Misuse of Section 144 Cr.P.C in India: Threat to Rights and Need for Reform, Study Guides, Projects, Research of Law

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FINDING A BALANCE BETWEEN

LIBERTY AND SECURITY

SUBMITTED BY

HANIF MOHAMMAD MUSTAKIM

HADIQUA ISLAM

DEBANJAN SAHA

LLB- SEM 2

SUBMITTED TO

PROF ISHANI DAS

CHAPTER

No.

CHAPTER NAME PAGE NO.

1. INTRODUCTION

2. OBJECTIVE AND SCOPE

3. HYPOTHESIS

4. RESEARCH

METHODOLOGY

5. REVIEW OF

LITERATURE

6. RESEARCH QUESTION

7. ANALYSIS OF SCOPE OF

POWER U/ S. 144

8. CONSTITUTIONAL

VALIDITY OF S.

9. INSTANCES OF GROSS

MISUSE OF S.

9.1 HATHRAS

GANGRAPE CASE

9.2 Ramlila Maidan

Incident

9.3 Anti CAA Protests

9 .4 Internet Shutdowns

10. Comparative View Of

Public Order Act Of UK

With S.144 Of CRPC

11. CONCLUSION

12. BIBLIOGRAPHY

OBJECTIVE AND SCOPE Through this research paper we aim to analyse how S.144 of CRPC is being misused by the administration to supress the voice of public. We will do in dept analysis of various instances, where S.144 is used to violate the fundamental rights of the citizens, we will also be looking at various cases which questions the constitutional validity of the provision and the Impact those cases had on the application on the particular provision. We will also do a comparative analysis with the similar provision in the U.K and try to find a probable solution to the misuse of the particular provision so that we can find a balance between liberty and security. HYPOTHESIS Abrogation of S.144 of CRPC and in its place enactment of a new legislation dealing with public peace and order during the situation of urgent need or emergency along the same line with Public Order Act, 1986 of the U.K.

RESEARCH METHODOLOGY The whole research is based on a Doctrinal type of Research. The data in this research is collected from legislations, textbooks, articles, journals, and websites. An analytical, descriptive and a qualitative research method is adopted. It is research wherein the legal provisions and the judicial pronouncements on the topic of research are critically examined. A historical analysis dealing with the evolution of the laws is also done. The research also includes a comparative analysis, whereby the laws of other democratic countries are compared with that of the Indian laws. The recent case studies of the misuse of powers are also scrutinized to come to a conclusion.

RESEARCH QUESTION How S.144 CRPC is being Misused How can we prevent the Misuse of S. “Magistrate’s Action should be against the wrongdoer rather than against the wronged” How can that be ensured?

1) ANALYSIS OF SCOPE OF POWER U/ S. 144 Section 144 of the CrPC, 1973 grants the magistrate power to issue an order prohibitory nature in case of emergency or in cases where the magistrate under the circumstances is convinced that such prohibitory order is necessary for maintaining public peace and tranquillity or to prevent obstruction, annoyance, injury or danger to human life and public health and safety. Any order passed under section 144 of CrPC is temporary and remains in force not more than two months, however, it may be extended by the state government to a period extending not more than six months if the necessity of situation demands. According to this law, the order or the action taken under this section is anticipatory in nature i.e. certain actions are restricted even before they actually occur. Whenever as per the opinion of the magistrate ‘there is sufficient ground for proceeding under this section’, the law is applicable. Under this section, orders are acceptable only when it is likely to prevent:

• Annoyance It can be of two types namely physical or mental annoyance. In physical annoyance, a certain amount of propinquity should be there between the object but in mental annoyance, no question of propinquity arises. Under this section even if an order deals with nuisance, there must be a danger to life and health involved or breach of peace. This section should not be used to deal with abusive articles and defamatory statements which are not likely to lead to a breach of peace.
• Injury to Human Life A magistrate must ensure that the order is likely to prevent the risk of injury to human life or safety and he cannot make an order for the protection of property. The act must be satisfied on the ground that if not prevented right now, then it would turn into an offence in the near future.
• Disturbance of Public Tranquillity The act prohibited under this Section must not be enough to say that by stretching it would have possibilities to establish a connection of cause and effect between the public tranquillity and the act prohibited. The connection should have reasonability and should not be just hypothetical or distant.

