July 26, 2009: Himanshu Sabharwal was arrested along with 25 others under Section 144 of the Code of Criminal Procedure (CrPC) for taking out a candle light vigil at India Gate. The group was organising a peaceful demonstration seeking justice for Himanshu’s father Prof H S Sabharwal who had died after being beaten up by ABVP activists in an Ujjain-based college. Such incidents are not uncommon in our 'free' country. Think of Section 144 and the very first thing that comes to mind is blur picture of khakis forcing a group of people out of a public place where they were protesting peacefully for a social cause.
During college days we were allowed to protest only at a particular lobby area and there were restrictions to enter academic blocks. We broke all the rules and protested in every nook and corner of the campus for various causes including placement of students, rollback of fee hike and better hostel facilities. College authorities slapped heavy fines which used to be deducted from the already deposited 'caution money'.
Once out of campus, the restrictions got stricter with mindless imposition of Section 144 which goes against the very spirit of participatory democracy. Article 19(a) and 19(b) of the Constitution of India clearly grants right to freedom of speech and expression and right to assemble peaceably without arms. However, whenever authorities sense an opinion building up against them they take refuge behind Section 144, a legacy of British rule.
Article 19(a) and 19(b) of the Constitution of India clearly grants right to freedom of speech and expression and right to assemble peaceably without arms. However, whenever authorities sense an opinion building up against them they take refuge behind Section 144, a legacy of British rule.
Colonial rulers introduced the rule in 1861, a few years after the first war of independence to keep the rebels in check. No more than five persons could assemble on Indian streets. However, even after 150 years of its formulation and more than 60 years of independence, we are still being treated as rabble-rousers, up against our own country. The right to protest peacefully for a just cause is equated with conspiracy to destabilise the government. Authorities decide to suppress public movements instead of initiating dialogue with the protesters. In such a scenario, nobody can help but mourn the death of democracy.
Colonial rulers introduced Section 144 a few years after the first war of independence to keep the rebels in check. No more than five persons could assemble on Indian streets. However, even after 150 years of its formulation and more than 60 years of independence, we are still being treated as rabble-rousers, up against our own country.
However, this mindless suppression has given rise to a new thought process which is to protest against the very rule that stops us from protesting. The August Kranti movement in Chandigarh last year and protest by Youth Democratic Front at India Gate some months ago are just a few indications that we are not going to take the orders lying down. If fundamental rights of a common citizen are not respected then there is a need to make the authorities read the rulebook again.
Imposition of Section 144 is anticipatory in nature which means it can be utilised only in cases of emergency, where there is an apprehended danger of some event that has the potential to cause major public nuisance or damage to public tranquillity. The power to impose Section 144 is conferred on the executive magistracy and private rights can be temporarily overridden. However, the order can still be challenged in the court of law. Fundamental rights can only be overridden if there is a valid reason to believe that there will be danger to larger public interest. The order has to be, if practicable, served on the person against whom it is made, and if such order cannot be served, it has to be notified through proclamation, and published in such manner as the state government may, by rules, direct. A copy thereof has to be stuck at such place or places as may be fittest for conveying the information to such persons.
In addition, the order can’t remain in force beyond two months except when the state government considers it necessary to extend the period to six months for preventing danger to human life, health or safety or for preventing riot or any disturbance. However, the magistrate has to issue fresh public notice inviting objections to the further imposition of Section 144. The High Court's power of revision under section 435 of the Code read with section 439 also ensures that Section 144 is non-appealable. The court can either quash the order or ask the magistrate to provide material facts. This ensures accountability of the magistrate.
So, the law does provide adequate safeguards against mindless imposition of Section 144. The need is to be aware of our legal framework and object to tyranny through valid means.
(Suyash Deep Rai is general secretary of the Youth Democratic Front)