Abhinav SekhriDECEMBER 20, 2019 00:31

A security personnel keeps up vigil during a curfew in Guwahati, Assam. File

A security personnel keeps up vigil during a curfew in Guwahati, Assam. File   | Photo Credit: Ritu Raj Konwar.MORE-INThe Hindu Explains

It is targeted as an insidious provision as it confers almost unbridled powers upon executive officers

India’s criminal justice architecture continues to reflect its colonial heritage, both on paper and in practice. This is perhaps reflected best in the vibrant and unfettered invocation of Section 144 in the Criminal Procedure Code, 1973 [“Cr.P.C.”], which confers upon executive officers such as executive magistrates or sub-divisional magistrates, unimaginable powers for passing orders to tackle any urgent cases of “nuisance” or “apprehended danger” that may arise in their territorial jurisdiction, where such orders will “prevent or are likely to prevent” any adverse impact upon human life, health, safety, or prevent “a disturbance of the public tranquillity.”

In theory, Section 144 embodies very noble ideas. It is a manifestation of the idea that exceptional times call for exceptional measures, something very few of us would disagree with. But rather than simply conferring a carte blanche upon executive officers, Section 144 circumscribes these powers by stipulating conditions that must be complied with before any order can be passed [clause (1)], while also fixing spatial and temporal limits to ensure that the exception does not overwhelm the norm [clauses (2) through (4)]. Thus, as a rule, an order under Section 144 must be passed after giving prior notice and a hearing to the persons whose rights will be adversely affected, and only “in cases of emergency” can this requirement be waived.

Further, Section 144 also incorporates within itself the idea of an aggrieved person challenging the exercise of such power, or even the state itself reviewing its actions [clauses (5) through (7)]. So, even where persons may not have been heard prior to passing of a notice, they can be heard subsequently.

Thus, when one hears of “144 order” being imposed in times of riots or demonstrations, what that actually refers to is an order passed under this section, which then specifies certain things that shall be done, because the officer considers that these steps will prevent damage to life and property, or a disturbance to public tranquillity; most common among these being an order passed by the local Police Commissioner (who will be an executive magistrate) directing that the police take steps to prevent any associations of people within an area, because the officer considers this necessary to prevent violence.

Backgrounder | Section 144, a vestige of colonial rule

If Section 144 is so wonderful, why has it been consistently attacked over time, both before and after Independence, as being one of the more insidious provisions on our statute books? There are twin reasons for this criticism. The first is that in the bid to legislate for all kinds of emergencies, Section 144 ends up conferring almost unbridled powers upon executive officers.

The only check placed upon the officer before passing any order under Section 144 is whether or not it satisfied his conscience, about there being a need for such orders which will almost certainly entail curbs upon the rights of persons.

And even though there are powers to challenge such orders in appeal or in a writ before constitutional courts, even they cannot substitute their appreciation of the facts for what the officer himself thought. At best, they can make sure that the procedure was correctly followed, but they cannot substitute their judgment for that of the officer on the ground.

Furthermore, the extreme breadth of powers conferred upon executive officers by Section 144 is not specifically tailored towards the kinds of dangers that are sought to be prevented. Let’s unpack this further. Section 144(1) confers these powers for achieving certain goals, i.e. preventing any damage to life or property, but frames these objectives as widely as possible given the logic of emergencies.

However, there is nothing in the statute itself that says that the executive officer can only do A, B, or C to, say, prevent any “disturbance of the public tranquillity”, where this did not suggest any active threats to life or property. But given that some link between the remedy and the illness will appeal to any rational observer, appeal courts are willing to interfere where the link is far too tenuous.

Thus, to sum up. Section 144 is a useful tool to help deal with emergencies. However, absence of any narrow tailoring of wide executive powers with specific objectives, coupled with very limited judicial oversight over the executive branch, makes it ripe for abuse and misuse.

(Abhinav Sekhri is a lawyer practising in New Delhi)