Not specifically tailored towards the kinds of dangers : Section 144(1) confers 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 public tranquillity”, where this did not suggest any active threats to life or property. Imposition of Section 144 to an entire state, as in UP, has also drawn criticism since the security situation differs from area to area. Violation of fundamental rights : It may violate the right to assemble peaceably and without arms is laid down in Article 19(1)(B) of the Constitution. Internet shutdowns : it may amount to a direct violation of the fundamental right to freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India. An infringement of freedom 'to practice any profession, or to carry on any occupation, trade or business' as laid down under Article 19(1)(g) of the Constitution: The heavy losses accrued by e- commerce business due to untimely shut down of the internet violates this right. This fundamental right can only be limited on the grounds as laid under Article 19(6). Dilemma of choosing between digital economy and banning internet: Over 16,000 hours of internet shutdowns cost the economy a little over $3 billion over the last five years, according to a report by the Indian Council for Research on International Economic Relations (ICRIER). Section 144 has often been used to block communication overriding various safeguards in the IT Act.

2) CONSTITUTIONAL VALIDITY OF SECTION 144 The orders under this provision will lead to the infringement of fundamental rights to freedom of speech and expression, assembly and movement guaranteed under Articles 19 (1)(a), (b) and (c) of the Constitution of India. Hence, the orders under Section 144 have to meet the test of reasonable restrictions as per Article 19 of Constitution of India. S.144 is used to prevent rioting and unlawful assembly. It seeks to uphold law and order in a communally charged atmosphere, which arises as a result of threat to the physical safety of people, grounded in their ethnic, religious, caste or linguistic differences. The District Magistrate, a Sub- Divisional Magistrate or any other executive magistrate specially empowered by the State Government, has the authority to issue orders under S.144. Such an order can only be invoked, when there is: sufficient ground; a requirement for immediate prevention; and a speedy remedy to prevent a likely obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity^5. Lastly, with a written S. order, the authorized can direct a person to abstain from a detrimental act after determining sufficient cause. At the outset, there are several fundamental incoherencies within the provision: Firstly , since the provision is not territorially specified and geographically-confined, on multiple occasions S. orders have been passed for the entirety of states, for instance, in December 2019, in light of anti- CAA protests, prohibitory orders were imposed on the entire territory of Uttar Pradesh and Karnataka^6. This lacunae within the provision exposes every single citizen in these states, to unwarranted and arbitrary police action. Secondly , the ambiguity of the provision grants very wide powers to the issuing authority. It is essential to know the three concentric circles that exist in the public sphere in order to understand 5 The Code of Criminal Procedure, 1973, § 6 Scroll.in, Citizenship Act protests: Why sweeping bans on public meetings in entire states are illegal, December 19, 2019, available at: https://scroll.in/article/947275/citizenship-act- protests-imposing-ban-on-large-gatherings-on-entire-states-is-illegal-arbitrary (Last visited September 11, 2020); The Hindu, No permission given for protests as Section 144 in place: U.P. police, December 19, 2019, available at: https://www.thehindu.com/news/national/no- permission-given- for-protests-as-section- 144 - in-place-up-police/article30342572.ece (Last visited September 11, 2020)

3) INSTANCES OF GROSS MISUSE OF S. 3.1) HATHRAS GANGRAPE CASE On 14th^ September 2020 a dalit Girl and her mother went to work in field which belonged to upper caste thakur villagers The mother and the daughter were separated by a distance of 100 m, when the mother heard screams of her daughter. She rushed to the spot and found out that her daughter was lying in on the ground covered with blood with her tongue cut out. An hour later, the victim and her mother reached the police station, the victim was slipping in and out of conciseness but video of that particular moment was found where the victim was saying that she was strangled as he did not let them force her but it was alleged by the family of the victim that the police significantly delayed in registering FIR. On 19th^ September, Victim's Statement was recorded where she mentioned molestation and name of the attackers including the name of the main accused Sandip. On September 22nd^ victims dying declaration was recorded before the magistrate. In the statement, victim named all the accused and confirmed sexual assault. The medico-legal examination done on that that day confirmed use of force but opinion regarding penetrative intercourse was lupt- paneling. The additional director generales police ( UP ), Prashant Kumar also said that ) - FSL repost- of the 19 yrs old victim reveal that she was not raped, a news channel quoted him saying "No Semen was found in forensic Report" whereas experts disputed this claim that saying that Samples were taken 11 day after the assault. On 29th^ September the victim succumbed to her injuries. Following her deaf a nation wide protest-erupted. Members of the congress party as well as the Bhim Army wire part of the Dharna demanding strict punishment of the accused. The family alleged that the police was secretly trying to dispose of victim's body but due to Nation wide protest and support of the opposition they were unable to do so and the next day victim's body along with the brother and father were taken back to the Boolgarhi village.

