There are some eventualities in the history of a nation where to secure the interest and security of

the country, to ensure public order, to prevent highly potential incitement to an offence and in the
larger public interest and sovereignty and integrity of India, it becomes necessary that the reasons to
prevent such eventualities are not reduced into writing as the same may defeat the very object of
taking such precautionary measures.

21. In this regard it is respectfully submitted that the order pinned under section were neither
overboard nor excessive. It is submitted that this Hon'ble court had duly upheld the power of the
government to impose Section 144 orders, in the entire district or public at large, when it is not
possible to distinguish between those whose conduct must be controlled and the whose conduct is
clear. It is submitted that the constitution bench of this Hon'ble court in the case of Babulal Parate
State of Maharashtra, reported in 1961) 3 SCR 423 : AIR 1961 SC 884, while upholding the
constitutional validity of the section 144 CRPC held as under

It seems to us that it would be extremely difficult for those who are in charge of law and order to
differentiate between members of the public and members of the two textile unions and therefore
the practical way in which the particular activities referred to in the order could be restrained or
restricted would be by making those restrictions applicable to the public generally.

The aforesaid dictum of this Hon'ble court was further upheld by a seven judge Constitution bench
of this Hon'ble court in the case of Madhu Limase v Sub-Divisional Magistrate, reported in (1970) 3
SCC 746 which while testing the correctness of the law laid down in Babulal Parate (Supra) held as
under

26. The effect of the order being in the interest of public order and the interests of the general
public, occasions may arise when it is not possible to distinguish between those whose conduct must
be controlled and those whose conduct is clear. As was pointed out in Babulal Parate case where
two rival trade unions crashed and it was difficult to say whether a person belonged to one of the
unions or to the general public, an order restricting the activities of the general public in the
particular area was justified.

We are of opinion that Section 144 is not unconstitutional properly applied and the fact that it may
be abused is no ground for striking it down. The remedy then is to question the exercise of poetry as
being outside the grant of the law."| [Emphasis Supplied)

Thus from the aforesaid it is evident that the argument of the petitioner/interveners that section
144 ought to have been imposed by the government against perpetrators of apprehended law &
order breach and ought not to have imposed restriction on the citizens and the same amounts to be
excessive and disproportionate, is completele and misconceived. The appeal intended to spread
violence was not made to a specific, identified group or class of people. In such circumstances there
were no discernible or manageable criteria through which an exercise could have been undertaken
by the government to segregate and/or differentiate as to whose conduct waS required to be
controlled and whose conduct was clear. Moreover, in peculiar situation in the State of Jak, such
restrictions were required even for the safety and security of vast majority of residents of State of
Jak

It is submitted that as pointed out above, this Hon'ble court in the case of Babulal Parate (Supra)
after discussing the entire law of United States, has clearly held as under:

25. The language of Section 144 is somewhat different. The test laid down in the section is not
merely likelihood or tendency the section sayS that the Magistrate must be satisfied that immediate
prevention of particular acts is necessary to counteract danger to public safety etc. The power
conferred by the section is exercisable not only when present danger exists but is exercisable also
when there is an apprehension of danger.

27. Whatever may be the position in the United States it seems to us clear that anticipatory action of
the kind permissible under Section 144 is not impermissible under clause (2 and 3) of Article 19.
Both in clause (2and in clause (3) power is given to the legislature to make laws place reasonable
restrictions on the exercise of the rights conferred by these clauses in the interest among other
things. of public order. Public order has to be maintained in advance in order to ensure it and
therefore, it is competent to a legislature to pass a law permitting an appropriate authority to take
anticipatory action or place anticipatory restrictions for particular kinds of acts in an emergency for
the purpose of maintaining public order.

28. But it is difficult to say that an anticipatory action taken by such an authority in an emergency
where danger to public order is genuine apprehended is anything other than an action done in the
discharge of the duty to maintain order. In such circumstances that could be the only mode of
discharging the duties.

28.It is respectfully submitted that as evident from the aforesaid dictum of this Hon'ble court, the
action contemplated under section 144 is preventive in nature and is not curative by any means. The
said action cannot be therefore based on any overt act but has to be based on the potential danger
which is sought to be averted in the interest of public order and in the interest of the general public.
Therefore the argument of the petitioners/interveners that the imposition of section 144 was based
on conjectural law and order situation, is completely untenable.

" The gist of action under Section 144 is the urgencH of the situation, its efficacy in the likelihood of
being able to prevent some harmful occurrences