On May 6, a three-judge panel, led by Justice SA Bobde, cleared Chief Justice of India Ranjan Gogoi of the sexual harassment allegations levelled against him by a former Supreme Court staffer. Protests questioning the clean chit soon erupted outside the Supreme Court gates. Following this, Section 144 of the Code of Criminal Procedure (CrPC)—which prohibits the assembly of more than four persons—was invoked. Many protesters were detained by the Delhi Police.

Radhika Radhakrishnan, one of the protesters, says they weren’t even informed about the imposition of Section 144. “There is no clarity yet on the imposition of Section 144, most of us were not informed. When we questioned the police repeatedly while they were dragging us to the vans, some of us were selectively informed,” she says. The protests took place on the road opposite Gate C of the Supreme Court. “Within 10 minutes of organising on the streets, the police began trying to disperse us. Shortly after, they began rounding us up into police vans and buses.”

The Station House Officer (SHO) of Tilak Marg Police Station, Inspector Devendra, under whose jurisdiction the Supreme Court falls, contradicts Radhakrishnan’s claims. Speaking to Newslaundry about the imposition of Section 144, he says, “The order is widely publicised. Section 144 is already imposed in the Supreme Court, everyone knows this. Nobody can conduct any kind of protest or processions or slogans here. It’s a permanent order that gets renewed every 90 days.”

It is worth noting that every order issued under the section is timed to expire at the end of two months. A 1983 Supreme Court order in Acharya Jagdishwaranand v Commissioner Of Police, Calcutta, also states: “If repetitive orders are made, it would clearly amount to an abuse of the power conferred by Section 144.”

When asked about the illegality of an indefinite imposition of the order, the SHO asked this correspondent to submit a written inquiry, to which he could respond in writing. He also stated that the order under Section 144 was in place, and that “physical copies were pasted on the protest site’s notice boards”. When asked for a copy of the order, Newslaundry was directed to the Deputy Commissioner of Police’s office.

Notably, under Section 134 of the CrPC, such orders have to be stuck up at “places as may be fittest for conveying the information” to the protesters. While a video published by The Wire shows a police officer telling a protester that an order under Section 144 has been passed, the order was not uploaded to the Delhi Police’s website.

The Delhi Police’s arbitrary invoking of Section 144 has been questioned by many. Several lawyers that Newslaundry spoke to pointed out the lack of specificity with which the law is laid out.

According to Abhinav Sekhri, a Delhi-based lawyer, the line differentiating a peaceful protest from one that poses a threat to public tranquillity largely depends “on the insecurity of those in positions of authority”. This is because the law lays down no specifications, he says. “The section lays out a delightfully vague standard. It means today it can be imposed to stop five adults from sitting together and playing PUB-G.” Senior advocate Mihir Desai agrees. He says, “The imposition is extremely arbitrary. It should only be imposed in exceptional circumstances.”

Such lack of specification leaves protesters, such as those outside the Supreme Court, vulnerable. “According to the Constitution, the rule is one’s rights, and restrictions form the exception,” says advocate Prasanna S. He adds, however, that now the restriction has become the rule.

Prasanna says Section 144 is “imposed in perpetuity” in New Delhi. This idea of a perpetual order becomes especially interesting in the context of exercising one’s democratic rights in areas demarcated as “high-security zones” such as the Supreme Court itself, he adds.

Advocate Kotla Harshavardhan says the government routinely extends the imposition of Section 144 in and around Delhi without any application of mind. “The order in perpetuity is a reality in and around the India Gate, Parliament, etc. … This was challenged as being unconstitutional before the Supreme Court in Mazdoor Kisan Shakti Sangathan v Union of India and Anr., where the Supreme Court held that it [the order] was not unconstitutional but recognised the right to protest and asked the government and police to frame guidelines.”

According to Abhinav Sekhri, this judgement is the “lost promise of (Section)144” since the implementation of guidelines is yet to see the light of day. “Even if the Supreme Court is declared a high-security zone, it can have rules and regulations in place to monitor entry into its premises. The protest, however, was outside its premises … the real question to ask is who pronounced the provision. What was the exact order? Merely saying that Section 144 is imposed means nothing.”