On September 30th^ at around 2:30 A.M. in the morning the police forcefully cremated the victim's body without the consent of her family but this forceful cremation gave even more momentum to the nation wide protest, and the intention that of UP Government was in question In this situation, the only help the victim's family could get was through the support of the opposition parties, media and people of the country but the help was dented by the administration. On 1st^ October 2020, U/S 144 of Cr. P.C. was imposed to on Boolgarhi village, ahead of visit of oppositional leader Rahul Gandhi and Priyanka Gandhi. All the entity point were sealed an was barred from entering. Even the victim's family was under strict surveillance of UP police. So In the above instance it is clearly the seen that U/S 144 Cr. P.C was used to deny Justice to the Victim's family, here the magistrate's Action was against the WRONGED rather than being against the wrong doer.

3.2) Ramlila Maidan Incident

In 2011, Baba Ramdev, along with others, were protesting against the issue of laundering of black money. He planned to take out an Anti-Corruption Rally at the Ramlila Maidan, Delhi. In June 2011, he started his hunger strike at the site. The crowd at the venue raised to cross over half a lakh supporters. On the same day, some time close to midnight, the Police informed him that his permission for the event has been revoked. An hour later, approximately 5000 police personnel, including the CRPF, Delhi Police and RAF approach the Maidan. A scuffle between the supporters and the police took place, while Ramdev fled the scene. Eight rounds of teargas shells were charged at peaceful protesters, with police using brute inordinate force against the unarmed masses. Delhi High Court took suo moto cognizance of the situation. The State said t that there was an imposition of the Sec. 144 and Police were well within their right to maintain public tranquility. On a unfavorable decision, the matter was appealed to the Supreme Court. The Apex Court, in Re Ramlila Maidan Incident, delivers its judgment. On the matter of the validity of the order imposed under Section 144, the Court found it to be legally valid. However, dealing with the matter of police excesses in carrying out the order, the Bench found the police

Not Guha alone, hundreds of protesters, that included included Swaraj India chief Yogendra Yadav and politicians D Raja, Sitaram Yechury, Umar Khalid, Sandeep Dikshit and Tehseen Poonawalla, were detained in different cities, often only on charges of violating prohibitory orders imposed through imposition of Section 144. In Bengaluru, where Section 144 was put in place from December 19th to 21st, city Commissioner of Police, Bhaskar Rao admitted that 80 organisations had approached the police seeking permission to protest, but still the orders were imposed to “maintain peace,” banning the assembly of five or more persons. Nevertheless, protestors hit the streets and were taken into custody. Other cities that rose in protest against CAA in spite of Section 144 included Saharanpur, Meerut, Hyderabad, Aligarh, Kalaburgi, Mangalore and Delhi. Surprisingly, a number of situations (other than CAA protests) have been dealt with through imposition of the law this month in Nainital, Chatarpur, Sasaram, Goa and Jaipur. Section 144 appears to come in quite handy to gag protestors, though law enforcers say it is done only to prevent violence or untoward incidents in charged or vulnerable situations. Reports indicate that Section 144 was imposed multiple times during the current tenure of the present government that enjoys an overwhelming majority in the Parliament. The States' rampant imposition of the section raised some important questions once again. How wide can the police's powers be? The purpose of the Section was to maintain public order, not for it to be used against the mass general. So can the police be allowed to silence the voices in opposition? The Judiciary, overall, answered in the negative, the most striking example being J N.V. Ramana's judgment in Anuradha Bhasin in January 2020, wherein he held that S. cannot be used to stop exercise of democratic rights. However, the fact of the matter remains that despite what is jurisprudentially correct, the abuse of the section continued throughout the period of protests in a continuing efforts to silence voices.

