SCOPE OF SECTION 144
We all came to hear the news about section-144 during lockdown in corona .But what is section -144 which restricts the gathering of people ?Why is it imposed? What are the conditions or grounds on which Section 144 can be applied? Is it always necessary to apply section 144?Do the people have the right to move around here and there during the imposition of Section 144? There are many questions which always struck in the mind of people when they hear about the imposition of section 144. Lets discuss the scope of section 144 in brief.
What does section 144 say in layman language?
Power to issue order in urgent cases of nuisance of apprehended danger.
Section 144 generally speaks about the restrictions on gathering of people or on movement of people here and there. It is the order which can only be imposed by District Magistrate or Sub District Magistrate or any Magistrate, which has the power given by the state on this subject. Section-144 apply where there is a certain cause or there is a reason to believe that situation of apprehended Danger can be arise and to tackle the problem of unnecessary danger there is a need to impose section 144. Section-144 can be imposed in the specific areas where there is an apprehended danger or the reason to believe the same. According to the Law for the imposition of Section 144,The district magistrate has to give the application in writing describing the grounds for applying the section-144 in the area. But what are the conditions or grounds on which this section can be imposed by the magistrate.
The grounds on which section-144 can be imposed by the Magistrate-
Mainly the reasons to apply the section-144 is to prevent the imminent danger, obstruction or annoyance to any person or persons in a specified area or the reason of likeliness of occurrence of situation of riot or affray or any communicable disease like CORONAVIRUS which may spread from one person to another or any unlawful assembly which may create the situation of riot or affray due to which public health, Peace, Morality can disrupted by these unlawful assemblies. The main aim of this section is to secure the public tranquillity by applying this section. Now the question arises what is unlawful assembly and why is it restricted. Let’s discuss the grounds in brief.
During the imposition of section 144 in the area, the formation of unlawful assembly is a punishable offence. Now what is unlawful assembly? Unlawful Assembly is assembly of five or more persons if the common object of the persons composing that assembly is-
(1) Unlawful Assembly
(1) To overawe by criminal force, or show of criminal force,( the central or any state government or parliament or the legislature of any state),or any public servant in the exercise of the lawful power of such public servant or
(2) To resist the execution of any law, or of any legal process or
(3) To commit any mischief or criminal trespass, or other offences or
(4) By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property or to deprive any person, of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right or
(5) By means of criminal force, or show of criminal force, 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.
Unlawful assembly is mentioned in the section 141 of Indian Penal Code
(2) Riot
In the situations of riot ,the magistrate can impose section 144 in the whole district or in any area in which he is of the opinion that there may be the likelihood of occurrence of riot by the unlawful assembly. So to avoid this situation and to save the public from the consequences of riot the magistrate can order for the imposition of section 144 of the criminal procedure code.
Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. Rioting is mentioned in the section-146 of Indian Penal Code. Whoever is guilty of rioting shall be punished with the imprisonment of description for a term which may extend to two years or with fine or with both with the additional punishment of breaking the magistrate order during the imposition of section 144 Criminal procedure code.
(3) Affray
An Affray is another condition where the magistrate can order to impose the section 144 of criminal procedure code. Because sometimes lead to disruption of the public peace. But affray is a smaller offence compared to rioting.
When two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray. Whoever commits the affray shall be punished with imprisonment of either description for a term which may extend to one month or with fine may extend to one hundred rupees or with both.
(4) Annoyance
Annoyance may be either physical or mental. In the case of physical annoyance a certain degree of proximity between the object annoyed and the annoyance is necessary, but in the case of mental annoyance no question of proximity arises. But one thing must be kept in mind while dealing with the section-144 criminal procedure code that annoyance must be reasonably up to some extent and not imaginary. Annoyance must be likely to breach the peace of the people.
Punishment for breaching section 144 of code of criminal procedure
If any person or group of persons violates the section 144 imposed in the area, then he can be booked under the section 188 of the Indian Penal code and has to suffer the consequences of non obedience of the order imposed by the magistrate.
Section-188 (Indian Penal Code)
“Disobedience to the order promulgated by the public servant”
Under section 188(1) the person will be arrested by the police and kept under detention for some time for the disobedience and let off on bail. The punishment under the act can be extent to one month if he is convicted.
However,if the assembly has the potential to threaten the law and order situation or endanger the lives of other people, the police can book the violators under section 188(2) of Indian penal code.
The police can also impose a cash fine, ranging between Rs1200 and Rs 2500 on persons booked for violation of section 144.
Is the Section 144 constitutionally valid?
Generally , while the section 144 of the code of criminal procedure remains in force, The right mentioned in the article 19 i.e.to assemble peacefully and to form associations or union gets violated by the authorities in a lawful manner. Now due to this the question arises that is the section 144 constitutionally valid. To answer this question our Honourable Apex court has heard many numerous cases and explained the legitimacy and legal position of section 144.
(1) Madhu Limaye vs Sub Divisional Magistrate(1970)
The supreme court upheld the constitutionality of section 144 on the reasoning that it constituted a reasonable restriction in the interest of public order.
Hidayutallah,C.J., had stated that if applied properly the section is not unconstitutional and the possibility of it being abused is no ground for it being struck down. The court had also stated that
“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”.
(2) Babulal Parate vs State of Maharashtra(1961)
The court had stated that the power conferred by this section is exercisable not only where present danger exists, but is exercisable also when there is an apprehension of danger”. The magistrate must however, be satisfied that immediate prevention of the acts is necessary to counteract danger to public safety.
(3) In Puttaswamy Case(2018)
The court had held Test of Proportionality as a guarantee against arbitrary state action to ensure that the encroachment on the right is not disproportionate to the purpose of the law
The Supreme Court had laid down a fourfold test to determine proportionality:
(a) A measure restricting a right must have a legitimate goal(legitimate goal state).
(b) It must be a suitable means of furthering this goal(sustainability 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).
CONCLUSION
Section 144 is for the protection of the public morality, public peace. This section is arbitrary in nature and not discriminative of any article mentioned in the constitution if taken in a lawful and prescribed manner. As regarding its arbitrariness, The Magistrate has to fully satisfied that there is a risk or apprehension of risk of danger, annoyance to the public health which must be prevented. The imposition of this section is for the protection of the people not for the destruction of the people and it should always be imposed whenever necessary. Therefore, the public should also obey the order of the imposition of this section promulgated by the Magistrate in the specified area otherwise have to suffer the consequences. In a nutshell, Section 144 is of legal validity and to protect the people it must be imposed and nor otherwise.
References:
(Dhirajlal, 1860)
(Dhirajlal, 1860)
(BABULAL PARATE VS STATE OF MAHARASHTRA, 1961)
(MADHU LIMAYE vs Sub DIVISIONAL MAGISTRATE, 1971)
(K.S. PUTTASWAMY AND ANR V. UNION OF INDIA, 2017)
About the author-
This article is written by YASH MITTAL, 3rd year doing BBA LLB (H) from Uttaranchal university, LAW COLLEGE DEHRADUN
