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: 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.