3.4) Internet Shutdowns

On August 5, 2019 the ruling Bharatiya Janata Party, imposed Section 144 of the Code of Criminal Procedure (‘CrPC’) in Kashmir, suspending and imposing a blanket ban on mobile, broadband internet, cable TV services citing “maintenance of law and order” issues. This was followed by the abrogation of Article 370 that granted special status to the state of Jammu and Kashmir. The state suspended the internet in the valley for almost six months until the Supreme Court (‘SC’) ruling in Anuradha Bhasin on 10 January 2019. The judgement is commendable for recognising some of the most progressive stance. It held that any indefinite suspension of internet is impermissible under the Temporary Suspension of Telecom Services Rules, 2017 (‘Rules’). It read principle of proportionality under Section 144 and held that powers under the section cannot be used to supress democratic rights. It also held that successive imposition of the orders under the section will amount to abuse of power. It held that the constitutional right under Article 19 (1) (a) and Article 19(1) (g)(which protects right to freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation) is protected over the medium of internet also. It also noted that the internet shutdowns cannot be for indefinite period and all orders of such shutdowns must be in public domain. While the judgement is landmark in its observance on web-based commerce, requirement of transparency from the state and restricting the power of the state under S.144 it still falls short of India’s obligations under International law. It fell short of observing and holding that access to Internet itself amounts to fundamental right and part of freedom of expression. The court missed an opportunity to rule on the legality of internet shutdowns in the biggest democracy which had the highest number of such shutdowns in 2017-18. Further, even though the SC said that the internet shutdowns can only be for temporary and necessary duration and will be subject to judicial review it did not provide any remedy or relief to the Kashmiris. The state submitted that the measures of internet shutdown were not meant to be indefinite, however, the shutdown continued for almost six months. The court failed to lay down what qualifies as ‘temporary’ shutdown. The court even though ruled for restricting the state’s power it did not strike down the internet shutdown in Kashmir as illegal and violative of human rights. It merely asked the review committee under the Rules to review the temporary shutdown order. In doing so it left the fate of

4) COMPARATIVE VIEW OF PUBLIC ORDER ACT OF UK WITH S.144 OF CRPC Just how in India we have “S.144” to prevent nuisance from public processions and assemblies in UK they have the entire Act “The Public Oder Act,1986” to deal with the same. The purpose of both, to create public peace and control public processions and assemblies. S.144 of CRPC lacks to be in detailed form and under the umbrella of the Criminal Procedure Code 1973, the discouraging and gloomy cloud of Section 144, however, looms large to silence dissent and discourage democratic participation. On the other hand POA 1986 of UK is in more detailed form and most importantly has conditioned to prevent such disorder, damage, disruption or intimidation, including conditions as to the route of the procession or prohibiting it from entering any public place specified in the directions. Several factors influenced the introduction of the Public Order Act 1986. Significant public disorder, such as the Southall riot in 1979, the Brixton riot that extended to other cities in 1981, and the national miner's strike and associated disorder between 1984 and 1985. After analysing various instances in India were S.144 was misused, it can be easily said that Section 144 is the favourite tool of repression of the state, police and their allies in power: One that is unfailingly and rampantly used to silence dissent, impose self-censorship, discourage people from organising and crackdown on peaceful protesters. In India if we could have a new legislation just like POA,1986 to insure not only Public peace but also ensuring a Balance between Liberty And Security. A legislation to abolish the common law offences of riot, rout, unlawful assembly and affray and certain statutory offences relating to public order; to create new offences relating to public order; to control public processions and assemblies; to control the stirring up of communal hatred. With the guidelines from the Public Order Act 1986, India can get help to build a legislation that will be in more detailed and conditioned manner. The provisions from POA 1986, which is relevant In Indian context and can be included while drafting as similar provision in India:

Section 11 – Advance notice of public processions requires at least six clear days' written notice to be given to the police before most public processions, including details of the intended time and route, and giving the name and address of at least one person proposing to organise it; creates offences for the organisers of a procession if they do not give sufficient notice, or if the procession diverges from the notified time or route. Section 12 – Imposing conditions on public processions provides police the power to impose conditions on processions "to prevent serious public disorder, serious criminal damage or serious disruption to the life of the community" Section 13 – Prohibiting public processions a chief police officer has the power to ban public processions up to three months by applying to local authority for a banning order which needs subsequent confirmation from the Home Secretary. Section 14 – Imposing conditions on public assemblies provides police the power to impose conditions on assemblies "to prevent serious public disorder, serious criminal damage or serious disruption to the life of the community". The conditions are limited to the specifying of:

• the number of people who may take part,
• the location of the assembly, and
• its maximum duration.