INTRODUCTION
The state of Jammu and Kashmir acceded to India through an accession known as ‘Instrument of Accession’, signed by the raja of the state Raja Hari Singh. The Instrument of Accession gave the state of Jammu and Kashmir a special status under the constitution of India. Under Article 370 the State of Jammu and Kashmir acquire a special status, excluding it from the constitution of the country and thereby allowing it to maintain its own constitution separately. The only matters in which the Central Government can exercise its powers were initially applicable to the matters relating to defense, communications and external affairs. Besides this Article 370, there was another Article 35A which defined the permanent residents of Kashmir. Under this article the non-residents of the State were not permitted to buy land or property in Kashmir, they cannot apply for any government jobs or avail scholarships. However, this special status given to the State of Jammu and Kashmir gave under Article 370 of the Constitution was revoked by a Presidential order on August 5, 2019. And the State of Jammu and Kashmir was bifurcated into the Union Territories of Jammu & Kashmir and Ladakh. Following it Article 35A which defined Kashmir’s permanent residents was also removed. The decision taken hasn’t technically removed article 370. In contrast, it has made use of article 370 itself to declare it null and void. Article 370 clause 3 reads that “this article can cease to exist”. This article can be declared null and void through a presidential order in consultation with the constituent assembly of Jammu and Kashmir. Hence the President and the State Government of Jammu and Kashmir can take this decision jointly. However, at the time of the decision there existed no State Government nor any constituent assembly as the state of Jammu and Kashmir has been brought under President’s rule. Therefore the powers of the State Government got transferred to the Parliament of India and together, it can take a decision after the Presidential order to declare article 370 null and void, and this is precisely what happened. Following this order of removal of Article 370 the whole State of Jammu and Kashmir was imposed with Section 144 of the Cr.P.C. and massive troops were deployed in order to maintain peace within the State and the prominent leaders were kept on a house arrest.
SCOPE OF SECTION 144 OF Cr.P.C.
Sec.144 Cr.P.C. is one of the mechanisms that enable the state to maintain public peace. Section 144 Cr.P.C. enables the state to take preventive measures to deal with imminent threats to public peace. It provides for several safeguards to ensure that power is not abused, viz- prior inquiry before exercising such power, setting out material facts for exercising this power and modifying/rescinding order when the situation so warrants. An order issued under Section 144 of the Cr.P.C. is regarded as an executive order passed in performance of an executive function where no lies as to any rights between rival parties is adjudicated but merely an order for preserving public peace is made and as such it will be amenable to writ jurisdiction under Article 32 on the ground that it has the effect of violating or infringing a fundamental right of a citizen.[1] An order passed in mere anticipation or apprehension cannot be sustained in the eye of law. A mere statement that he is satisfied that there is every possibility of a serious breach of peace between the parties, as well as public tranquility, is not sufficient to exercise power under Section 144(1)(2) of CrPC, duty is cast upon the Magistrate to project the factual situation pertaining to urgent and emergent circumstances in rendering the ex-parte order[2]. It cannot be said that Section 144 can be used for suppression of lawful activity for doing certain acts which are against the law and rules made thereunder. The satisfaction of the Magistrate as to the necessity of promulgating an order under Sec 144 Cr.P.C., is not made entirely subjective by the section where the challenge to this order is made, The Magistrate has to give an opportunity to the person concerned appearing before him and for showing cause against the order.
