragraph 5 mandates that they should exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved while minimising damage and injury. The Code of Conduct for the Police in India which was formulated at the Inspector Generals of Police Conference in 1961 has been cited with approval in P. V. Kapoor v. Union of India [1992 Cr.L.J. 128 (Delhi)] and states that while maintaining law and order, the police should as far as practicable use methods of persuasion, advice and warning and when the application of force becomes inevitable, only the absolute minimum required in the circumstances should be used. 

This view was reaffirmed more recently by the Supreme Court in Anita Thakur v. Union of India [(2016) 15 SCC 585] where it was held that even when it is the agitating protesters who start pelting stones on the police, use of excessive force and misuse of power by the police amounts to not only a violation of human rights and human dignity but can give rise to liability in civil and criminal law. 

Even the imposition of Section 144 of the Cr.P.C., as has been done in several districts to enforce the lockdown, cannot serve as a licence for unchecked, violent, police action. Though the Supreme Court in Ramlila Maidan [(2012) 5 SCC 1] upheld the imposition of Section 144, it ordered disciplinary action as well as registration of criminal cases against the all the erring police personnel who had resorted to brick-batting, lathi charge and excessive use of tear gas shells upon the crowd.

It is pertinent to note that the above cases deal with action taken by the police to suppress unruly and violent mobs. It is obvious that an even lesser degree of force would be called for while arresting an offender, which is an investigative function of the police. Useful in this regard is reference to the test laid down by United States Supreme Court in Graham v. Connor [490 US 386] in 1989, which held that the officer’s actions must “objectively reasonable in the light of the facts and circumstances confronting them, without regard to their intent or motivation.”

Wits, not Fists

It is abundantly clear that the conduct of the police authorities has been grossly disproportionate and amounts to a flagrant violation of human rights of those who were at the receiving end of such treatment. As mentioned above, disobeying curfew orders can be an offence under Section 188 of the Penal Code in some cases. But even then, the correct course of action would have been to arrest the curfew violators and release them on bail since that offence is cognizable and bailable and prosecute them according to the law when normalcy is restored, rather than dish out instant justice. 

If video-clippings are to be gone by, the curfew violators were unarmed, did not attempt to evade or resist arrest. However, the police officers have, without giving any warning and in some cases without even making an arrest, mercilessly assaulted the purported offenders. 

It is disheartening to note that authorities are treating a health emergency and humanitarian crisis as if it is a law and order problem. Even if the situation is somehow brought under the purview of section 129 of the Cr.P.C, the actions of the police amount to throwing every pre-requisite to the wind. The rightful conduct would have been to order people to disperse and stay at home, if at all there was a gathering of people, the dispersal of which was necessary to prevent them from contracting the infection.

The police officials must keep in mind that citizens are not violating the curfew because they want to or because they are desirous of getting infected with the Coronavirus. They are compelled to do so in order to buy groceries, medicines and other essentials, particularly when the performance of the home delivery service has been less than satisfactory. 

Under such circumstances, the police authorities ought to show restraint, empathy and a co-operative attitude towards the citizenry rather than indulge in high-handed behaviour and unprovoked hostility. The fact that the curfew is necessary to break the chain of transmission of Covid-19 and has been imposed for the own good of the people is no excuse to use force since as per Graham’s case (supra), the intention of police is immaterial and what must be seen is whether the conduct was objectively reasonable under the circumstances. However, it would become apparent that their conduct has been anything but reasonable with even those who were exempted from the curfew such as doctors, delivery personnel and pedestrians bearing the brunt of the viciousness of the police.

This flies in the face of Article 5 of the Universal Declaration of Human Rights which says that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Referring to this, the Supreme Court in the celebrated case of D. K. Basu v. State of West Bengal [AIR 1997 SC 610] held that expression "life or personal liberty" in Article 21 includes the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries.

Way back in 1981, Justice V. R. Krishna Iyer commented that “Police rely more on fists than on wits, on torture more than on culture…Nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights”. Nearly 40 years later, it would appear that not much has changed.

