On December 19th at Bengaluru, eminent historian Ramachandra Guha was dragged away by the police while protesting the Citizenship Amendment Act (CAA), on the charge that he had violated Section 144 of the Criminal Procedure Code (CrPC). Guha later retorted that the crowds had been protesting non-violently in a disciplined way to uphold the values of the Constitution and told the Police Commissioner: “You have used a colonial-era law to suppress us and our voices.”
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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.
On Friday, the Karnataka High Court questioned the government about the legality of these prohibitory orders. Chief Justice Abhay Oka observed: “Can the state proceed on the assumption that every protest will become violent. Can an author or artist not hold a peaceful protest if he disagrees with any decision of the government?”
Indeed, what is Section 144 and why is it being invoked in different parts of the country?
Section 144 of the Indian Criminal Procedure Code (CrPC), which was once just an obscure number for most, has recently been at the centre of public attention, especially since it was clamped down on a number of cities that erupted in protest against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC).
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.
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.
When did Section 144 grab our attention?
It was really on August 5th, just before the abrogation of Article 370, that Section 144 suddenly captured the public imagination. It was imposed on several districts of the erstwhile state, of Jammu and Kashmir. CRPF and paramilitary forces were deployed, while the centre asked Amarnath Yatris to leave soon.
On August 5th, Section 144 was imposed on Jammu after the abrogation of Article 370. On August 10th, prohibitory orders were lifted in Jammu, while curfew was relaxed in Doda and Kishtwar districts, but restrictions continued in Poonch, Rajouri and Ramban districts.
What does Section 144 say?
Section 144 of the Criminal Procedure Code (CrPC) prohibits public gathering. It gives the Executive Magistrate of a state or territory the right to send forth an order, preempting any gathering of four, five or more persons.
Once imposed, even a peaceful assembly of people who had taken prior permission can be termed “unlawful.”
What is ‘unlawful assembly’?
It describes a group of people who gather allegedly to ‘deliberately’ disturb peace. If the group is just about to begin its disturbance, it is called a ‘rout’. But if it sets off unrest, it starts a ‘riot’.
In legal terms, according to Section 141 of the Indian Penal Code, an assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons in that assembly is
- To overawe the Central or any State Government or Parliament or the Legislature of any State or any public servant by criminal force, or show of criminal force; or
- To resist the execution of any law or any legal process; or
- To commit any mischief or criminal trespass or other offence; or
- To take or obtain possession of any property / to deprive any person of the enjoyment of a right of way or of the use of water or other incorporeal right that he possesses or enjoys / to enforce any right or supposed right — all by means of criminal force or show of criminal force; or
- To compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
Why is it implemented?
Section 144 comes into force to ensure the maintenance of peace in an area. It is to prevent ‘miscreants’ from getting involved in rioting. Instances of nuisance or any apprehended danger, factors fomenting trouble, or fears of damage to human life or property are the various reasons for invoking the law.
Who has the power to impose Section 144?
The powers to impose Section 144 have been conferred on the Executive Magistrate, whenever there is an ’emergency’.
Can Section 144 be imposed indefinitely?
Section 144 can remain in force for a maximum of two months. No order under it should be extended beyond that period. However, the state government can extend the validity for two months and maximum up to half a year if it deems fit.
At any point, the order can be withdrawn if the situation stabilises and normalises.
What is the penalty that can be imposed on such an assembly?
Any person, who despite being aware of orders against any assembly an unlawful assembly, intentionally joins that assembly or continues to be in it, is punishable by law. The maximum punishment to the violator could go up to three years and/or fine, as laid down by Sections 141-149 of the Indian Penal Code (IPC).
What does its imposition mean, practically speaking?
- If your area is under Section 144, there will be a total bar on holding public meetings or rallies and restrictions on public movement.
- It prohibits certain activities, actions or events that are allowed in the regular course of events. For instance, sale of liquor can be banned in order to prevent social tensions and processions, as was imposed in Bengaluru just before the Ayodhya verdict.
- Congregation of ritualistic nature, planned in advance, might also require prior permission from the District Magistrate. Although this is not always applicable, it was imposed in the Kashmir order on August 5th.
- The law limits the carrying of any kind of weapons, such as lathis, sharp-edged metallic objects or firearms in public
- If law enforcement agencies are obstructed from dispersing an “unlawful assembly,” it could be counted as a ‘punishable offence’.
Does Sec 144 apply to educational institutions, since there will inevitably be an assembly of people in schools and colleges?
Section 144 does apply to schools, colleges, other educational institutions and government offices. These can be closed according to the order. However, it does not apply in every case. Currently, Section 144 has affected educational institutions in Kalaburagi in Karnataka but not in Bengaluru.
Can Internet and telecommunication services be withdrawn under Section 144? What are the implications for social media?
Section 144 can include suspension of Internet services in various cities, which would affect social media communication too. Sometimes, the Internet may not be blocked, but social media posts may be monitored or even banned to prevent communal disharmony. In Jammu and Kashmir, a complete communication blockade was implemented.
It can also mean suspending telecommunication services, which would include voice, mobile internet, SMS, landline and fixed broadband, according to the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
Does Section 144 amount to a curfew?
Certainly not. Section 144 prevents unlawful assembly of four or more persons and public movement in groups. A curfew restricts all public movement during the specified period over which it is in effect. Only essential services are operational, while schools, markets and businesses remain closed.
What are some of the other circumstances in which cities saw Sec 144 imposed this year?
Noida: The district administration asked citizens to maintain peace after the abrogation of Article 370 and imposed Section 144 on the district to pre-empt unrest, especially during Bakrid, Janmashtami and Independence Day.
Ramanathapuram: Between September 11 to 15, Section 144 was imposed to prevent conflicts during the death anniversary of Immanuel Sekaran, a freedom fighter, activist and INC member who had been killed on the 11th, 1957, in a caste conflict.
Nashik: The law was imposed from September 16 to 20, as preventive measures before public rallies by Prime Minister Narendra Modi and the former Chief Minister, Devendra Fadnavis. The use of drones and man-made flying objects was restricted.
Mumbai: On September 27, Sharad Pawar voluntarily appeared before the Enforcement Directorate (ED). To prohibit unrest by the NCP party members, Section 144 was imposed in areas outside the ED office and in the business district. On October 5th, Section 144 was imposed in the Aarey colony, where activists protested against the felling of trees.
Ayodhya: The law was imposed on October 14, even as the sensitive Ram Janmabhoomi issue inched closer towards a closure. UP, Jaipur and many parts of Delhi and Mumbai too were under the section to maintain calm
Hyderabad: On November 16th, before a ‘Bus Roko’ call demanding the merger of the Telangana State Road Transport Corporation (TSRTC) with the government was put out, Section 144 was imposed in all the Telengana depots on November 16, leading to the suspension of the call. From December 5th to 7th, the section was imposed to prevent unrest following gang rape and murder of a veterinary doctor. It was imposed on Vijaywada too for the same reason.
Bhopal: On November 10, the BJP objected to the installation of ex-Chief Minister Arjun Singh’s statue at a spot where Chandrashekhar Azad’s statue had once been located. Section 144 in some parts of the city postponed the installation.
Is Section 144 justified?
The imposition of the section is not justified in every case. It is applicable when it is thought to be efficacious in “being able to prevent some harmful consequences.”
In a 1970 case, the Supreme Court held that for a prohibitory or mandatory law, urgency is the only criteria that can justify an order.
As Justice Y V Chandrachud once said “Dissent is the safety valve of democracy. If dissent is not allowed, then the pressure cooker might burst.”