No curbs on legitimate expression: SC

Chittarvu Raghu

(The writer is an Advocate, High Court of A.P. & T.S.

He can be reached at chittarvu_raghu@yahoo.com.)

Curbs imposed in Jammu & Kashmir after the center’s abrogation of provisions of Article 370 of the Constitution of India was challenged before the Hon’ble Supreme Court and the Apex Court in a recent judgment held that disagreement does not justify destabilization and power under 144 Cr.P.C. cannot be used as a curb on legitimate expression of democratic rights. The Apex court also observed that liberty and security are always at loggerheads. It is the court’s job to ensure that the citizens are provided all rights and security and further held that Sec.144 of the code is a remedial and preventive measure and must be subject to test of proportionality. Any order must adhere to the principle of proportionality and would be the subject to the judicial review.

Sec.144 of Cr.P.C. is being invoked indiscriminately to contain legitimate protest across the country by the State police machinery. In some cases the Magistrate or the Officer concerned may perceive threat basing on the material evidence available which invariably shall be disclosed in the order. It cannot be presumed that there would be a breach of peace merely because there is a protest. If there is no material evidence available for invocation of Sec.144 of Cr.P.C., such invocation would be in violation of Article 19 (1) of the Constitution of India and therefore it would amount to infringement of the basic fundamental right of freedom of expression. Sec.144 of Cr.P.C. cannot be invoked with an intention to prevent a peaceful demonstration.

Sec.144 (1) contemplates that in cases where, in the opinion of a District Magistrate, a Sub- Divisional Magistrate or any other executive Magistrate specially empowered by the State Government in this behalf, there is a sufficient ground for proceeding under the said Section and immediate prevention or speedy remedy is desirable, such Magistrate may, by written order stating the material facts of the case and served in the manner provided under Sec.134, direct any person to abstain from a certain Act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or a disturbance of public tranquility or a riot or an affray.

Sub Section 2 contemplates that an ex-parte order can be passed in case of emergency and Sub Section 3 specifies that such an order may be directed to a particular individual or to persons residing in a particular place or area or to the public generally or visiting a particular place.

A reading of the aforesaid order shows that the Magistrate or any officer passing an order under Sec.141(1) of Cr.P.C. has to state material facts and also his consideration that such order would prevent disturbance of public tranquility. The emphasis is on the likely hood of breach of public tranquility. Though the Code of Criminal Procedure, 1973 repeals the Code of Criminal Procedure Code, 1898 (Act No. V of 1898), Sec.144 of the old code was retained in the new code.

Freedom of expression is an indispensable component in a democratic society. Pandit Jawaharlal Nehru in his historical resolution containing aims and objects of the Constitution to be enacted by the Constituent Assembly said that the Constitution should guarantee and secure to all the people of India among others freedom of thought and expression.

Article 19 (1) of the Constitution is a part of Part – III of the Constitution which pertains to Fundamental rights. All citizens shall have a right to freedom of speech and expression, to assemble peacefully and form associations. Any infringement of such a right would constitute violation of Fundamental rights available to the citizens. Article 19 (2) empowers the State to make any law imposing a reasonable restriction on the exercise of such right.

When Sec.144 of Cr.P.C. is invoked, it may amount to a reasonable restriction imposed under Article 19 (2) of the Constitution of India. But if the mandatory requirements under Sec.144 of Cr.P.C. are not complied with i.e., existence of real threat of breach of tranquility, the very invocation of Sec.144 of Cr.P.C. is in violation of Article 19 (1) of the Constitution.

The Hon’ble Supreme Court in Madhu Limaye’s case while examining the scope of Sec.144 of Cr.P.C. of old code vis-a-vis Article 19 of the Constitution, had held that the power extends to making an order which is either prohibitory or mandatory in nature and the urgency “is the only criteria that can justify the order under the said section”. The urgency should have nexus with the likely hood of breach of tranquility. The magistrate has to make an order reflecting his objective consideration. The Hon’ble Supreme Court also held that the power under Sec.144 of Cr.P.C. is not flowing from administration but is a power to be used in a judicial manner and it should stand further judicial scrutiny.

The Hon’ble Supreme Court in Ramlila Maidan incident case “has emphasized that the degree of threat involved for invoking the provision should be real threat to public peace and tranquility. The provision cannot be invoked merely on imaginary or mere likely possibility. The material facts that are to be stated in the order should disclose that there is a real threat to the public peace and tranquility or else the Magistrate or any officer does not have any power to invoke the said provision.

The Hon’ble Supreme Court in State of Karnataka Vs. Gowri Narayana Ambiga held that the freedom of speech and expression must be broadly considered to include the freedom to circulate once views by word of mouth, in writing or audio, video instrumentalities. It means a gathering of group of persons raising slogans falls within the ambit of Article 19(1) of the Constitution.

In Baldev Singh Gandhi Vs. State of Punjab the Hon’ble Supreme Court held that situations may arise where responsible persons or those who hold elected officers feel that it is their duty to criticize the law promulgated as unconstitutional and against public interest and invite people to come forward for discussion and the same is protected by Article 19(1) (a) of the Constitution.

While Invoking Sec.144 of Cr.P.C. the Magistrate or any other officer should be conscious of the fundamental right of a citizen under Article 19(1) of the Constitution. The Magistrate has to rarely invoke such a provision in a democratic society which always takes into fold the dissent. It cannot be invoked arbitrarily only with an intention to prevent a peaceful demonstration. If so the same constitutes abuse of power.

Therefore, the State police machinery henceforth has to be conscious of the aforesaid law laid down by the Hon’ble Supreme Court and should not indiscriminately invoke Sec.144 of Cr.P.C. to prevent a legitimate peaceful protest.