“The object of Section 144 of the Criminal Procedure Code is not to restrict the freedom of a citizen but is to abstain persons from the immediate danger of breach of peace”. Explain.

Question: “The object of Section 144 of the Criminal Procedure Code is not to restrict the freedom of a citizen but is to abstain persons from the immediate danger of breach of peace”. Explain. (UPCJ 2018)

Find the answer to the mains question only on Legal Bites. [“The object of Section 144 of the Criminal Procedure Code is not to restrict the freedom of a citizen but is to abstain persons from the immediate danger of breach of peace”. Explain.]

Answer

Ever-expanding horizons of civil liberties are an essential facet of a democratic setup. Freedom of speech being one such civil liberty is the bulwark of a democratic government which is essential for the proper functioning of a democratic process. It finds its basis in Liberty. First Amendment to US Constitution mentions civil liberties-freedom of speech and press in the American Bill of Rights without any express limitations.

Therefore, it is capable of being liberally constructed. However, due to its wide interpretation, US Supreme Court came up with the doctrine of ‘balancing of Interests i.e. free speech is an important fundamental right but at the same time, Constitution is not unmindful of other important interests like Public Order.

For a constitutional Government to survive, it shall have the powers to protect itself from unlawful conduct and against incitements to commit such unlawful acts. Freedom of speech and expression under Article 19(1)(a) of the Constitution of India does not comprehend to speak anything at any time.

The amplitude of these fundamental rights is not unlimited rather it can be curtailed by imposing reasonable restrictions by the State under Article 19(2) of the Constitution of India, on the grounds of interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency, morality, contempt of court, defamation or incitement to an offense. Liberty is an inherent constitutional concept mentioned in the Preamble but this liberty is not absolute in nature otherwise these freedoms would result in anarchy and disorder.

In a similar way, the restrictions upon a person’s constitutional rights under Section 144 Code of Criminal Procedure, 1908 (hereinafter CrPC) find its resemblance from the ‘Balancing of Interests’ approach derived from Roscoe Pound’s theories of Social Engineering –for the system to work properly, various interests have to be maintained.

Section 144 CrPC furthers the principle enunciated under Article 19(2) and here Magistrate can direct any person to abstain from a certain act 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 tranquillity, or a riot, of an affray.

Section 144 enables to maintain public peace. It can be invoked only in urgent cases of nuisance or apprehended danger. It empowers to issue prohibitory orders restraining citizens from doing certain acts but at the same time in order to control the abuse of this power several safeguards such as prior inquiry, a reasoned order, setting out material facts, etc. are required.

In the case of Re-Ramlila Maidan Incident v. Home Secretary And Ors (2012 5 SCC 1), it was held 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. 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 held that Disturbances of public tranquillity, riots, and affray lead to public disorder and shall be prevented before their actual happening as they are dangerous to human life, health, and safety.

The aim of this section is to provide the power to free society from the menace of serious disturbances of a grave character. This section is applicable against those who attempt to prevent the exercise of legal rights by others or imperil public safety and health. If that be so the matter must fall within the restrictions that the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public. However, that annoyance must assume sufficiently grave proportions to bring the matter within the interests of public order.

The constitutional validity of Section 144 was analyzed for the first time in the case of Babulal Parate v. State of Maharashtra [(1961) 3 SCR 423].where the issue was whether Section 144 was an encroachment upon the rights under Articles 19(1)(a) and 19(1)(b)?

Hon’ble Supreme Court held that Public order has to be maintained at all times, particularly prior to any event and, therefore, it is competent for the legislature to pass a law permitting the appropriate authority to take anticipatory action or to place anticipatory restrictions upon particular kind of acts in an emergency for the purpose of maintaining public order.

In the recent case of Anuradha Bhasin v. Union of India(AIR 2020 SC 1308) a three Judges Bench, Hon’ble Mr. Justice N.V Ramana held that where Court was deciding the legality of internet shutdown in the State of Jammu and Kashmir held that the power under Section 144 is remedial as well as preventive exercisable in the cases of present danger and also when there is an apprehension of such danger, but at the same time, it cannot be used to suppress the legitimate expression of opinion.

Any of the democratic rights and the order shall be passed relying upon material facts, it should be reasonable and passed by application of mind and order of such restriction shall be based upon the principle of proportionality as the fundamental rights of an individual cannot be taken away by the arbitrary exercise of powers and repetitive orders of Section 144 would amount abuse of powers.

---

Important Mains/Long Questions for Judiciary, APO & University Exams

1. CRPC Mains Questions Series Part I: Important Questions
2. CRPC Mains Questions Series Part II: Important Questions
3. CRPC Mains Questions Series Part III: Important Questions
4. CRPC Mains Questions Series Part IV: Important Questions
5. CRPC Mains Questions Series Part V: Important Questions
6. CRPC Mains Questions Series Part VI: Important Questions
7. CRPC Mains Questions Series Part VII: Important Questions
8. CRPC Mains Questions Series Part VIII: Important Questions
9. CRPC Mains Questions Series Part IX: Important Questio
10. CRPC Mains Questions Series Part X: Important Questions
11. CRPC Mains Questions Series Part XI: Important Questions