Section 144 Cr.P.C. — Part IV: Public Order and Political Agitation (1901 to 1920)

(This is the Fourth Post in a series on the Blog. Previous posts can be accessed here)

The previous post expanded upon the officers who dealt with the powers conferred under what, by 1898, was Section 144 of the Criminal Procedure Code [Cr.P.C.]. The post also elaborated upon the expansion of such powers by the enactment of new police legislation, or the amendment of existing laws to empower police to address public order problems. Before that, we had begun drawing a long historical arc to see the evolution of Section 144, which is at the heart of public order policing in India today. This post comes back to that effort, and sheds light on the period from 1901 to 1920. 

Judicial Decisions: A Skewed Archive

The reported judicial decisions from 1861 to 1901 were few, but nevertheless, significant. The cases showed how the legislators at that point in British India were keenly tuned into how the statutes were being applied. This litigation experience was useful feedback for the legislators, who then amended the law to rectify whatever defects had been made apparent. A good example of this was the addition of a time-limit on the duration of any orders under Section 144. Where no such temporal limits were initially present, the law was amended in 1872 after courts stressed upon the need for such a limit to the powers conferred by this provision. 

At the same time, the litigation history of Section 144 also helped give an idea of the social context in which the provision was being used. The few reported decisions available suggested that one of the main uses of Section 144 was to help keep the peace between rival groups — be it religious sects, landlords, or factions in a village. At the same time, a few stray decisions had Magistrates using this provision as a tool for good governance — by regulating how boats could be docked at the harbour, say — and such administrative usage of the provision was strongly deprecated by the High Courts.

I've added details of the reported decisions for the period from 1901 to 1920 to the Google Sheet, this time including references to cases under the Police Act. It would appear that the the most common litigation in the High Courts around this provision continued to be that between rival groups seeking to enforce / defend their private rights. In this regard, it is notable just how frequently ordinary disputes over land rights ended up with Section 144 orders being passed, which were then set aside by the High Courts. A line of cases emanating from the Patna High Court is most instructive in this regard. There are also two cases that came up where orders under Section 144 / Police Act had been passed for good governance purposes: One of these regulated the carting of dogs, and the other regulated who could go through a railway station. In both cases, the orders were struck down.

Before drawing conclusions about the social context in which these provisions were being used, let's take a step back, and square this information from judicial decisions with what else we know about this period from 1901 to 1920.

According to most accounts, this period was one of the most volatile periods in the history of colonial India. Recall that this is the era of the infamous Partition of Bengal, of the onset of revolutionary and anarchical activity across the colony and secret societies, of the First World War, of the Khilafat movement, and of the infamous Rowlatt Act. However, none of this is reflected in our small set of High Court decisions. In fact, I found zero cases where the High Courts dealt with Section 144 orders passed in such kinds of issues. The only case I found where the facts concerned political agitations was one under the Calcutta Suburban Police Act, where the Calcutta Police had banned one Leakat Hossein from carrying out Swadeshi Agitations in 1907.

Section 144, Political Speech, & the Seditious Meetings Acts

So, was Section 144 really not being used by the government to rein in political agitators during this period? Of course not. During this time, the limits of Section 144 were being tested as a strained set of administrators relied on this provision to curb political speech and expression. While it did not end in courtroom battles, there was considerable debate within the administration itself, much of which is now publicly accessible thanks to the digital repository of the National Archives of India. 

The tense situation created by the Partition of Bengal in 1905 led many District Commissioners and Magistrates to use Section 144 and prohibit public meetings which, in their view, involved seditious oratory. But something was clearly amiss, for in 1907 the Government brought about the Regulation of Meetings Ordinance to prevent "seditious meetings" and applied it to parts of Bengal. The debates on the eventual Prevention of Seditious Meetings Act of 1907 are silent on this aspect, and Dr. Rash Behari Ghosh's remarks of Section 144 being enough to curb seditious meetings went unanswered. 

