‘Can’t Be A Tool To Prevent Legitimate Expression Of Opinion Or Exercise Of Democratic Rights; Use Only If Danger Is In Nature Of An Emergency’

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New Delhi:

Frowning at the mechanical imposition of prohibitory orders under Section 144 of the Criminal Procedure Code (CrPC) since the British era to the present day, the Supreme Court ruled on Friday that they cannot be used to quell dissent or expression of grievance in a democracy.

In its judgment on restrictions imposed on the movement of people in J&K after the August 5 decision to remove its special status and divide it into two Union territories, the bench said, “Power under Section 144 CrPC cannot be used as a tool to prevent legitimate expression of opinion or grievance or exercise of any democratic rights.”

The bench emphasised that application of the provision should be limited to situations of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. It also said “repetitive (prohibitive) orders under Section 144 would be an abuse of power” and directed authorities concerned to notify all prohibitory orders passed in J&K so as to enable aggrieved persons to challenge them at an appropriate forum.

But as in the case of the part of the verdict dealing with the suspension of internet in J&K, Justices N V Ramana, Subhash Reddy and B R Gavai recognised the need for the state to use Section 144. The thrust appeared to be more on the prevention of misuse of the provision; to ensure that it was used judiciously rather than turned into a blunt weapon.

Beacon of rule of law shines always, says Supreme Court

Thus, the court said the provision, which was both remedial and preventive, could be used not only to deal with an existing danger but also in situations when there was apprehension of one, so long as the “danger” qualified to be an emergency and likely to result in “obstruction and annoyance or injury to any person lawfully employed”.

The bench said the use of the provision was subject to judicial review and, hence, should be resorted to reasonably and on the basis of material facts. “While exercising the power under Section 144 CrPC, the magistrate is duty bound to balance rights and restrictions based on the principles of proportionality and apply the least intrusive measure,” it said.

The effort to negotiate the duel between the utility of Section 144 for dealing with emergency-like situations and the experience of its misuse came across clearly in the court’s observation, “As emergency does not shield the actions of the government completely, disagreement does not justify destabilisation; the beacon of rule of law shines always.”

However, it also cautioned against too much stress on the “proportionality doctrine” to temper restrictions in cases relating to the security, sovereignty and integrity of India.

It noted that imposition of the section over a larger area and longer duration required a higher threshold.

Referring to senior advocate Kapil Sibal’s argument that governments in future could misuse powers under Section 144 to impose blanket restrictions to prevent opposition parties from elections, the bench said, “Our Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144 CrPC unless there is sufficient material to show likely incitement to violence or threat to public safety.”

The bench, which included Justices R Subhash Reddy and B R Gavai, said imposing Section 144 had direct consequences upon the fundamental rights of the public. Hence this power “should be used responsibly, only as a measure to preserve law and order”, it said in its ruling on petitions challenging internet shutdown and curbs on people’s movement in J&K.

The power under Section 144, being remedial as well as preventive, is exercisable when there is an apprehension of danger, but the danger contemplated should be in the nature of an “emergency” and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed, the court said.

It is the magistrate’s call to assess the situation and take a call on whether Section 144should be imposed, it said. While exercising this power, the magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure.

Repetitive orders under the provision would be an abuse of power, the bench said.

The state is best placed to make an assessment of threat to public peace and tranquillity or law and order. However, the law requires them to state the material facts for invoking this power. This will enable judicial scrutiny and a verification of whether there are sufficient facts to justify the invocation of this power, it said.

In a situation where fundamental rights of the citizens are being curtailed, the same cannot be done through an arbitrary exercise of power; rather it should be based on objective facts, the court said.