This article has been written by Ritushree Rathi, a 3rd-year law student. This article contains the analysis of Section 144 under chapter X of CrPC in times of novel coronavirus pandemic along with the basic differences among ‘Section 144’, ‘Lockdown’ and ‘Curfew’ which are usually considered to be somewhat similar at times. This article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders)
Table of Contents
Introduction
Amidst the Christmas celebrations in December 2019, when India was already brawling with widespread and visually visible anti-CAA protests, an invisible disaster was lurking around the corners of India. That invisible virus, which was later named “COVID-19”, or as President Trump called “China Virus” (because of its origin in Wuhan, a city in the Hubei province of China), didn’t take long to become a serious concern not only in India but across the Globe. And by mid-2020, the infectious nature of the disease made it steadily turned into a huge pandemic in our beloved motherland, INDIA. All the more, even in 2021, this globally spreading highly transmissible virus is still on the verge of shaking India and its economy.
Even though the COVID-19 virus advanced to global upsurge, with India now being the second most highly affected Country, our Indian Government, from the beginning itself, under the guidance and directions of Prime Minister Narendra Modi and the World Health Organization (WHO) has very courageously taken all the onerous actions to detect, treat and reduce the transmission of the virus. And actually, the government is until now trying its best to take all the effective steps so that we could win by successfully flattening the COVID-19 curve as early as possible.
Preventive and precautionary measures
The various adopted preventive measures to restrict the community spread of ‘coronavirus’ includes heavy screening, suspension of Visas, mandatory quarantining of incoming national/international travelers and the most challenging and crucial step was the announcement of lockdown by PM Narendra Modi in every state of India on the evening of 24 March 2020, whereby, all kinds of social, political, religious, educational, cultural, entertainment, sports, and other non-essential activities were restricted. Thus, all the schools, colleges, libraries, coaching institutes, gymnasiums, malls, clubs, hotels, restaurants, community halls, temples, mosques, parks, etc. were closed except the very essential services like hospitals, pharmacies, etc. This was further followed by several linear unlocks wherein, relaxations were gradually granted to the people.
Apart from Lockdown, the government took another proactive step to impose Section 144 of the Code of Criminal Procedure in most of the COVID hit states of India to curb COVID-19 impact. Section 144 in itself is quite a good legal provision to adopt as a means to normalize the existing abnormal conditions in an area.
Detail analysis : Section 144 under Code of Criminal Procedure, 1973
What is the Code of Criminal Procedure
The Code of Criminal Procedure (CrPC) is the main legislation that covers the procedures for the administration of substantive criminal law in India. At present, it consists of 484 sections divided into 37 chapters (among which Section 144 deals with the power to issue orders in urgent cases of nuisance or apprehended danger), 2 schedules, and 56 forms.
What is Section 144
Section 144 of the Code of Criminal Procedure is the most utilitarian and frequently used section. Empowered Magistrates are conferred with great powers under this particular section basically to issue orders in urgent cases of either nuisance or apprehended danger. Here, nuisance or apprehended danger in a way signifies the situations which either create or contains the potential to create an atmosphere of unrest among people in a society or to cause danger to public health, peace, or safety. Authorities are empowered under this section to bar the assembly of 5 or more people in a given jurisdiction or a specific area which demands the urgency to impose the particular section. And the very urgency of the case even demands to lay aside the formalities and preliminaries usually required for the making of an order. An order under this section can only be passed by specified classes of Magistrates when in their opinion there is sufficient ground for proceedings under the section and immediate prevention or speedy remedy is desirable. And an order under this Section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
In Gulam Abbas & Ors v/s State of U.P. & Ors, it was held that an order issued under Section 144 is essentially an executive order which is passed in performance of an executive function where no dispute as to any rights between rival parties is adjudicated but merely an order-preserving peace is made and as such it will be amenable to writ jurisdiction either under Article 32 or under Article 226 of the Constitution if it violates or infringes any fundamental right.
Who can proclaim under Section 144
- District Magistrate
- Sub-Divisional Magistrate
- Any other Executive Magistrate specially empowered by the State Government on this behalf.
What powers do the authorities have under this provision
When there is sufficient ground for proceeding under this section and immediate prevention and speedy remedy is desirable, the empowered Magistrates, may by a written order direct any person to abstain from a certain act; or to take certain order with respect to certain property in his possession or under his management.
