From UPSC perspective, the following things are important :
Prelims level : Sec. 144 of CRPC
Mains level : Section 144 : Circumstances of its use and abuse and SC's guidelines
In its order on Jammu and Kashmir the Supreme Court made the following points with regard to the use of Section 144 of the Code of Criminal Procedure (CrPC), 1973.
Key takeaways of the order
- Sec 144 cannot be used to suppress the legitimate expression of opinion or grievance, or the exercise of democratic rights
- When Sec 144 is imposed for reasons of apprehended danger, that danger must be an “emergency”.
- The imposition of Sec 144 must strike a balance between the rights of the individual and the concerns of the state.
- Powers under Sec 144 should be exercised in a reasonable and bona fide manner, and the order must state material facts in order to enable judicial review.
What is Section 144?
- Section 144 CrPC, a law retained from the colonial era, empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate specially empowered by the state government in this behalf to issue orders to prevent and address urgent cases of apprehended danger or nuisance.
- The magistrate has to pass a written order which may be directed against a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
- In emergency cases, the magistrate can pass these orders without prior notice to the individual against whom the order is directed.
What powers does the administration have under the provision?
- The magistrate can direct any person to abstain from a certain act or to take a certain order with respect to certain property in his possession or under his management.
- This usually includes restrictions on movement, carrying arms and from assembling unlawfully. It is generally believed that assembly of three or more people is prohibited under Section 144.
- However, it can be used to restrict even a single individual. Such an order is passed when the magistrate considers that it is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.
- However, no order passed under Section 144 can remain in force for more than two months from the date of the order, unless the state government considers it necessary.
- Even then, the total period cannot extend to more than six months.
Why is it criticised so often?
- The criticism is that it is too broad and the words of the section are wide enough to give absolute power to a magistrate that may be exercised unjustifiably.
- The immediate remedy against such an order is a revision application to the magistrate himself.
- An aggrieved individual can approach the High Court by filing a writ petition if his fundamental rights are at stake.
- However, fears exist that before the High Court intervenes, the rights could already have been infringed.