Section 144 CrPC Cannot Be Used As A Tool To Prevent Legitimate Expression Of Opinion: SC [Read Judgment]

In its judgment in Kashmir Lock Down case, the Supreme Court observed that the power under Section 144 of the Criminal Procedur cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights.

The Court said that provisions of Section 144, Cr.P.C. will only be applicable in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.

"As emergency does not shield the actions of Government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always", the bench observed thus while starting its discussion about the restrictions under Section 144 CrPC.

The bench comprising Justice NV Ramana, Justice R. Subhash Reddy and Justice BR Gavai summarised the principles on exercise of power under Section 144 CrPC thus:

• The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an "emergency" and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.

• The power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.

• An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order.

• While exercising the power under Section 144, Cr.P.C. the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure. 

• Repetitive orders under Section 144, Cr.P.C. would be an abuse of power.  

Section 144 CrPC Power exercisable also when there is an apprehension of danger.

One of the arguments raised on behalf of the petitioners was that such orders under Section 144 CrPC passed in mere anticipation or apprehension cannot be sustained in the eyes of law. Rejecting the same, the bench adverted to Babulal Parate case wherein it was held that 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. But the Court qualified it by saying that the 'danger' must be in the nature of 'emergency' and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.

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Cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights

On the concern expressed by Senior Advocate Kapil Sibal that in the future any State could pass such type of blanket restrictions, for example, to prevent opposition parties from contesting or participating in elections, the bench said:

" In this context, it is sufficient to note that the power under Section 144, Cr.P.C. cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights. Our Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144, Cr.P.C. unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger. It ought to be noted that provisions of Section 144, Cr.P.C. will only be applicable in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed [refer to Babulal Parate case (supra)]. It is enough to note that sufficient safeguards exist in Section 144, Cr.P.C., including the presence of judicial review challenging any abuse of power under the Section, to allay the apprehensions of the petitioner. "

Another contention raised was that 'law and order' is of a narrower ambit than 'public order' and the invocation of 'law and order' would justify a narrower set of restrictions under Section 144, Cr.P.C. On this, the bench, referring to various precedents, said:

"'law and order', 'public order' and 'security of State' are distinct legal standards and the Magistrate must tailor the restrictions depending on the nature of the situation. If two families quarrel over irrigation water, it might breach law and order, but in a situation where two communities fight over the same, the situation might transcend into a public order situation. However, it has to be noted that a similar approach cannot be taken to remedy the aforesaid two distinct situations. The Magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstances; the restrictions must be proportionate to the situation concerned."

Power should be used responsibly

The bench also observed that such an order can be passed against either a particular individual or the public in general. But it added that orders passed under Section 144, Cr.P.C. have direct consequences upon the fundamental rights of the public in general. It said:

"Such a power, if used in a casual and cavalier manner, would result in severe illegality. This power should be used responsibly, only as a measure to preserve law and order."

Existence of the power of judicial review is undeniable

On the question whether there can be judicial review of such orders, the bench said thus:

 It is true that we do not sit in appeal, however, the existence of the power of judicial review is undeniable. We are of the opinion that it is for the Magistrate and the State to make an informed judgement about the likely threat to public peace and law and 113 order. The State is best placed to make an assessment of threat to public peace and tranquility or law and order. However, the law requires them to state the material facts for invoking this power. This will enable judicial scrutiny and a verification of whether there are sufficient facts to justify the invocation of this power.

In a situation where fundamental rights of the citizens are being curtailed, the same cannot be done through an arbitrary exercise of power; rather it should be based on objective facts. The preventive/remedial measures under Section 144, Cr.P.C. should be based on the type of exigency, extent of territoriality, nature of restriction and the duration of the same. In a situation of urgency, the authority is required to satisfy itself of such material to base its opinion on for the immediate imposition of restrictions or measures which are preventive/remedial. However, if the authority is to consider imposition of restrictions over a larger territorial area or for a longer duration, the threshold requirement is relatively higher.

An order passed under Section 144, Cr.P.C. should be indicative of proper application of mind, which should be based on the 114 material facts and the remedy directed. Proper reasoning links the application of mind of the officer concerned, to the controversy involved and the conclusion reached. Orders passed mechanically or in a cryptic manner cannot be said to be orders passed in accordance with law.

Case name: Anuradha Bhasin v Union of India & Ghulam Nabi Azad v Union of India

Case No : WP(c) 1031/19, 1164/19

Coram : Justices N V Ramana, Surya Kant and B R Gavai

Counsel for Petitioners/Intervenors: Adv Vrinda Grover, Sr. Advocates Kapil Sibal, Huzefa Ahmadi, Dushyant Dave

Counsel for Respondents Attorney General K K Venugopal & Solicitor General Tushar Mehta

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