An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex-parte.
The order passed by such Magistrates does not place restrictions only on movement but may also include restrictions on forming assemblies unlawfully or handling or transporting any kind of weapons, arms, access to internet services, etc. according to the requirement of the situation.
Any Magistrate either by himself or by any Magistrate subordinate to him or by his predecessor-in-office rescind or alter any order made under this section either on his own motion or on the application of any aggrieved person.
Similarly, the State Government may also rescind or alter any order made by it in connection with the extension of validity/duration of Section 144 under the proviso to sub-section (4) of the same section either on its own motion or on the application of any person aggrieved.
What are the grounds for the application of Section 144
The grounds for making the order are that, in the opinion of the Magistrate, such direction is either likely to prevent or tends to prevent the following:-
Obstruction
The Magistrate must ensure that passing of such order under Section 144 is genuinely required to prevent the disobedience as to any passed orders like public orders, courts orders, or government orders, etc., or to prevent any activity which is hindering or interfering with the law and order in any circumstances. Example –Restrictions under Section 144 were imposed in Ayodhya in 2019, in the wake of a sensitive Ram Janmabhoomi – Babri Masjid land dispute case hearing in the Supreme Court.
Annoyance
The Magistrate may pass an order under this section to prevent such kind of situation or particular activity which creates or tends to create an atmosphere of hatred or violence among the people in the society, as a result of which law, order, and peace is likely to be disturbed automatically or otherwise. And the section covers both types of annoyances whether it be a physical annoyance or mental annoyance.
Injury to any person lawfully employed
For the imposition of Section 144 based on this ground, the injury must be caused or inflicted to the persons who are engaged in the performance of their assigned duties under lawful employment. And the requirement of the situation is just that any sort of violence must be used against a lawfully employed person which creates or tends to create an imbalanced situation of law and order and it does not matter whether the injury caused is normal or grievous.
Danger to human life, health, or safety
The Magistrate must ensure that there is a great urgency to impose the particular section to timely prevent the high risk of damage to public health or safety. Urgency must be such, that if not handled promptly, it would result in a huge disaster very soon. Example – Imposition of Section 144 in the recent times of COVID-19 Pandemic.
Disturbance of the public tranquillity
Disturbance of public tranquillity can be referred to in a situation where any kind of activity or offense causes the disturbance of public order and peace in society. The Magistrate must ensure that the particular activity/offense is against the interest of society at large and it is necessary to impose Section 144 with a view to secure public safety by maintaining public peace and tranquillity. Example – Imposition of Section 144 during Anti-CAA protests in December 2019.
Riot
It is the situation that causes civil unrest and usually shows sudden and provocative behavior. The Magistrate must ensure that imposition of Section 144 is necessary to prevent the force or violence used by the members consisting of unlawful assembly. Example – Ahead of Supreme Court’s Ayodhya verdict, on 13 November 2019, Section 144 was imposed in UP, Jaipur, and several parts of New Delhi and Mumbai to prevent possible riots.
Affray
‘Affray’ signifies the threat of violence, which is more physical rather than just verbal. Under this ground, Magistrate must ensure that Section 144 is necessary to be imposed to prevent the activities which are causing a sense of fear or terror among the public in order to restore peace among the members of the society.
The principle which must be borne in mind before the application of Section 144 has been explained in the case of Manzur Hasan & Ors. v/s Muhammad Zaman & Ors –
- The power must be used in urgent situations for the purpose of maintaining public peace and tranquillity.
- Where there is a conflict between public interest and private rights, public interest has to be given priority and for that reason, private rights may be temporarily set aside.
- Under Section 144, the question of title to properties or entitlements to rights or disputes of civil nature are not open for adjudication in a proceeding.
- The consideration should be made for the large section of the community and should not be that restriction that would affect only a minor section of the community.
These principles were further approved in the case of Shaik Piru Bux v/s Kalandi Pati.
What is the duration of Section 144
An order passed under Section 144 cannot remain in force for a period of more than two months from the date on which such an order was passed. But under the state government’s discretion, the time period of two months can be extended to a maximum of six months from the date of expiry of such initial order.
Role of Section 144 amid the covid-19 outbreak
Currently, when the whole of India is engulfed with the COVID-19 pandemic, Section 144 of CrPC has emerged out as a preventive measure in the context of public health and safety as it has remarkably contributed to bringing down the communicability of COVID-19 cautiously.