Order Must be from Ambiguity
Any order under Section 144 must be clear and definite terms and free from any ambiguity, as pointed out in the decisions of Ambika Nanda Maitra v. Binode Behari Sarkar[3] and Thokin Aung Bala v. District Magistrate, Rangoon[4], and Thockchom Angou Singh v. Union Territory of Manipur.[5] If in future any State could pass such type of blanket restrictions, for example, to prevent opposition parties from contesting or participating in elections in this context it is sufficient to note that the power under sec 144 Cr.P.C cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights. Our constitution protects the expression of divergent views, legitimate expressions, and disapproval and this cannot be the basis for invocation of sec 144 Cr.P.c. unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger, provisions of sec 144 Cr. P. C will only be applicable in a situation of emergency and for the purpose of preventing obstructions and annoyance and injury to any person lawfully employed[6]
In the case of Ram Manohar Lohia v. State of Bihar[7], the court emphasized the difference between “public order” and “law and order situation.” The court therein held that a mere disturbance of law and order leading to the disorder may not necessarily lead to a breach of public order. The place or locality to which an order under this clause is applied should be clearly defined to enable the public to know at once what the prohibited area is. The expression ‘particular place’ is not confined to a particular restricted place like a market or a park, but includes a part of a town provided that the part is sufficiently well defined with clear boundaries as to be easily distinguishable, and so that the public may under no misapprehension or doubt as to what the prohibited area is[8]. The validity of the aforesaid restrictions has to be tested on its reasonableness. In the context of restrictions imposed by way of orders passed under sec 144 CrPC the court in Ramlila Maidan Incident case, held that an onerous duty is cast upon the concerned magistrate to first assess the perceived threat and impose the least invasive restrictions possible. The concerned magistrate is duty-bound to ensure that the restrictions should never be allowed to be excessive either in nature or in time. In the case of Modern Dental College which brought the concept of proportionality into the fold, equally apply to an order passed under section 144 Cr.P.C. Orders passed mechanically or in a cryptic manner cannot be said to be orders passed in accordance with the law.
It is imperative for the State to make such orders public so as to make the right available under section 144(5) CrPC a practical reality. Where the Police Commissioner refused permission to the BJP, a political party, to hold a public meeting and refused to relax prohibitory order u/s 144 Cr.P.C., The Calcutta High Court quashed the order and said that the holding of a meeting could not be totally prohibited but necessary restrictions may be imposed and preventive measures may be taken.[9] The mere statement by the district magistrate that he considers the case to be imminent is not sufficient to give him jurisdiction if the facts set out by him show that really there was no urgent necessity for action.[10] Where there is no apprehension of a breach of peace a magistrate should not restrain the liberty of private individuals by means of an order under this section.[11] The magistrate while making an order under the section is required to state the material facts.[12]
IMPOSITION OF SECTION 144 OF Cr.P.C.LEADS TO VIOLATION OF FUNDAMENTAL RIGHTS ENSHRINED UNDER ART 19 OF THE CONSTITUTION OF INDIA
An important tool in the shape of Section 144 has been provided to all the Magistrates under the Criminal Procedure Code to use it whenever a situation arises which is likely to threaten breach of peace. The main object of passing an order under this section is to prevent any imminent breach of the peace and such an order remains in force for a temporary period of only two months. In recent, this tool has been used time and again whenever there was any apprehension. The question which arises here is that how many times during its imposition was it really necessary and required. The imposition of Section 144 in the State of Jammu and Kashmir in lieu of the order passed relating to the abrogation of Article 370 was subject to many debates whether its imposition was really a necessity or was it done under a mere apprehension. As the power under Section 144 is a discretionary one a lot of care has to be taken and should be responsibly applied as its imposition has direct consequences upon the fundamental rights of the citizens given to them under the Constitution, therefore, it should be used only as a measure to preserve law and order. The provision has been frequently invoked in the State restricting the movements of the citizens. The Supreme Court in this regard on January 10, 2020, ruled that imposing Section 144 of Cr.P.C. which restricts citizens’ fundamental right to assemble peacefully cannot be invoked as a tool to prevent the legitimate expression of thoughts or opinions or any grievance or from the exercise of any democratic rights. The court’s remarks assumed a significant place where this provision was being invoked all too frequently by the authorities. “Our Constitution protects the expression of divergent views, legitimate expressions, and disapproval, and this cannot be the basis for invocation of Section 144, CrPC unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger,” a three judge-bench headed by Justice N V Ramana the Supreme Court said in its ruling on petitions challenging internet shutdown and curbs on people’s movement in Jammu and Kashmir said that ‘the power under Section 144, being remedial as well as preventive, is exercisable when there is an apprehension of danger, but 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 ‘it is the magistrate’s call to assess the situation and take a call on whether Section 144 should be imposed.’ ‘While exercising this power, the magistrate is duty-bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure. Repetitive orders under the provision would be an abuse of power’, the bench said. There will be no wrong in saying that the exercise of powers under the Cr.P.C., though unjustified, was clearly mala fide to ensure that the opposition to the abrogation of Article 370 of the Constitution is silenced.[13]
