Reasoning out restrictions
Article 19(1) of the Indian Constitution provides for freedom to assemble peacefully and without arms. Section 144 of CrPC is provided to prevent and address urgent cases of apprehended danger or nuisance. Without diluting these words and through Court-observed meaning of the same, there is no scope left for the government to arbitrarily abuse the law. Yet, the prevalence of the same is quite unfortunate for democracy. Karnataka High Court's declaration of the order passed by the Bengaluru City Police Commissioner imposing Section 144 of the Code of Civil Procedure from December 19-21, 2019 as illegal has many takeaways. The order was issued in the wake of protests against the Citizenship Amendment Act which spiralled into a countrywide movement. The December 18 order, in the court's view, did not stand judicial scrutiny as it failed to comply by the parameters placed by the Supreme Court in the cases of Anuradha Bhasin v. Union of India and Ramlila Maidan v. Union of India. The court was of the opinion that as per the precedent set by the aforementioned cases, a formation of opinion is mandatory before issuing an order under Section 144. The Section 144 order issued by the Police Commissioner — acting as the District Magistrate — had effectively dismissed all permissions for holding rallies and protests. The court simply cited that the DM is expected to form an opinion citing reasons in his order for imposing Section 144 and cannot simply act based on others' recommendation as was done by the City Police Commissioner who, in the said case, only referred to recommendations made by eight DCPs. The lack of independent application of mind by the DM was perhaps where the court found it mandatory to pronounce the order as illegal. The court elaborated that the reasons cited by the DM should further satisfy the need for such prohibitory orders. Karnataka High Court's order may be instrumental in strengthening subsequent arguments questioning arbitrary use of Section 144 across the country. As evident in the past months, Section 144 has been frequently utilised in curbing protests. It has paved the way for the state to detain scores of lawyers, activists, academics and students on the pretext of exercising their fundamental right to peaceful protest despite the state-imposed curfew. Given the fact that Section 144 confers the District Magistrate with the power to take away a person's fundamental rights, it ought to carry a valid and thorough reason for the same. It simply cannot be based on the whims of the executive. Mere proclamation of an imminent riot is no cause for issuing prohibitory orders when the ground situation indicates no such violent escalation. While one court could find the orders to be illegal and therefore mere abuse of power to curb dissent, it is expected that more courts will follow suit and painstakingly assess the validity of prohibitory orders under the garb of Section 144 issued across the country. In the Ramlila Maidan case, the court had held that Section 144 can be used only in grave circumstances for maintenance of public peace, noting that the emergency must be sudden and the consequences sufficiently grave. It had further stated that material facts and reasons are to be recorded.
Judicious use of Section 144 is mandated since it can be challenged in the court. But here lies an inherent flaw. While prohibitory orders under Section 144 come instantly into effect, quashing any protests or rallies being held or to be held, it is disadvantageous on multiple fronts. Not only does such an order overrule previously granted permissions for holding rallies or protests under the due process but even the hearing for judicial scrutiny is scheduled days following the imposition of the order. By the time the hearing for the same commences, protests have been quashed and authority has prevailed in curbing dissent. If today, the Karnataka High Court found the December 18 order to be illegal, there is very little to remedy the wrong done in that period in time. It means that the city police curbing protests was illegal throughout. Many a time, it may make irreparable damage and the hearing happening much after is redundant; serving only for future arguments. The Bengaluru order is a case in point. It would be prudent on the issuing authority's part to be mindful in issuing prohibitory orders under Section 144 as reasonable restrictions to fundamental rights do involve reason. Recording material facts and reasons would only serve the fulfilment of legal obligations when applying a law that has stood the test of time — surviving judicial scrutiny on several accounts. While carefully assessing the situation and issuing prohibitory orders is desired, expedited judicial scrutiny would greatly serve the public interest.