Meanwhile, Prasanna S says the events that unfolded outside the Supreme Court premises on May 7 were “most definitely indicative of a motivated exercise of power”. He adds: “There wasn’t a whisper that there was going to be a breach of peace … what happened was a disgrace … the police acted like it was their duty to exercise the power. It’s not.” Prasanna says the police need to justify the necessity to exercise power.

Another Delhi-based lawyer, on condition of anonymity, says it’s important to remember that Section 144 can never be enforced in the context of curbing a democratic right. ”There has to be a credible threat to law and order.” There was no cause to believe that the May 7 protest would be a threat to law and order, the lawyer added.

The right to assemble and Section 144

The right to assemble peaceably and without arms is laid down in Article 19(1)(B) of the Constitution. This means that citizens have the freedom to assemble and organise a public gathering or processions. However, this right is subject to reasonable restrictions in the interest of India’s sovereignty and integrity or public order under clause 3 of Article 19. This means if an appropriate authority is of the opinion that holding a public meeting is adverse to maintaining public peace and tranquillity, then they can prohibit it.

Section 144 was first introduced to curb nationalist activities in 1861. Today, 158 years later, the echoes of colonialism reflect in our realities as the section is little changed.

The section is listed under chapter 10 of the Code of Criminal Procedure that details the “maintenance of public order and tranquillity”. This section empowers the issuance of an “order in urgent cases of nuisance or apprehended danger”. It consists of seven sub-sections that empower a magistrate to pass an order to tackle an emergency and prevent a threat to public tranquillity and order. You can read the sub-sections here.

The main objective of the provision is the prevention of a breach of peace. An order may be passed in one of two cases—preventively or retrospectively—depending on the nature of circumstances. First is the case of immediate prevention of a public nuisance and the second, when a speedy remedy of an apprehended danger is desirable. The state of proclaimed emergency by the magistrate, however, does not relieve them of the duty of making a proper inquiry into the circumstances that make it likely to occur. “The duty to give a reason, or to exercise discretion fairly, objectively and on the basis of credible documents and material, is a duty which cannot be abdicated by the authorities even in cases of emergency,” a Delhi-based lawyer adds.

The lawyer explains that the provision allows for the order to be passed “ex parte” which essentially means that an order can be passed without hearing or informing the other party. It also means that the emergency for which the order is passed “must be sudden and the consequences sufficiently grave”. The provision provides for the order to be passed against not only an individual, but also persons residing in a particular place or area, or the public generally.

While Section 144 is oft referred to in cases pertaining to threats to public order, Section 133 is deemed the first option to consider when dealing with cases of unlawful nuisance, lawyers told Newslaundry. They point out that the fundamental difference between the two sections is that an order affecting Section 133 can be passed only after a police report is received by the magistrate, while the decision to impose Section 144 can be taken without the police report.

In short, Section 144 is passed when the emergency situation doesn’t allow Section 133 to be passed and a decision needs to be taken quickly.

Two-month expiration

Although the time period for the expiration of an order cannot exceed two months, the state government can extend this period up to a maximum limit of six months if it sees enough reason (subject to criteria laid out in the provision).

The order can also be revoked or altered by the magistrate or the state government on their own (suo moto) or after an application by an aggrieved person(s). This essentially means that if, in the opinion of the magistrate who issued the order, the circumstances prove later that an order under the section was not required, they can rescind or alter it.

In conclusion, advocate Abhinav Sekhri says, “As the news suggests, Section 144 was already in place … is a long-standing, semi-permanent order banning gatherings of five persons or more whenever the police decide they are ‘unlawful’ justified? My answer is absolutely not.”

Advocate Kotla Harshvardhan adds, “Just because you have power does not mean you are obliged to exercise it. It should be judiciously employed to uphold democracy, not because you can. If you are scared that 50 people protesting peacefully endangers public order, then what does it say about our democracy?”