The orders of restriction issued under Section 144 of the Code of Criminal Procedure (Cr.PC) could not be used as a tool to suppress legitimate expressions, opinions and grievances in a democracy, the Supreme Court ruled on Friday.
Referring to the submissions by petitioners that the police were still restricting the movement of people during the day in Jammu and Kashmir, the court said it was neither proper nor correct on the part of the State to resort to such acts. “If a government thinks there is a threat to law and order..., it must follow due procedure, taking into consideration the rights of citizens, and pass only appropriate and need-based restrictive orders,” it said.
The court noted that the orders issued under Section 144 in Jammu and Kashmir did not explain that restrictions were imposed in anticipation of a threat to law and order or to prevent loss of life and property. This was despite the fact that government had argued that the restrictions were imposed because of the erstwhile State’s history of cross-border terrorism and infiltration and other security issues. Divergent views and disapproval of government action could not lead to imposition of Section 144, the court said.
The power was meant to be used only in case of public emergency or in the interest of public safety. Magistrates could not apply a strait-jacket formula without assessing the objective and material facts. Restrictions could not be excessive in nature or duration, it said.
On the contention whether Section 144 could be invoked against the public in general or against specific groups or persons, the court referred to the Madhu Limaye judgment that a general order could be passed if the number of persons was so large that a distinction could not be made without risk.