A view to how the Government approached the issue can be gleaned from the Home Department files on the 1907 Act, specifically the one marked "HOME_POLITICAL_A_1907_DEC_64-84". The file contains a letter dated August 12, 1907, sent by the Chief Secretary to the Chief Commissioner, Central Provinces to the Secretary of the Home Department, Government of India, giving his opinion on the draft legislation shared with him (Pages 130-132). On whether Section 144 was sufficient to deal with seditious meetings, the letter reads:

"Section 144 of the Criminal Procedure Code would justify the issue of an order to this effect to a fire-brand orator; but disobedience, to that order cannot be punished under the Indian Penal Code unless the court will hold that his action produced or tended to produce a breach of the peace. Fear of a disturbance of the public tranquillity justifies an order under section 144 but not a conviction for disobedience of it under section 188 of the Indian Penal Code which was never correspondingly amended. The object sought could be gained by such an amendment of section 188 of the Indian Penal Code. The interpreta­tion of section 144 of the Civil Procedure Code [sic], read jointly with section 188 of the Indian Penal Code, is so overlaid by a mass of rulings that it is difficult to extract what the law on the subject really is."

Thus, one big flaw in the potential for using Section 144 to curb political agitations was the absence of any subsequent sanction: Even if somebody disobeyed the order, punishment could only follow in very limited cases.

More arguments on the inadequacy of Section 144 are found in a letter dated July 18, 1907 that was appended to the letter sent in August. This earlier letter was sent to all Commissioners and Deputy Commissioners in the Central Provinces and Berar by the Office of the Chief Commissioner, Central Provinces, giving guidance on using Section 144 to deal with political meetings (Pages 138-139). I've linked a typed out copy of the letter here, which merits a full reading.

In the interests of brevity, here I only flag three of the other concerns that the letter raised in using Section 144 for the purpose of containing political speech. One point was the lack of prior notice that a meeting was to be held: it would be very difficult to issue orders under Section 144 to prevent a seditious meeting if there was no prior notice at hand. Another point was the concern of Section 144 with preventing public disorder. Thus, it could not be used "if the sole object of the Magistrate were to prevent an extremist orator from making a Swadeshi speech which might or might not contain seditious phrases". And, finally, there was the problem of legality. There was always the chance that the order under Section 144 could be challenged, either directly or in a prosecution for Section 188 IPC, and so Commissioners were advised to only pass orders which could withstand subsequent legal scrutiny. 

As a result of these issues, the Seditious Meetings Act was passed in 1907 with a three-year expiry date. It was given an extra lease of life in 1910, and then was made permanent in 1911. However, even though the legislators had stressed on the inadequacies of Section 144 to push the case for having a special law in the nature of the Seditious Meetings Act, the ordinary law continued to be used for the containment of political speech throughout British India. Indeed, the sufficiency of the ordinary law was a constant refrain of the Indian benches who were opposing the 1911 Act in the Legislative Council debates. 

Perhaps it was due to this supposed adequacy of Section 144, coupled with India being placed under wartime legislation for a large part of the 1920s, that the Seditious Meetings Act was rarely used till its eventual repeal in 2018. The same can hardly be said about Section 144, which emerged as one of the "repressive laws" of the colonial regime in the subsequent decades.

Next Post: Emergence of a Repressive Law

The years between 1901 to 1920 marked a transformation in how Section 144 came to be used across India. A growing political consciousness led to this provision being used to prohibit public meetings where, according to the British, seditious speeches would be made. Yet, in spite of this, a reference to the debates of the Legislative Council when this issue of curtailing public meetings was raised shows that the Indian members of the Council were quite sympathetic to this provision. It is perhaps notable that while the Rowlatt Act, the Seditious Meetings Act, and the Defence of India Act were all part of the brief of the Repressive Laws Committee of 1922, Section 144 was not.

The resentment surrounding Section 144 was to considerably grow in the next two decades, as it became a key instrument in the legal arsenal to combat large-scale political mobilisation in India. By the end of this period, Section 144 also came to be seen as a Repressive Law, with many unsuccessful attempts being made for its repeal. All this will be the focus of the next post in this series.