What is Section 144?

What is common to — an extreme heat wave in Bihar, a cold wave in Muzaffarpur, Internet shutdown in Kashmir, the anti-CAA protests in Delhi, Gurmeet Ram Rahim’s sentencing in Panchkula and COVID-19 prevention in Kangra?

The answer might surprise you a little. All these events had one common legal provision used: Section 144. The law against unlawful assembly or Section 144 is something that many of us have experienced first hand. But what exactly is it and how does it work? This episode breaks it down for you.

Show Notes

All clips and voices used in this podcast are owned by the original creators

Links to clips used in this episode —

• Sitaram Yechury on Section 144 imposed in Delhi – Bloomberg Quint – https://www.youtube.com/watch?v=49RpfMmegwE

Full Transcript of Episode 11

What is common to — an extreme heat wave in Bihar, a cold wave in Muzaffarpur, Internet shutdown in Kashmir, the anti-CAA protests in Delhi, Gurmeet Ram Rahim’s sentencing in Panchkula and COVID-19 prevention in Kangra ?

The answer might surprise you a little – all these events had one common legal provision used – Section 144.

[We hear news clips about the imposition of Section 144]

We have all heard it, and most of us have even experienced it first hand, but what exactly is Section 144? The law against “unlawful assembly”

Section 144 is a section of the Code of Criminal Procedure (CRPC) that empowers the Executive Magistrate of any State, territory or district to issue an order that prohibits the gathering of more than 4 people in one area. 

Let me make a small diversion. Ye CRPC kya hota hai?

India’s criminal justice system is divided into 2 categories – the substantive law which is the Indian Penal Code or IPC and the procedural law, which is the Code for Criminal procedure or CRPC.

The IPC is a set of laws that define different crimes and their punishment in India. The IPC came to force in India in 1862 under the British and has been modified over the years after our independence. Currently, it has 23 chapters and a total of 511 sections. 

So when someone in India is charged with a crime, the definition of that crime and its punishment is defined in the IPC.

Doosri taraf, the CRPC, is a procedural law, which helps in the implementation of the substantive law. So the CRPC tells different authorities how to implement the different laws defined in the IPC. The CRPC came into force in 1973, and currently has 484 sections which are divided into 37 chapters.

So take the example of theft (chori) – Theft is defined under section 378 in the IPC and its punishment is also listed there. But the procedure to carry out the judicial process for this crime is defined in the CRPC. How to investigate the crime, how to catch the criminal, how to produce the criminal in court, roles of the police, and the magistrate, etc are all in the CRPC.

Now, Back to Section 144

I told you that Section 144 empowers the Executive Magistrate of any State, territory or district to issue an order that prohibits the gathering of more than 4 people in one area. 

So who is this Executive Magistrate?

An Executive Magistrate is an officer appointed in every district and every metropolitan area in India under the CRPC. These officers cannot try any accused or pass verdicts. But what is important to understand in the case of section 144 is that the Executive Magistrate can pass orders restraining or preventing people from committing a particular act or preventing persons from entering an area. 

So the Executive Magistrate is authorised to use force against people. In plain language, they alone can disperse an “unlawful assembly”. Technically, the police are supposed to assist the Executive Magistrate and the Executive Magistrate can dictate to the police what kind of force – baton charge or tear gas or blank firing to use and also, how much force should be used. 

They can also seek the assistance of the Armed Forces to stop or disperse a riot.

[We hear some more news clips about Section 144 being imposed in Noida and Mumbai.]

So when does section 144 get imposed?

Section 144 is imposed in urgent cases of nuisance (avyavastha?), or to avoid an event that might cause harm to human life or property. 

A very common example we all know and hear about is political tension. Section 144 is often imposed in situations where a riot may break out. 

This could be because of a controversial verdict like the Ayodhya court verdict, or some new political action like the recent NRC / CAA law being passed, or an event that took place which caused massive outrage among the people like the trees cut at the Aarey forest in Mumbai for metro construction.

Recently, section 144 was also imposed in various cities of the country following the coronavirus outbreak. This was to avoid the spreading of the virus through contact.

Now what exactly happens when section 144 is imposed somewhere?

The most basic rule that is followed is that no one can gather in  groups of 4 or more people together. 

Also, there cannot be any movement of the public in the area. All educational institutions remain closed. 

Like I told you earlier, once section 144 is imposed, the executive magistrate then gets the power to disperse any crowd using as much force as required. Resisting this is counted as a punishable offense.

Under this section, the authorities also have the right to block internet access and phone networks. For example, during protests against the Citizenship Amendment Act, Internet services were suspended by the District Magistrate in Sambhal (सम्भाल), UP, under Section 144. 

Basically, this law can restrict some of your fundamental rights.

In certain cases, authorities can issue an order to restrict specific people and even a single individual under this section. However, no order passed under Section 144 can be imposed for more than 2 months. If necessary, the State government can extend this duration to 6 months, but no more. 

Violating section 144 could lead to a 3 year prison sentence and a fine. And because you are not supposed to gather in a group, every member of a group can be held responsible for a crime committed by the group. 

So does Section 144 and curfew mean the same thing?