Internet Shutdown
Under the provisions of Section 144, the State of Jammu and Kashmir also faced restrictions on using telecom services including the internet as soon as the order of abrogation of Article 370 was passed. In today’s world where technology is developing at a fast pace, the internet stands as the most utilized and accessible medium for the exchange of information. There is no dispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right nor can it justify its denial.[14] Apart from being a medium of exchanging information the internet acquires a very important position in the world of trade and commerce. With the globalization of the Indian economy and advancement in Information and Technology, various business avenues have opened up transforming India as a global IT hub. There are certain trades, the daily activities of which are completely dependent on the internet. The Information Technology Act, 2000, the Criminal Procedure Code (CrPC), 1973 and the Telegraph Act, 1885 are the three laws that deal with the suspension of Internet services.
The Supreme Court in its ruling on petitions challenging internet shutdown in the State said that “Freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19 (2) of the constitution,” said the court. “Freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).” This came after a five-month-long internet shutdown in Kashmir. The court in its observations only laid out the guidelines that an internet shutdown cannot be arbitrary and is subject to be challenged in the court. However, the court did not look into the legality of the shutdown, instead, it directed the Government to review the order and state the reasons for justifying the action. The court although made it clear that an indefinite suspension of internet services is impermissible. “Our constitution protects the expression of divergent views, legitimate expressions, and disapproval, and this cannot be the basis for invocation of Section 144, CrPC unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger,” the court said.
This internet shutdown in the State of Jammu and Kashmir was the world’s longest internet shutdown in a democracy which was almost for a period of 6 months. It was only on January 25, 2020, that internet access was restored applying only to 301 websites. Mobile data access was also restored though it was limited to 2G connections. The country also saw internet shutdowns in various parts of the country like Delhi, Assam, Uttar Pradesh following the passing of the Citizenship Amendment Bill, 2019. With almost 134 internet shutdown last year (according to SFLC) in the country it will be no wrong in saying that the Government of the country has found a new arbitrary tool to restrict any opposition from expressing its opinions or grievances for the government and curbing the democracy within the country. Cutting off the internet is a tactic that can be associated with dictatorships than democracies. The American press held the freedom of the press is essential to political liberty
In Re Harijai Singh it was held that the primary duty of the court is to upheld Freedom of Press and Invalidate all those laws and actions of an administration that interfere with contrary to the constitutional mandate.
Detention of Leaders is a Gross Violation of Rights :
Following the Presidential order of the abrogation of Article 370, the political leaders of Jammu and Kashmir were put under house arrest. Nearly 400 political leaders including Omar Abdullah, Mehboba Mufti were either detained or placed under house arrest. An order of preventive detention to be valid has to conform to the requirements laid down in Article 22. The Supreme Court has always placed the burden of showing that whether detention is in accordance with the procedure established by law on the detaining authority because of Article 21[15] The Hon’ble Supreme Court in Icchu Devi v. Union of India[16] held that the fundamental right of life and personal liberty incorporated under Article 21 is placed on such higher pedestal by this court that it has always insisted that whenever there is any deprivation of life and personal liberty the authority responsible for such deprivation must satisfy the court that it has acted in accordance with the law. Personal liberty is regarded as the most precious possession of mankind and refuses to tolerate any illegal detention The Hon’ble Court in Mohd. Yousuf Rather v. State of Jammu and Kashmir[17] disapproved of the vagueness on the grounds of detention because it infringes on fundamental rights of the detenu under Article 22(5) of the Constitution. In the case of Atma Ram Sridhar Vidhya 1951[18] it was held that the guarantee of Artcle 22(5) has been characterized as an elementary right of a citizen in a free democratic state.