Section 144 has been imposed in various cities of different states to control the spread of coronavirus disease and as a result of which it has gradually become a great topic of discussion among the people. Some of the states in which the particular section has been imposed are Maharashtra, Rajasthan, Madhya Pradesh, Uttar Pradesh, Orissa, Chhattisgarh, Tamil Nadu, etc.
Examples :
Rajasthan – The State Government imposed prohibitory orders under Section 144 in 11 districts including Jaipur, Jodhpur, Kota, Bikaner, Udaipur, etc. Chief Minister Ashok Gehlot said the decision has been taken in the public interest.
Goa – The Goa government imposed Section 144 of the Code of Criminal Procedure ahead of the festivals of Holi, Shab-e-Barat, Easter, and Eid, to prevent COVID-19 cases, etc.
Why Section 144
As we are all aware that COVID-19 has proved to be a very deadly and fast-spreading virus, for the prevention of which it has become very necessary to limit or control the movement of the public anyhow. And Section 144 of the Code of Criminal Procedure is undoubtedly an excellent provision in this respect because it confers very great power on empowered Magistrates through which they are enabled to prohibit public gatherings.
Section 144 is basically imposed in a given region/area in situations of emergency, particularly in cases of nuisance or perceived danger of some event that has the potential to create a troubling situation or result in harmful damage to human lives or property. COVID-19 sadly falls under the exact situation.
With the aim of defeating covid-19, Section 144 is brought into force with the inclusion of the following restrictions in different states of India
- Prohibits the presence or movement of one or more persons in public places and also puts restrictions on gatherings of any sort anywhere, without the mask on the face of individuals. An order also directs to follow social distancing norms (minimum of 6 feet of distance) at all times.
- Prohibits the public gatherings in amenities including swimming pools, gymnasiums, and party or gathering halls in apartments and residential complexes.
- Ban on every kind of political rallies, unauthorized protests, demonstrations, and group prayers, etc.
- All social or religious functions are prohibited. However, the government of individual states has fixed the particular number for people who in total can be present to attend a funeral or wedding functions subject to certain conditions.
- All kinds of essential commodities/ services/ shops/ business establishments like grocery, dairy, fruits and vegetable stores, etc., are to be operated within a specified time period only while ensuring that proper precautions are being taken to restrict the spread of coronavirus, like fulfilling the process of sanitization, ensuring social distancing norms, etc.
- A maximum of four persons including a driver in the four-wheelers is allowed to be seated at a time.
- A limited number of people (probably approx. 50% of the total space) are to be allowed to enter cinema halls, restaurants, etc. while taking proper precautions like maintaining social distancing norms and use of a proper mask for covering the face.
- Order contains warnings of actions against people not following COVID-19 protocols (like proper social distancing and covering of face through masks, etc.)
Latest Guidelines as per the Supreme Court Order
Supreme Court, in its order on Jammu and Kashmir on January 10, 2020, made the following points with regard to the use of Section 144 of the Code of Criminal Procedure, 1973-
- Section 144 cannot be used to suppress the legitimate expression of opinion or grievance, or the exercise of democratic rights.
- When Section 144 is imposed for reasons of apprehended danger, that danger must be an emergency.
- The imposition of Section 144 must strike a balance between the rights of individuals and concerns of the state.
- Powers under Section 144 should be exercised in a reasonable and bonafide manner, and the order must state material facts in order to enable judicial review.
Are Section 144, lockdown, and curfew same
The answer is no. They cannot be treated as the same. The main basis on which they can be distinguished are as follows:-
Sphere
Code of Criminal Procedure, 1973 constitute ‘SECTION 144’ i.e Power to issue orders in urgent cases of nuisance or apprehended danger.
The term ‘LOCKDOWN’ is not a legal term. The term is being used by government officials and others to describe a situation where free movement of public transport, persons, goods, and services, etc. are restricted according to the requirement/need of the situation. However, certain essential items are exempted from restrictions. The closest understanding of the particular term can be construed from the Epidemic Diseases Act, 1897, especially in the recent time of the pandemic.
The term ‘CURFEW’ is an addition to an order under Section 144 of the Code of Criminal Procedure, 1973. Curfew orders are issued in more severe situations for a specific time period.
