When the law prevailing in system for the welfare of the citizen and for the maintenance of the peace in the society are being used in a manner that the genuine and responsible citizen are being affected then their is need for the lawmakers to question themselves as well as the authority which are acting in some or another manner as a hindrance to development of the country.
Today this question is prevalent in the country as section 144 of CrPC which was protecting shield against the violent assembly and any mass violence is used by the police in name only, for it imposition and it’s seen that the authority acts normally to impose these prohibitory orders in any part even though there is peaceful procession.
Section 144 of crpc is a colonial era law. It was observed in the British period that this law was used to suppress the protest of the nationalists by the authorities .This section empowers certain functionaries to issue orders to prevent and address urgent cases of apprehended danger or nuisance. In emergency cases, the magistrate can pass these orders without prior notice to individual against whom the order is directed. Now the imposition of this section majorly shows one of the important aspect that is internal security.
Section 144 was imposed between December 23-31, the Delhi Police issued five orders under section 144 of the Criminal Procedure Code (CrPC), covering the capital’s most well-known landmarks – Rashtrapati Bhavan, Parliament House, India Gate, Rajpath as well as the PM’s house. Each one of those orders was the same – all of them prohibited the “holding of any public meeting”, the “assembly of five or more persons” as well as the carrying of arms, banners and placards, or the shouting of slogans in these areas.
Now this raises an alarming question to everyone that whether the expression of opinion provided under article 19(1)(a) can be imposed by the government any time under reasonable restriction so as to suppress opinion of people which was seen in the areas of Delhi where students, well known writers ,philosophers and teachers of many university were peacefully protesting against the citizen amendment bill 2019 and the internet was shutdown during this time.
There is a big question to government, police authorities or any central forces that what is the determinable factor to assert that violence has erupted, because if we see from one aspect raising question over matter by people is their right which constitution gives them.
The authority should differentiate between actual offender and citizen who are expressing their thought peacefully. Now there are the instances where implication of section 144 was necessary to prevent violence and disharmony, like in Ayodha case it was imposed by District Magistrate Anuj Kumar Jha who said, “The order has been issued considering safety and security of Ayodhya and those visiting here as Govt’s paramount concerns.” He added,”I must add that already there is another order in force since 31.08.2019 covering aspects of unlawful assemblies and undesirable activities. The order dated 12.10.2019 has been issued to cover a couple of points which were not there in the earlier order.”
Hence, there is very thin line between using it for the welfare of citizens or harassing the citizens by curbing their constitutional rights.
Even in various parts of Uttar Pradesh and Assam section 144 was imposed because of the sudden violent clashes between the police and protesters. In the petition of Anuradha Basin Vs Union Of India the Hon’ble Supreme Court has answered many question relating to section 144 in which bench said that, “As emergency does not shield the actions of Government completely; disagreement does not justify destabilization; the beacon of rule of law shines always.” It will thus appear that just as “public order” in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting “security of State”, “law and order” also comprehends disorders of less gravity than those affecting “public order”. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression “maintenance of law and order” the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.”
This Court therein held that a mere disturbance of law and order leading to disorder may not necessarily lead to a breach of public order. The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application.
Disturbances of public tranquility, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to be abated and prevented.
The court also established an important distinction between “public order” and “law and order” is a fine one, but nevertheless clear. A restriction imposed with “law and order” in mind would be least intruding into the guaranteed freedom while “public order” may qualify for a greater degree of restriction since public order is a matter of even greater social concern.
The court also gives its emphasis on the doctrine of proportionality in which it mentioned that there has to be a balance and proportionality between the right and restriction on the one hand, and the right and duty, on the other. In this context, the perception of the officer recording the desired/contemplated satisfaction has to be reasonable, least invasive and bonafide. The restraint has to be reasonable and further must be minimal. Such restraint should not be allowed to exceed the constraints of the particular situation either in nature or in duration.
In my opinion the intervention of Supreme Court in this matter clearly shows a hope that judiciary is above any ideology and it is always standing their for the protection of the citizens and also their liberty to express their opinion. Also, the Supreme Court has put emphasis on the fact that no individual expressing his thought in a peaceful manner can be a victim of the suppression of the authority .
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