SC asks how Executive Magistrates can pass prohibitory orders on public gatherings, yatras during elections

Passes an interim order directing Magistrates to decide applications for permission in three days

Updated - April 20, 2024 06:29 am IST

Published - April 19, 2024 01:14 pm IST - New Delhi

Nikhil De and Aruna Roy. File.

Nikhil De and Aruna Roy. File. | Photo Credit: Monica Tiwari

The Supreme Court on April 19 questioned the basis of Executive Magistrates issuing blanket orders prohibiting yatras to uphold democratic and electoral values, dharnas and public meetings during the entire duration of the Lok Sabha elections, till the declaration of poll results.

“How can such orders be passed?” Justice B.R. Gavai exclaimed in open court.

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The indignant query from the Bench, also comprising Justice Sandeep Mehta, came when advocates Prashant Bhushan, Prasanna S. and Cheryl D’Souza, for petitioner-activists Aruna Roy and Nikhil Dey, said the prohibitory orders under Section 144 of the Criminal Procedure Code (power of Executive Magistrates of any State to pass prohibitory orders on public gatherings) had been issued since the past six months on the ground of elections.

State authorities and Executive Magistrates deal with applications seeking permission for public meetings and yatras with a deafening silence, keeping them pending without responses indefinitely, Mr. Bhushan said.

The petitioners said the phenomenon had been seen in many States, including Rajasthan, Gujarat and Delhi.

The Bench directed Magistrates to decide the applications within three days. The ambit of the court’s interim order would extend across the country.

“These blanket prohibitory orders directly affect the civil society and general public from freely discussing, participating, organising or mobilising on issues affecting them ahead of elections. The conduct of elections — being the ostensible reason for invoking Section 144 — is neither a valid ground recognised under Section 144, nor an emergent situation to justify imposition of sweeping prohibitory orders,” Mr. Bhushan submitted.

The court issued notice to the Union government and the Election Commission of India. It listed the case for hearing in two weeks.

Mr. Bhushan said the prohibitory orders verge on the “fantastic” and assailed well-rounded Constitution Bench judgments of the court that Section 144 could be invoked by Magistrates only if there was a reasonable apprehension of breach of peace.

‘Orders passed mechanically’

“The prohibitory orders are being passed mechanically, without any material or exigency to justify prohibition on the general public, and amounts to an illegal interference with the right to vote,” Mr. Bhushan argued.

He said both petitioners were part of a civil society group called the Rajasthan Election Watch, which has been monitoring elections in Rajasthan since 2003-04. They hold ‘democracy yatras’, create awareness among voters and monitor communal and hate-motivated messages to alert the police administration.

He said the blanket prohibitory orders thwart and obstruct public participation in the democratic process. They were a challenge to the very principle of free and fair elections.

The repeated imposition of Section 144 prohibitory orders allowed the State to impose restrictions on fundamental freedoms, including free speech and expression under Article 19 of the Constitution.

“Democratic conduct of elections suffers as a result of these prohibitory orders creating a climate of fear and chilling effect among citizens as public participation is made subject to a strict policing licence/permit regime,” the petition said.

The petition said these “coordinated blanket orders under Section 144 were issued under instructions from the Election Commission of India”.

“Article 324 of the Constitution of India certainly empowers the Election Commission to issue instructions to all civilian authorities to act in order to aid the commission in its function of conduct of free and fair elections. However, it cannot be said to empower the commission to completely usurp the discretion and the responsibility for application of mind enjoined upon the magisterial authorities under the Cr.PC,” the plea said.

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