Issuing Authority
‘SECTION 144’ can be imposed by District Magistrate, Sub-Divisional Magistrate, or specially empowered Executive Magistrate.
‘LOCKDOWN’ can be imposed by the order of the Central Government, or the State Government, or through any person/officer empowered by them or under any relevant Act or laws, in all or some parts of India according to the situation/circumstances. The Disaster Management Act, 2005, and The Epidemic Diseases Act, 1897 play a great role in times of handling the disaster/pandemic situation.
‘CURFEW’ can be imposed by a law enforcement agency like the District Magistrate etc. Curfew takes place when the power is with the collector and police commissioner.
Grounds or Purpose (including kinds of restrictions)
‘SECTION 144’ – To put restrictions on assembly of 5 or more persons so as to prohibit public gatherings in an order to prevent cases of nuisance or apprehended danger that has the potential to cause damage to human life or property or to maintain peace and order in those areas where the existing trouble can disrupt the regular life.
‘LOCKDOWN’ – To put restrictions on all kinds of non-essential activities, goods and services and to restrict the movement of the public through various means of public transport like buses, railways, fights, etc., in an order to curb down the danger to public health and safety and also to maintain the situation of peace among the members of the society.
‘CURFEW’ – To force people to stay indoors (completely off the roads) for a fixed period with the object of preventing danger to human life, health, or safety, and to prevent disturbance of public tranquillity, etc. Essential services are also shut down during curfew.
Punishment Provisions
‘SECTION 144’ can be enforced through the mechanism provided under Section 188 of the Indian Penal Code i.e. if such disobedience by any person/persons causes obstruction, annoyance, or injury to persons lawfully employed, then such person/persons would be punished with imprisonment which may extend to one month or with fine which may extend to two hundred rupees, or with both. And if such disobedience by any person/persons causes danger to human life, health, or safety, or causes or tend to cause a riot or affray, then such person/persons would be punished with imprisonment which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
‘LOCKDOWN’ can be enforced through the mechanism provided under Section 188 of CrPC whereby disobedience to the directions of a public servant is punishable with either imprisonment or fine or with both imprisonment and fine, Section 269 of the Indian Penal Code i.e. if any person/persons do the negligent act which is likely to spread infection of disease dangerous to life, then such person/persons would be punished with imprisonment which may extend to six months, or with fine, or with both and through Section 270 of the Indian Penal Code i.e. if any person/persons do the malignant act which is likely to spread infection of disease dangerous to life, then such person/persons would be punished with imprisonment which may extend to two years, or with fine, or with both. And in case if someone is asked to put vessels in quarantine or for regulating intercourse between places where an infectious disease prevails and he violates such order, he would be punished under Section271 of the Indian Penal Code with imprisonment for a term which may extend to six months, or with fine, or with both.
‘CURFEW’ can be enforced through the mechanism provided under Section188 of the Indian Penal Code i.e with the provision of the same punishment which is to be awarded on violation of orders passed under Section 144.
Conclusion
Section 144 has absolutely turned out to be an exemplary legal provision in times of emergency or to say, in situations of nuisance or apprehended danger. The most astounding thing about this section is that the orders issued under this section are even anticipatory in nature, which means reasonable restrictions can be easily put upon certain actions/events, even before the happening of such an act/event which is likely to prevent some harmful occurrences. This provision, thus, no doubt comes into force as a means to secure the health and safety of people by maintaining peace and tranquillity in an area.
However, by applying Section 144 and adopting various other preventive measures, the government is trying hard to flatten the curve of the COVID-19 pandemic but results are not much satisfactory because the passing of orders is just not sufficient, if the implementation of it is not done in a properly planned manner. Government has to bring some more strict laws and should adopt every reasonable strategy to direct every police officers and other executive officers in every way to get the restrictions being followed up in the best possible manner.
Moreover, the fight against the deadly coronavirus disease is not only of government, in fact, it is of the whole nation, which itself indicate that united global efforts are required to deal with this fatal COVID-19 crisis, then only we would be able to get a successful lead over the pandemic.
Remember, ‘the death of an individual or persons is just a counting number for the government but for the family, the same individual constitutes the whole universe for them’. So, it’s high time when we all humans, irrespective of our caste or religion, have to become each other’s strength and unite all our efforts to uproot the lethal coronavirus thoroughly.
“PREVENTION IS BETTER THAN CURE’’
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