Section 144 – A colonial vestige; Needs to be removed!
Central and state governments have continuously resorted to the use of Section 144 of the Criminal Procedure Code (CrPC) to deprive citizens of their fundamental right to peaceful assembly without holding an inquiry.
During the anti-Citizenship (Amendment) Act (CAA) protests from December 19 to 21, 2019 in Bengaluru, the police commissioner acting as the district magistrate, imposed Section 144 across the city.
The reason given was that under this Section, a District Magistrate (DM) may “by a written order stating the material facts of the case direct any person to abstain from a certain act 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 tranquility, or a riot, or an affray”.
The Principal Bench of the Karnataka High Court later declared that this order was illegal since the danger pointed out by the government was not in the nature of an emergency. The Court also declared that this power cannot be used to suppress the legitimate expression of opinion or grievance or exercise of any democratic rights.
When Section 144 is imposed, assembly of more than three people in public places becomes illegal. This Section enables governments to treat citizens like criminals just because any assembly is considered unlawful even if peaceful. In fact, under Section 151 of the CrPC, a police officer has powers to arrest without a warrant any person who even thinks of participating in “unlawful assembly”.
If in spite of these actions of the Indian State to muzzle protests, a citizen dares to participate in a protest, then they can be severely punished. Such participation attracts several Sections, 143, 145, 146, 147, 149, 150 and 151, of the Indian Penal Code (IPC), some of which are punishable with two years’ rigorous imprisonment, even for innocent, unarmed men, women and children.
Since the District Magistrate is answerable to the Executive, the ruling party resorts to this draconian act many times and compels the DM to take action.
For example, Section 144 was promulgated at Thoothukudi in Tamil Nadu on May 21, 2018. After the promulgation, 13 innocent people were killed in police firing, hundreds were maimed. People of this city had been waging a protracted struggle against Vedanta’s Copper Smelter Plant, Sterlite, which had been poisoning the water and air. The multinational demanded that the DM impose Section 144 giving the spurious justification that their personnel, plant and machinery were in danger from the people. When the DM refused, they forced the Madurai Bench of the Madras High Court to order the DM to do so. The Court, based on a pamphlet distributed, made a prediction that there would be a serious law and order situation. The Court ordered that Section 144 should be imposed in city or the DM would be guilty of “dereliction of duty” and the “Court would be justified in invoking its powers under Article 226 of the Constitution”. Ironically, Article 226 gives powers to the High Court to issue orders to enforce fundamental rights when they are in danger! In this case, the High Court used the same Article to deprive people of their fundamental right to protest and assembly.
The Moradabad district administration in UP has used this Section as a terrible weapon by arresting people and slapping them with huge fines “for violating Section 144” by participating in an anti-CAA protest. A notice issued by the additional DM-City said: “One company of Rapid Action Force and a half section of Provincial Armed Constabulary have been deployed at the protest site. It amounts to a total expenditure of Rs 13.42 lakh per day…the total sum spent on security amounts to Rs 1,04,08,693.” This is the pathetic justification that the administration gave for depriving people of their fundamental rights!
In Chennai, the police insists that citizens should apply for “permission” to protest. Recently the police arrested hundreds of people for participating in an anti-CAA demonstration using Section 41 of the Madras City Police (MCP) Act, 1888, which is an anachronistic colonial legislation used by the British colonialists to ruthlessly crush any protest or dissent against British rule. Often, at the mere mention of a protest, a contingent of police, even larger than the protestors themselves, is sent to intimidate and break the demonstration. In the current anti-CAA protests, even women were not spared and ladies drawing kolam in front of their homes were detained!
When Section 144 is declared, the victims become the criminals. On Feb 26th, after the death of many people due to firing and arson, the Delhi police announced the imposition of Section 144. A news agency reported this. “’For one month, section 144 is imposed in the Seelampur area. No one should be seen here. Right now we are explaining politely, afterward, we will deal strictly. Close the shops here,’ announced Police while patrolling the area”.
It is also a fact that Section 144 is imposed selectively. It was not imposed when BJP hordes led by their leaders hold pro-CAA rallies throughout the city, but only on peaceful protestors sitting on dharna at an announced spot. Section 144 was not imposed but withdrawn prior to the demolition of the Babri Masjid on December 6, 1992.
Section 144 violates fundamental right to assembly provided in Article 19 (b) using the restriction clause in the same article that “Nothing… shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred…”
There are various Supreme Court and High Court judgements which uphold the constitutionality of this law as per the scope of the reasonable restrictions imposed by the Constitution itself. They have also refused to strike down the law arguing that the possibility of being abused is no reason for it to be struck down!
While the Constitution talks about freedom and liberty in the Preamble and several articles in the Fundamental Rights section declare that citizens have the right to life, liberty, assembly, religion and conscience, these rights are violated in practice. The violation of fundamental rights is justified by the existing laws, including Section 144 of the Criminal Procedure Code.
Based on the Constitutional premise that there can be reasonable restrictions on fundamental rights and that they can be suspended in the event of a security threat, central and state governments blatantly and cruelly deprive the people of their fundamental rights, declaring a security threat whenever and wherever they please.
Section 144 is one of the numerous anti-democratic features of the legal system inherited from British colonial times. It is a weapon in the hands of the ruling capitalist class to suppress the struggles of any section of the people. It appears to be aimed at preventing any kind of public gathering. In practice, it is used only to prevent gathering of people who are protesting against those in power. The police never act against gangs organised by those in power, even if Section 144 is in force and even if such gangs carry out violent acts.
|Understanding Section 144
After the Ghadar of 1857, the British Crown took over the administration in India from the East India Company. A Criminal Procedure Code (CrPC) was passed by the British parliament in 1861. Most of the provisions of the 1861 code was made applicable to India with immediate effect to give support to Indian Penal Code (IPC), 1860. After 1947, the Indian State enacted CrPC in 1973, which came into force in April 1974. The bulk of the 1973 code came from the 1861 code. Section 144 was duly retained from the archaic colonial code and has been used on countless occasions by the Indian State to quell protests of the people.
Section 144 empowers the administration – technically a district magistrate or any other executive magistrate — to issue order in urgent cases of nuisance or apprehended danger. Under this Section, the administration is empowered to impose restrictions on the personal liberties of individuals. This means that the fundamental right of peaceful assembly provided under Article 19 of the Constitution is curtailed by the administration if the executive magistrate finds the situation at any specified place presenting a potential danger to law and order.
The restriction could be imposed in a specific locality or in the entire town. Power conferred under Section 144 is absolute in terms of maintaining law and order.
Once Section 144 of the CrPC is imposed in any area, all civilians are barred from carrying of weapons of any kind including lathis, sharp-edged metallic objects.
Violation of Section 144 is liable for punishment upto three years in jail.
As a matter of rule, Section 144 is imposed for two months but it can be withdrawn any moment the administration finds the situation has attained normalcy. The government may extend the duration of restriction imposed under Section 144 beyond two months but not exceeding six months in one stretch.
Even places like Jantar Mantar in Delhi and Marina Beach in Chennai have been increasingly out of bounds for people who have traditionally gathered in these places to conduct protests. There are certain places in Delhi where Section 144 is imposed all the time. Parliament Building Complex and the Supreme Court are among such areas where Section 144 is always in force.