Section 144

Section 144 is frequently observed in the news reports surrounding instances where there is unrest. It is a legal provision contained in the Criminal Procedure Code, 1973 which allows an Executive Magistrate to issue orders preventing gatherings of four or more individuals in a specified location, designating such gatherings as "illegal assemblies". Its application is pertinent in situations involving imminent nuisance or suspected threats to human life or property, seeking to prevent societal unrest and harm. The order's lifespan is limited to two months, extendable by the State Government for an additional six months. Under Section 144 restrictions are imposed on public gatherings, assembly, and may even mandate the closure of educational institutions.

There are two types of orders in which an area can be shut down for any kind of meetings or operations. One is when a lockdown is imposed, and the other is when a curfew is declared.

• Lockdown: a lockdown can be imposed by a Collector or a Chief Medical Officer within their area (jurisdiction) under the Epidemic Diseases Act, 1897. This prohibits gathering of 5 or more individuals in close proximity. However, essential services like hospitals, banks, ATMs, grocery stores, vegetables and milk shops are open.
• Curfew: Curfew is implemented at the discretion of the Collector and Police Commissioner. Under it all essential services are suspended. People's movement is restricted during certain hours of the day or night and they are asked to stay indoors. Except for emergency services such as hospitals, banks, ATMs, grocery stores, vegetable and milk shops all other services are closed.

Section 144 is used to impose such restrictions on movement. The Section 144 order gives more detail on the restrictions and they can vary from order to order based on the Emergency which is sought to be tackled.

Under Section 144 of the Criminal Procedure Code of 1973 (“Cr. PC”) the Executive Magistrate in any State or Territory is authorised to issue an order prohibiting gathering of four or more individuals in a specific location. Participants in such gatherings, termed as an “illegal assembly” may face charges under the Indian Penal Code.

• Grounds: In situations which involve imminent nuisance or suspected threats of incidents that could pose risks to human life or property. To prevent unfortunate societal occurrences, which can result in breakout of riots and harm to society.
• Reasoned Order: The Magistrate must mention the material circumstances in the order.
• Duration: Not more than two months, and can be extended by the State Government for another six months
• Effect: there are restrictions on public gatherings and various types of assemblies, and educational institutions may also be required to be closed for the duration of the Order. Authorities also have the power to restrict internet connectivity under Section 144.
• Purpose: Primary purpose for implementing Section 144 is to ensure the maintenance of peace and harmony in a given area.
• Who can Impose Section 144: District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government on this behalf.
• Punishment: imprisonment of upto 6 months or fine if a section 144 order is violated.
• Recovcation: The order can be rescinded by the Magistrate or by the State Government on their own or by virtue of a petition before them.

1. Annoyance: Both physical and mental annoyance (by nuisance) can be curbed under Section 144. There must be risk to the life and health of the public or the risk of an altercation breaking out which include riot and breach of peace
   • In scenarios of annoyance it can be employed against a newspaper under certain circumstances.
   • Simple defamatory statements cannot be a ground for imposition of Section 144 unless they pose a risk to life or health. In order to impose Section 144 on nuisance
2. Disturbance to public tranquillity: an act or a scenario which has the potential to create obstacles or disturb public peace. The relation between the act and cause must be close and not a mere hypothetical possibility.
3. Risk of unlawful assembly: if there is a risk of an unlawful assembly gathering in an area which can lead to disruption of public order.

1. Uttar Pradesh: with the encounter killing of the gangster Atiq Ahmed, Section 144 curfew was in effect in the district where the encounter of the gangster took place.
2. Manipur: the provisions of Section 144 were in effect in nearly eight districts of Manipur, where large scale violence and rioting was in effect.
3. COVID-19: many Indian States in order to control and mitigate the spread of the virus imposed Section 144 across many districts in India.

1. The Proportionality Test: The Hon’ble Supreme Court has developed the proportionality test to determine whether a restriction imposed on the right of liberty of individuals is imposed in a proportional manner or not. In order to asses the proportionality of a thing the Hon’ble Supreme Court in K.S.Puttaswamy Case prescribed the four part test of proportionality, as follows:
   1. restriction on the right must have a justifiable purpose;
   2. it must be an effective method of achieving the objective;
   3. there must be no other less stringent but equally effective substitute;
   4. action taken cannot be unfair to affect the holder of the rights.
   
   

   Therefore, the legality of the Order issued by the District Magistrate under Section 144 Cr. P.C. is measured as per the above mentioned rules of the Proportionality Test.

2. Shutting down of the Internet using Section 144: earlier Section 144 was used to break unlawful assemblies and violent riots. However, in certain recent years the powers under this provision have been used to curb or shutdown the Internet in certain areas. In AnuradhaBhasin Vs Union of India, a challenge was made against the internet and telecommunications shutdown in Jammu and Kashmir imposed through order passed under Section 144 and the provision of the Telecom Suspension Rules, 2017. The Court observed that the issuing authority (for Curfew under Section 144) is bound to satisfy the proportionality test and that Section 144 cannot be used to suppress the legitimate expression of opinion. Supreme Court held that its repeated use amounts to abuse of power.

The issue of whether Section 144 is valid under the Constitution was raised in Madhu Limaye Case, 1970. The Supreme Court has upheld the constitutionality of this extraordinary power. It has held that restrictions imposed through Section 144 are covered under the reasonable restrictions to the fundamental rights under Article 19(2) of the Indian Constitution.

the Section has seen rampant use of the authorities, in order to maintain peace and law and order in sensitive areas, the Section has faced lots of criticism on the following grounds:

1. Excessive and unjustified power given to magistrates: the Section has been criticised for giving extensive and unchecked power to the magistrates which can lead to it being misused for political gains.
2. No proper legal remedy: the recourse available against issuing of the Section 144 order is to file an application to the authority which issued the order in the first place. The process is inadequate as it lacks an independent review mechanism.
3. Lack of jurisdictional justification: the broad application of Orders under Section 144 can apply to large areas which many a times is seem as an overreach as the security concerns and conditions can differ from one region to another
4. Misuse for Other Objectives: A report found that Section 144 orders were used in Delhi to mandate installation of CCTvs and to ban drugs. This is not the intent of this Section as it is only required to be used as an exceptional measure, and not for routine activities.

Employing Section 144 proves beneficial in managing extreme emergencies effectively. It is a powerful tool in the hands of law enforcement agencies of India. However, like any other tool, Section 144 too has the potential to be misused, as many a times there is no judicial oversight over the executive while imposing such an Order. Therefore, mechanisms of oversight should be made to check the misuse and mal-implementation of the Section. For this, a review board can be set up by the concerned governments which comprises independent members, who check and assess the extent of applicability and the nature of the restrictions imposed under the Section. It should also be mandated that Section 144 orders be published on government website so that all are made aware of the restrictions. This will enable public scrutiny also. Executive Magistrates like District Collectors must be sensitised to the extraordinary nature of this power. They must exercise restraint before using Section 144 power for routine undertakings. Such measures if taken can ensure that the “tool” which is Section 144 is not utilised as a means to any unlawful gain.