Section 144 CrPC: What are the grounds to impose Restrictions?

"Section 144 CrPC" - this provision is now very familiar to people, thanks to its widespread
invocation by police forces across the country in order to contain the massive public protests
against the recently passed Citizenship Amendment Act.

The entire state of Uttar Pradesh with a population of 200 million was placed under Sec 144
curfew, as announced by UP DGP through Twitter. The Bengaluru Police Commissioner
justified Section 144 saying that fundamental rights can be curbed when 'inconvenience' is
caused to others.

Section 144 of CrPC gives power to a District Magistrate, a sub- divisional Magistrate or any
other Executive Magistrate on behalf of the State Government to issue an order to an
individual or the general public in a particular place or area to "abstain from a certain act" or
"to take certain order with respect to certain property in his possession or under his
management".

As per the Section, the order can be passed only "if such Magistrate considers", that the
direction is likely to prevent:
 obstruction, annoyance or injury to any person lawfully employed
 danger to human life, health or safety
 disturbance of the public tranquillity, or a riot or affray

This order can be passed against a particular individual or general public. The order can be
passed even ex-parte. So, can this power be exercised by the executive officer on a mere
subjective satisfaction regarding likelihood of danger?

Before getting to the answer of that question, it needs to be kept in mind that 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. Hence, the orders under Section 144 have to meet the test of "reasonable
restrictions" as per Article 19. To ascertain whether a restriction on liberties guaranteed under
Article 19 is reasonable or not, the Supreme Court has developed the "test of proportionality".
In the Constitution Bench decision in Modern Dental College case (2016), the SC held that
a law imposing restrictions will be treated as proportional if:
 it is meant to achieve a proper purpose, and
 if the measures taken to achieve such a purpose are rationally connected to the
purpose, and
 if such measures are necessary.

In K. S. Puttuswamy case (2017), the SC laid down a four-fold test to determine

proportionality:
(a) A measure restricting a right must have a legitimate goal (legitimate goal stage).
(b) It must be a suitable means of furthering this goal (suitability or rationale connection
stage).
(c) There must not be any less restrictive but equally effective alternative (necessity
stage).
(d) The measure must not have a disproportionate impact on the right holder (balancing
stage).

So, the legality of the orders passed under Section 144 CrPC will be tested on the basis of
these principles of 'reasonableness' and 'proportionality'. Senior Advocate Menaka
Guruswamy has observed in her research on Freedom to Assemble and Freedom of
Association that contradictory approach of Article 19 (1) (b) and (c) of the constitution and
section 144 of CrPC is a "reflection of a colonial legacy and the unquestioning adoption of
most of the provisions of the 1872 Code of Criminal Procedure by the contemporary Indian
State".

Mere likelihood of danger not a ground to invoke Sec.144

As held by the Supreme Court, mere apprehension of danger is not a sufficient ground to curb
citizens' rights by invoking Section 144 CrPC. There should be 'genuine' apprehension of
'imminent' danger and not mere 'likelihood' or 'tendency'.

In Babulal Parate v. State of Maharashtra (1961) case, the SC held that the power can be
used even in anticipation of danger. But it should be based on sufficient materials which
show that immediate prevention of certain acts is necessary to preserve public safety.
"The test laid down in the Section is not mere ‘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 where present danger exists but is exercisable also when there is an apprehension of
danger".

In Madhu Limaye v SDM (1970) case, the SC upheld the Constitutionality of Section 144
on the reasoning that it constituted a reasonable restriction 'in the interest of public order'.
However, the Court added that this power should be exercised only in emergent and urgent
situations: "The gist of action under S.144 is the urgency of the situation, its efficacy in the
likelihood of being able to prevent some harmful occurrences. As it is possible to act
absolutely and even ex parte it is obvious that the emergency must be sudden and the
consequences sufficiently grave".

The Court further observed in the judgment that "annoyance must assume sufficiently grave
proportions to bring the matter within interests of public order (under Sec 144)". The
Supreme Court in Re-Ramlila Maidan Incident case (2012) said: "In case of a mere
apprehension, without any material facts to indicate that the apprehension is imminent and
genuine, it may not be proper for the authorities to place such a restriction upon the rights of
the citizen."

As explained in In Re Ramlila Incident Case, the necessary prerequisites of the order under
Section 144 are:
1) It is an executive power vested in the officer so empowered;
2) There must exist sufficient ground for proceeding;
3) Immediate prevention or speedy remedy is desirable; and
4) An order, in writing, should be passed stating the material facts and be served the
same upon the concerned person.

In this case, the Court held that restriction imposed on the right to freedom of speech and
expression was unsupported by cogent reasons and material facts. The Court held the police
action on protesters to be illegal, after observing: "The police have failed to establish that a
situation had arisen where there was imminent need to intervene, having regard to the
sensitivity and perniciously perilous consequences that could have resulted, if such harsh
measures had not been taken forthwith".

The Court ordered disciplinary action against erring police officials, and compensation to
those who had suffered due to the police acts. So, the above decisions, when read along with
the doctrine of proportionality, lead to the conclusion that an order under Section 144 can be
imposed only if there are materials to show:
 that threat is immediate.
 that restrictions are necessary to prevent the immediate threat.

Further, the restrictions must be absolutely necessary, and should be as less invasive as
possible, proportionate to the danger. It means that if there are less restrictive means to avoid
the danger, they should be adopted. This also means that sweeping orders of prohibition,
passed only with the intention of suppressing public protests, are not legally sustainable.

The Supreme Court has also held in the cases of Shayara Bano v. Union of India and
Superintendent, Central Prison v. Ram Manohar Lohia, that a state action which is done
irrationally, or without adequate determining principle is manifestly arbitrary and also that
the State can only impose restrictions on the freedom of speech and expression if it indicates
a close link between speech and public order and the liability is on the State discharge burden
of proof along with evidence.