Restrictions may be imposed under Section 144 of the Code of Criminal Procedure (CrPC) on personal liberties in the interest of public order, but they should never be “too general”.
The Supreme Court’s warning to the government over 50 years ago in Madhu Limaye vs Sub-Divisional Magistrate may play a major role if the imposition of Section 144 CrPC in various parts of the National Capital and other areas across the country is challenged in court.
The Limaye judgment by a seven-judge Bench of the apex court in 1970 continues to remain an authority on the nuances of Section 144 CrPC.
The judgment holds that restraining orders under Section 144 CrPC are passed against specific persons whose past conduct breeds “sufficient ground” that he is “likely to commit a breach of peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of peace or disturb the public tranquillity”. Section 144 CrPC is not meant to restrain personal liberties en masse.
But what can authorities do when it is unable to distinguish between trouble-makers and ordinary citizens who want to just get on with their ordinary lives?
“An occasion may arise when it is not possible to distinguish between those whose conduct must be controlled and those whose conduct is clear… A general order may be necessary when the number of persons is so large that the distinction between them and the general public cannot be made. A general order is thus justified, but if the action is too general, the order may be questioned by appropriate remedies for which there is ample provision in law,” the Bench led by then Chief Justice of India M. Hidayatullah held.
A restraining order should be temporary. The order should be reasoned as a person’s liberties are being proceeded against merely on the basis of information and suspicion.
The Supreme Court held that Section 144 CrPC is not a provision for detaining people as contemplated under Article 22 of the Constitution which means ‘preventive detention’ in custody. “Primarily, the provision enable the Magistrate to require the execution of a bond and not to detain a person. Detention results only on default of the execution of a bond,” the court laid down.
“The gist of action under Section 144 CrPC is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte, it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification,” the apex court had ruled.