Well, no, these are two separate orders. Though both are issued by a magistrate, their conditions are different. Section 144 restricts public gathering, but doesn’t ban it all together. However, a Curfew prohibits absolutely all public activity and it can be issued for an indefinite period. Most importantly, you need a prior approval from the local police in case you want to move out during curfew.

[We hear the voice of Sri Sitaram Yechury]

That was CPI(M) leader Sri Sitaram Yechury (सीताराम येचूरी) talking to Bloomberg Quint during the CAA / NRC protests.

What I have learnt is section 144 is imposed in India very often. On March 11 this year, our Home Ministry confirmed that Section 144 had been imposed 276 times in the last 3 years in Delhi. 

Think about it, this means, in one territory in India, section 144 has been issued close to twice a week for the last 3 years. Now imagine what the number must be like in the entire country.

In fact, because this is implemented locally in each territory, there is no accurate count of the number of times section 144 has been imposed in India!

So is section 144 a good thing or a bad thing?

I don’t think there is a simple answer to this question. 

Let’s start with the good. 

There have definitely been cases where Section 144 being imposed has been good and helped to save lives and property.

For example, In June 2019, Section 144 was imposed in Gaya, Bihar after 184 people died in a heatwave. People were not allowed to step out of their houses between 11am and 4pm. This helped save many lives!

More recently, different districts and cities in India have imposed Section 144 to prevent crowds after the outbreak of coronavirus and that has been a great measure to stop the spread of the virus. Listen to Vishwajit Rane, the health and industry minister of Goa, talking to Rajdeep Sardesai about the need to impose Section 144 to stop the spread of Coronavirus in Goa.

[We hear a news clip about Section 144 imposed in Goa]

But with the good comes the bad, and that was the case here as well. As much as section 144 was imposed to keep people indoors and safe from the pandemic, it was also used to disperse migrant workers and protestors. 

And the issues don’t stop here. Section 144 has been used for much more than the original intended use.

In parts of Kota in Rajasthan, over one lakh residents in different areas with a large population from minority communities have been living under Section 144 for over 27 years. 

It was imposed during communal violence in 1989 but residents in these areas claim that an official order was never issued for lifting the curfew after a District Collector extended implementation of Section 144 “till the next order”, which never came.

The situation is so bad that locals say that banks refuse to grant them loans and officials ignore their complaints because they live in these areas.

Similarly, in Ahmedabad, orders under Section 144 have been imposed continuously for 4 years, since 2016. When this was challenged in court, Ahmedabad police said in their defence that if they removed section 144, it would “lead to chaos in law and order situation in the city” and “there is always a requirement of maintaining law and order situation in the city”.

In 2016, the United Nations Human Rights Council – UNHRC passed a resolution jisme declare kiya gaya ki Internet access ek basic human right hai. 

Recently, in a case, the Kerala High Court also upheld the right to access the internet as a part of our fundamental rights. This view has been upheld by the Supreme Court also.

Inspite of all this, there have been a number of internet shutdowns in various states in India as a way to prevent the spread of rumours and fake news and to maintain public peace. 

The interesting thing in these cases is that these Internet shutdowns also are imposed through Section 144 as a preventative measure.

According to data from the website Internetshutdowns.in there have been 399 Internet shutdowns in India since 2012 and the longest one was in Jammu and Kashmir which ended in March this year after 213 days.

And like the saying goes, with great power, comes great responsibility. Section 144 gives a lot of people in the country a lot of power and many times we see that authorities are able to get away with a lot because of this law.

[We hear a news clip about the Supreme Court ruling on Section 144]

In January this year, our Supreme Court ruled that Section 144 cannot be used as a tool to prevent legitimate expression of opinion (राय की अभिव्यक्ति), grievance (शिकायत) or exercising democratic rights by citizens.

Orders passed under this section have direct consequences on the fundamental rights of the public and such power, if used in a casual manner, would result in severe illegality.

Our Constitution protects the expression of divergent views (भिन्न विचार), legitimate expressions (वैध भाव) and disapproval, and this cannot be the basis for invocation of Section 144 unless there is sufficient proof to show that there is likely to be an incitement to violence or threat to public safety or danger, said the court. And these conditions need to exist before and during the time that section 144 is imposed.

And it is mandatory that the State and the police authorities should have a complete and effective dispersement plan in place, before evicting any gathering by use of force from a particular place. 

To the common people, Section 144 sometimes makes little or no sense. When you use public transport, sit in a bus or train to go back home from work, you unintentionally end up violating prohibitory orders. 

Even though there were prohibitory orders in Noida, people watched movies at malls. Technically, this was also a violation of Section 144.

I don’t think anyone questions the fact that strict laws are needed in our country to deal with emergency situations, but with very limited judicial oversight over the executive branch, section 144 can be easily misused.

A law that was created in 1861, during the British Rule in India and was used repeatedly to stop protests by our freedom fighters during our freedom struggle, is now something commonly used in a free and democratic country, and that is something I believe we need to rethink.

While we continue to cling to this British era legacy, the Britishers themselves have gone on to modify it.

I hope this episode too has made you think about this subject and I hope you will go on and learn more about section 144 and its use in India. 

I’ll be back next week with a brand new episode of Maha Bharat.

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