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Section 144 not for suppressing people’s right: Supreme Court

NEW DELHI: Emphasising that excess usage of Section 144 of the Code of Criminal Procedure (CrPC) would result in severe illegality, the Supreme Court on Friday said that it cannot be used as a tool to prevent expression of opinion, grievance or exercise of democratic rights. Section 144 of CrPC enables the State to take preventive measures to deal with imminent threats to public peace.

“This power should be used responsibly, only as a measure to preserve law and order. The order is open to judicial review, so that any person aggrieved by such an action can always approach the appropriate forum and challenge the same. But, the aforesaid means of judicial review will stand crippled if the order itself is unreasoned or unnotified,” the bench said while passing the judgment on the internet shutdown in Kashmir.

“The Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144 unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety,” the SC said.

Directing the authorities to immediately review the need for continuance of any existing orders passed under Section 144, the court said that power under this section 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 power under Section 144, CrPC cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.”

The magistrate cannot apply a ‘straitjacket formula’ without assessing the gravity of the prevailing situation. The restrictions must be proportionate to the situation concerned, the bench said.

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