Introduction
On 23rd May 2020, the commissioner of police Mumbai issued a gag order under Section 144 of Criminal Procedure Code, 1973 (the CrPC). The order called for a complete gag on the dissemination of information that was derogatory or discriminatory in nature. Further, the order also prohibited any person from criticizing government functionaries. Persons designated as “Admin” on all types of social media platform were shouldered with the obligation to report any such content that was against the order. However, the order faced several criticisms on question of being intrusive on the public right to speech and expression and right to hold an opposing opinion and criticize government functionaries.
This article aims at analysing the scope of Section 144 of the CrPC, whether the section grants absolute power to magistrate. Also to probe into the constitutionality of such gag order that extends to not only curbing the right under article 19 but also criminalizes the act of government criticism.
Analysis of Scope of Power u/ 144 of CrPC
Section 144 of the CrPC, 1973 grants the magistrate power to issue an order prohibitory nature in case of emergency or in cases where the magistrate under the circumstances is convinced that such prohibitory order is necessary for maintaining public peace and tranquillity or to prevent obstruction, annoyance, injury or danger to human life and public health and safety. Any order passed under section 144 of CrPC is temporary and remains in force not more than two months, however, it may be extended by the state government to a period extending not more than six months if the necessity of situation demands.
The global pandemic has given rise to a sceptic environment, Amidst this period of animosity, propagation of fake news via social media platform has ignited the feeling of anxiety and uncertainty among the general public. Often the false information act as a spark in gasoline that disturbs public peace and tranquillity. Apprehending, a situation that could harm public peace and order, the Mumbai police issued the order that aimed at not only merely regulating public action on the social media platforms but also declared criticism against government functionaries as crime.
The primary function of Section 144 is to maintain public peace and tranquillity, hence it empowers the magistrate to pass orders that abstains people to exercise some of their rights, which otherwise they could have practiced legally. In the present discussion, the order that was issued by the Mumbai police was criticized on one of the ground as being violative of right to freedom of speech and expression granted under Article 19 of the constitution of India. The freedom to speech and expression also includes the right to acquire information and disseminate the same.
The court in Union of India v. Assn for Democratic Reforms, highlighted that the right under Article 19 also implies the right to communicate through available media whether print or electronic or audio-visual. The freedom to speech and expression includes the right to disseminate information and hold an opinion. However, the right under Article 19(1) is not absolute and reasonable restrictions can be imposed under Article 19(2). It was rightly pointed out in S Rangarajan v. P JagjivanRam that any such restriction on Article 19(1) can be imposed only if the danger qualifies to have a proximate or direct nexus with the expression sought to be restricted’ and it should not be ‘remote, conjectural, and far-fetched’.
Similarly, with regards to Section 144 that holds the power to control citizen’s right granted under the constitution, any exercise of such power should be fair and not arbitrary. Section 144 should only be invoked when there is an actual threat to public safety. As held by the court in the Ramlila maidan incident, that the degree of threat involved should not be ‘ quandary, imaginary, or mere likely possible’. To invoke Section 144 and curb any right of citizens it should be ascertained that there is a real threat to public peace and tranquillity, that there is an immediate provocation, the executive power must not be exercised merely on imagination, and whims and fancies.
An order holding people liable for dissemination of information that according to government is incorrect, discriminatory or derogatory and further criminalizing criticism against government action is vague and too invasive upon the rights of the right-holder. The mere possibility of dissemination of inflammatory or derogatory information or an assumption that holding an opinion and genuine criticism against government could incite mistrust towards government functionaries is a feeble reason to invoke section 144. Further, in the Ramlila maidan incident case it was also held that section 144 can only be used in a situation that demands immediate prevention or a speedy remedy. The section must not be used for dangers which are foreseeable, but only when it poses an imminent danger.
