Section 144 only in urgent cases, repetitive orders would be abuse of power: Supreme Court ruling in 2020

Examining the scope and restrictions imposed in J&K in the aftermath of the abrogation of Article 370, the bench underscored in its January 10, 2020 ruling that “the structure of” CrPC Section 144 “shows that this power can only be invoked in urgent cases of nuisance or apprehended danger” and that the orders should reflect “proper application of mind”.

The court said that “the order cannot be a blanket order”.

It must set out the “material facts” of the case, indicating the reasons which weighed with the Magistrate to issue an order under CrPC Section 144, the court said.

Citing the order issued on May 22 by Kolkata Police Commissioner Vineet Kumar Goyal, Majumdar posted on X on May 24, “the CM, sensing the will of the masses after 5 phases of election, is now fearful. In a desperate move, she has ordered police to implement Article 144 in Kolkata to stop Modiji’s roadshow. Let TMC know. No evil tactics can stop the BJP.”

In its response, the Kolkata Police said that order under CrPC section 144 is imposed on a regular basis in the vicinity of Dalhousie and Victoria House, and it is nothing new. In a post, the Kolkata Police had attached a copy of the orders on January 25 and March 22, 2024.

Going into the details of CrPC Section 144, the SC, while deciding on the Anuradha Bhasin case, had pointed out that the provision “enables the State to take preventive measures to deal with imminent threats to public peace. It enables the Magistrate to issue a mandatory order requiring certain actions to be undertaken, or a prohibitory order restraining citizens from doing certain things. But it also provides for several safeguards to ensure that the power is not abused, viz. prior inquiry before exercising this power, setting out material facts for exercising this power and modifying/rescinding the order when the situation so warrants”

Summarising the legal position on CrPC Section 144, the bench had said, “the power… being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed”.

The court said that the orders should state the material facts to enable its judicial review.

While exercising the power, the court said that the magistrate “… is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure” and underlined that “it cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights”.

It added that “in a situation where fundamental rights of the citizens are being curtailed, the same cannot be done through an arbitrary exercise of power; rather it should be based on objective facts”.