New Delhi, Jan 11 (IANS) Section 144 of the Code of Criminal Procedure (CrPC), which prohibits assembly of four or more people, enables the state to take preventive measures to deal with imminent threats to public peace. This section is also imposed to clamp down on protests in highly sensitive areas, especially in the area around Parliament when it is in session.
The Section was extensively used in the erstwhile state of Jammu and Kashmir after the revocation of the provisions of Article 370, which gave special status to the state.
A bench headed Justice N.V. Ramana noted this power (Section 144) should be used responsibly, only as a measure to preserve law and order, and with a strong reason supporting its implementation.
“The order is open to judicial review, so that any person aggrieved by such an action can always approach the appropriate forum and challenge it. But, the aforesaid means of judicial review will stand crippled if the order itself is unreasoned or un-notified,” the bench said, citing orders passed under the section directly impact the fundamental rights of the people.
“Repetitive orders under Section 144 would be an abuse of power”, added the court.
The court observed that the order passed under the Section should be indicative of proper application of mind, which should be based on the material facts and the remedy directed. “Proper reasoning links the application of mind of the officer concerned, to the controversy involved and the conclusion reached. Orders passed mechanically or in a cryptic manner cannot be said to be orders passed in accordance with law,” said the court.
The court said this Section cannot be used to crush a grievance and gag legitimate expression of opinion, which is integral to the exercise of democratic rights. “An order passed under Section 144, CrPC should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order”, observed the court.
The apex court has also cautioned the magistrate on the exercise of this section. “The Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure.”
The apex court observed the order enforcing restriction on the region failed to explain the anticipated threat to law and order, to prevent any loss of life, limb and property, as argued by the Jammu and Kashmir administration.