Order & the Test of Proportionality
In the recent apex court judgment in the Anuradha Bhasin v. Union of India, the Hon’ble court observed that it is the duty of magistrate to balance the restrictions juxtaposed with the rights of citizens on the scale of the principle of proportionality. In the K.S. Puttaswamy case, the proportionality test was prescribed to qualify any action as reasonable, just and fair. It was decided that firstly, any such act must be sanctioned by law. Secondly, the act should have a legitimate aim, thirdly, there should be nexus between the object and the law, any such interference must be proportionate and fourthly, there must not be any less restrictive measure available, that is the act must be necessary.
In the Ramlila maidan case, the court clarified that orders under Section 144 are prohibitive and not merely restrictive, the threshold of prohibitive orders is wider, hence it is sine qua non that a ‘lesser restrictive alternative’ must be searched. The order in the present discussion is disproportionate and intrusive. The reasons cited in the order to protect people from fake news does not prima facie presents a situation of emergency or urgency to issue an order that curtails citizen’s right to speech and expression and further their right to have an opposite opinion towards government functionaries. In the case of State of Karnataka v Praveen Bhai Thogadia, the court directed that action must be taken against law-breakers and not innocent citizens. In any circumstances, an unmitigated exercise of executive power under Section 144 is against the principle of democracy.
In the recent time of the pandemic, while the entire nation is at a halt, the feeling of uncertainty has been the defining image of general public. An order thwarting people’s right to hold an opinion and criticise government functionaries is excessive. Such prohibition is against the principle of democracy and hence is out of the scope of Section 144 of CrPC.
In Madhu Limaye v. SDM Monghyr, the court made it noticeable that ‘urgency’ should be the criteria to resort to section 144, CrPC. It was accentuated in the case of Lohia v VS Sundaram, that every citizen has right to express his grievances either in public or private forum and ask for redress, such right should not be arbitrarily curtailed. It was reminded by the Hon’ble court that the power of Magistrate under Section 144, CrPC is extraordinary which enables him to suspend lawful rights of the public, therefore any such order should not be issued on an illegal assumption or on a pretended apprehension of danger to the public peace.
Conclusion
In light of the above discussion, it is also important to note that the punishment for violation of order are booked in Section 188 of the Indian Penal Code, 1860. Section 188 is a cognisable and bailable offence as per the first schedule of CrPC. However, in accordance to Section 195 of CrPCthe court cannot take cognizance of any punishment under section 172 to section 188 of IPC unless a complaint in writing is given to the court by a concerned public authority.
In the case of Jeevanandham v. State, the legislative intent behind the provision was explained, in order to prevent an individual or group of persons from facing unnecessary criminal prosecution upon insufficient ground and further to save the time of criminal courts. However, in the present situation of pandemic, the given procedure is in conflict. A PIL titled Vikram Singh v. Union of India was filled that highlighted the above conflict but was dismissed by the Supreme court.
After the 1992-1993 communal violence broke in the Mumbai city, prohibitory orders in the city have been in place at several instances. Lately, such orders have been stringently issued to prevent Anti-CAA protests. A similar prohibition was ordered that denied the queer pride march in the month of January, 2020. The recent trend of an unqualified use of Section 144 has to be kept in check. Such restriction under the order must be imposed judicially and with utmost diligence.
The concept of Rule of Law must be the torchbearer in regulating the scope of power under Section 144, CrPC. In the landmark judgement of ADM Jabalpur v. Shivkant Shukla, in the year 1977 Hon’ble justice H.R. Khanna mentioned that the principle of Rule of Law seeks to strike a balance between opposing notions of individual liberty and public order and the two notions could only be harmonised by adhering to the principle of Rule of Law. Government functionaries must stick to the rules laid down by the constitution.
Law as a norm limits the power of government over citizen and of a citizen over his fellow citizen. The liberties granted to citizen should not be exploited or mistreated. Section 144 does not provide unbridled power to the magistrate, the strings of such power is governed by the principle of Rule of law and must qualify the test of proportionality. Therefore, Section 144, must not be unambiguously used to surpass the constitutionally guaranteed rights.
About the Author: Srishty [2018-23] is pursuing B.A.LL.B from National University of Study and Research in law, Ranchi.
Criminal Law Research & Review 