Backgrounder | Area a hundred and forty four, a vestige of colonial rule

India’s criminal justice architecture proceeds to replicate its colonial heritage, both of those on paper and in observe. This is possibly reflected best in the vibrant and unfettered invocation of Part a hundred and forty four in the Legal Treatment Code, 1973 [“Cr.P.C.”], which confers on govt officers these kinds of as executive magistrates or sub-divisional magistrates, unimaginable powers for passing orders to tackle any urgent circumstances of “nuisance” or “apprehended danger” that could occur in their territorial jurisdiction, where by these orders will “prevent or are possible to prevent” any adverse affect upon human lifestyle, well being, security, or reduce “a disturbance of the community tranquillity.”

In principle, Section 144 embodies quite noble strategies. It is a manifestation of the strategy that extraordinary periods simply call for extraordinary steps, one thing extremely few of us would disagree with. But fairly than simply conferring acarte blancheupon govt officers, Segment a hundred and forty four circumscribes these powers by stipulating disorders that have to be complied with in advance of any get can be handed [clause (one)], although also correcting spatial and temporal restrictions to ensure that the exception does not overwhelm the norm [clauses (two) by (4)]. Consequently, as a rule, an get less than Segment a hundred and forty four must be passed following giving prior notice and a listening to to the individuals whose rights will be adversely impacted, and only “in instances of emergency” can this need be waived.

Even more, Section 144 also incorporates in just itself the idea of an aggrieved man or woman hard the work out of these power, or even the point out by itself examining its actions [clauses (five) by (7)]. So, even exactly where persons may well not have been heard prior to passing of a recognize, they can be read subsequently.

Consequently, when one hears of “144 order” currently being imposed in situations of riots or demonstrations, what that in fact refers to is an order handed below this area, which then specifies selected factors that shall be carried out, because the officer considers that these actions will prevent harm to existence and home, or a disturbance to public tranquillity most common amid these becoming an order handed by the local Police Commissioner (who will be an executive justice of the peace) directing that the law enforcement acquire measures to avoid any associations of people today in just an area, due to the fact the officer considers this essential to avert violence.

Backgrounder | Section 144, a vestige of colonial rule

If Segment a hundred and forty four is so wonderful, why has it been consistently attacked about time, the two prior to and just after Independence, as being just one of the a lot more insidious provisions on our statute guides? There are twin factors for this criticism. The 1st is that in the bid to legislate for all forms of emergencies, Part 144 finishes up conferring nearly unbridled powers on govt officers.

The only test positioned upon the officer just before passing any order below Area 144 is regardless of whether or not it pleased his conscience, about there becoming a have to have for this kind of orders which will almost unquestionably entail curbs on the rights of persons.

And even however there are powers to obstacle this sort of orders in charm or in a writ just before constitutional courts, even they are not able to substitute their appreciation of the info for what the officer himself assumed. At most effective, they can make positive that the treatment was appropriately followed, but they simply cannot substitute their judgment for that of the officer on the ground.

Moreover, the serious breadth of powers conferred upon executive officers by Area 144 is not especially tailored to the forms of potential risks that are sought to be prevented. Let’s unpack this further more. Part 144(1) confers these powers for achieving selected objectives, i.e. stopping any destruction to life or home, but frames these targets as commonly as feasible given the logic of emergencies.

Even so, there is nothing at all in the statute itself that suggests that the executive officer can only do A, B, or C to, say, avoid any “disturbance of the public tranquillity”, where by this did not suggest any active threats to life or residence. But provided that some hyperlink among the treatment and the health issues will attraction to any rational observer, attractiveness courts are willing to interfere exactly where the backlink is considerably far too tenuous.

As a result, to sum up. Section a hundred and forty four is a helpful device to support offer with emergencies. On the other hand, absence of any narrow tailoring of wide executive powers with distinct targets, coupled with extremely limited judicial oversight above the govt branch, makes it ripe for abuse and misuse.

(Abhinav Sekhri is a law firm practising in New Delhi)

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