In the wake of protests all over the country against the draconian Citizenship Amendment Act (CAA) and implementation of a nation-wide National Register of Citizens (NRC), the government has been imposing section 144 in various places. As I write this, section 144 was imposed at Mandi House in Delhi.
What is Section 144?
Section 144 of the Code of Criminal Procedure (CrPC) is a law prohibiting the gathering of people at public places. The provision gives the power to pass such order to an executive magistrate (as compared to a judicial magistrate), who may also be the police commissioner, in “urgent cases of nuisance or apprehended danger.”
The orders may be directed against a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. Since an order passed under section 144 usually contains references to “unlawful assemblies” under the Indian Penal Code (IPC), it typically forbids gatherings of four or more people in the specified area. In cases of “emergency”, these can be passed ex parte.
Section 144 is a piece of colonial-era legislation that was primarily used by the British to curb dissent, quite similar to how it is used by the Indian government today.
Orders of this nature cannot be in force for more than two months from the date of order. Nevertheless, an extension for a further period not exceeding six months can be sought by the State Government.
Section 144 is a piece of colonial-era legislation that was primarily used by the British to curb dissent, quite similar to how it is used by the Indian government today. Coupled with the Telecom Suspension Rules of 2017 passed under another colonial-era legislation, the Indian Telegraph Act, the government is empowered to bring about internet shutdowns as well. The government has used this power with impunity, shutting down the internet over a hundred times just in 2019. This has caused India to lead the world in this regard, before even the anti-CAA protests or the revocation of Article 370.
Why is Section 144 Problematic?
The law feels reasonable in theory – it seeks to prevent damage to life and property; it does so by the prohibition of public gatherings; an order under this can be passed only after the provision of notice and hearing to the parties it will affect; it can be questioned by the aggrieved party; there is an upper limit to the duration for which the order may be in force. Yet, it is troublesome in practice.
Section 144 gives almost unrestricted powers to the executive magistrate, usually a representative of the police. This is because the only condition to be fulfilled before an order under this is passed is that in his/her opinion, there is “sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable” and that such direction is “likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.“
This is as problematic as it is vague. Each of the terms mentioned above has scope for broad interpretation and is subject to the biases of an individual. Apart from this, an order can also be passed ex-parte during times of “emergency” – another term left to the interpretation of the Executive. Also, there are no particular actions sanctioned for particular situations; the Executive is free to choose almost any course of action he/she desires. Provisions exist for appealing against such an order, but the process takes time and its purpose is usually exhausted before the appeal is decided. All of this, coupled with limited judicial oversight, leaves the law vulnerable to the whims and fancies of the people in power, as is evident in the government’s actions during the anti-CAA protests.
There is no denying the fact that the imposition of section 144 is necessary for certain situations – the same situations mentioned in the legislation itself, the ones it seeks to act as a shield against. It is the constant and capricious usage of it that warrants the many condemnations of it, and that the condemnations are for in the first place.
Section 144 During the Anti-CAA Protests
Section 144 has been imposed in several parts of India, ranging from areas which are a few kilometres in diameter to entire cities and even states, for durations of a few hours to a few days to even entire months.
A few days ago, on the 21st, it was imposed in Gorakhpur, Uttar Pradesh. It was imposed in the entire city of Aurangabad in Maharashtra on the same day, till 18th February 2020 – which is almost two months. Manipur’s capital, Imphal, was also brought under it for two months on the same day.
On the 20th, section 144 was imposed on the entire state of Uttar Pradesh, which is possible owing to a Supreme Court clarification that allows usage of the law “against the public in general.” On the same day, Karnal in Haryana, Noida and Rajkot in Gujarat, met the same fate.
44 out of the 52 districts in Madhya Pradesh had the law imposed upon them on the 19th, while Bangalore had to face the same. Parts of Delhi, specifically the Red Fort Area and the North East region, were prohibited from having public gatherings on the 28th, along with Shivamogga, Karnataka and the entirety of Uttar Pradesh.
This is by no means an exhaustive compilation of the instances of imposition of section 144 during the anti-CAA protests. Yet, there are many other occasions during just 2019 that the government used the law – when the Ayodhya verdict was given, during the Aarey protests, in the aftermath of the Hyderabad rape and murder case, during the Sharad Pawar vs ED case and finally, post the removal of section 370 – to name a few.
Right to Protest vs Duty to Maintain Law and Order
The incessant and arbitrary imposition of section 144 is justified by the notion that the line between the right to protest and the duty to maintain law and order is very thin. This is false, considering that in a lot of the aforestated cases, there was no reasonable apprehension of damage to life and property, just that of to the ruling party. In the cases of Delhi and Bangalore, protests went on despite the imposition and turned violent after police involvement sanctioned by 144, while in non-BJP ruled states like Tamil Nadu and Maharashtra where section 144 was never invoked, massive protests involving lakhs of protesters have been carried out peacefully.
By using the law as often as it does, the government assumes that peaceful protests do not exist
For the most part, whatever damage to life or property was caused in the nation with regard to the protests was a result of section 144, which empowered the police to attack and detain protesters, causing bedlam. The law ends up causing the same reality it seeks to prevent. This is masterfully done by the people with power who blur the pretty prominent line between the right to protest and the duty to maintain law and order – and then lie about it being thin.
In the context of protests, section 144 is imposed when it is believed that the protest would be violent. By using the law as often as it does, the government assumes that peaceful protests do not exist. It sends out a message to the average citizen that peaceful protests do not exist. This makes dissent itself look bad.
It is almost like section 144 is just a tool the government uses in an active effort to not just curb dissent, but demonise it.
Featured Image Source: Rising Kashmir