Conclusion
The abrogation of Article 370 was a massive step taken by the Central Government but the imposition of Section 144 and deployment of thousands of military troops in the state was most crucial following a suspension in the telecom services and cutting off the internet. An order issued under Section 144 of Cr.P.C. should not be unbridled and should only be issued to preserve law and order and public tranquillity. An order passed under a mere apprehension will be illegal. Every citizen has the right to peacefully protest against any order of the government. Such peaceful protest by the citizens should not be curbed by imposing Section 144 of the Cr.P.C. The provision of Section 144 was made to prevent imminent dangers and threat to public peace and security and not to prevent citizens from forming any peaceful assembly. There should be reasonable grounds on the invocation of this section. Our Constitution provides for a democratically elected government that is, it is
‘for the people, by the people and of the people’. And the citizens have the right to question any order of the government through peaceful protest. Any order which takes away this right will curb the democracy of the country and will only pave way for dictatorship wherein people are restricted from any speech and expression in opposition to the ruling party. In the case of Liversidge v. Anderson, the house of Lords held dissent by Lords Aitkin, upholding the fundamental rights of the citizens of the United Kingdom which is now the law of the land. But in the present case, the fundamental rights have been set aside by imposing presidential rule.
Although art.19 is subject to reasonable restrictions these restrictions need to be tested on the anvil of the Test of Proportionality[19] By“Proportionality” we mean the question whether while regulating the exercise of Fundamental Rights, the appropriate or least- restrictive choice of measure has been made by the legislature or the administrator. Under this principle, the court will see that the legislature and administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interest of a person keeping in mind the purpose which they intend to serve. In the present case, the Test of Proportionality is completely ignored by the presidential rule. The leaders were arrested under Sec 8 of J&K Public Safety Act 1978 but as per section 13 of PSA, the grounds of order of detention should be disclosed to the person affected by the order this enables the detained to make representation against the order of detention in the exercise of fundamental rights under art.22(5) the grounds of order of detention haven’t been told to the prominent leaders As per sec 15 of PSA there must be an advisory body but in the present case no advisory body is being set up which leads to violation of Art 21 &22.
In Ghani v Jones[20] Lord Denning observed “ A man’s liberty of movement is regarded so highly by the laws of the England that it is not to be hindered or prevented except on the surest grounds. And this statement has been quoted with approval by the seven Judge Constitution Bench judgment of our Supreme Court in Maneka Gandhi v Union of India[21] and thereafter in Govt of Andra Pradesh v P. Laxmi Devi. Hence, it is the law of the land in India too. Omar Abdullah as well as Kashmiri Leaders like Farooq Abdullah, Mehboba Mufti, Shah Faesal, Sajjid Lone, Yasin Malik, etc, must be immediately be set free by the Supreme Court if it wishes to enjoy the confidence of the people as a guardian and protector of their Fundamental Rights in the Constitution.
[1]Gulam Abbas v. the State of U.P., AIR 1981 SC 2198:
[2] AIR 1932 Cal 288
[3] AIR 1932 Cal 288
[4] AIR 1939 Rang. 181
[5] AIR 1961 Manipur 12 at pp, 20-21
[6] Babulal Parate Case
[7] AIR 1966 SC 740
[8] Vasant Khale (1934) 36 Bom LR 733
[9] Dr. Anindya Gopal Mitra v. Sate of West Bengal, 1993 Cr LJ 2096(Cal).
[10] Chandra Nath Mukerjee v. Emperor, 1919 Cal 583
[11] Ram manohar v. sundaram, AIR 1995 manipur 41
[12] Prodyot Kumar v Bank of India, 1973 Cr . L.J 1361.
[13]Sarah Abdullah Pilot v. Union Territory of Jammu and Kashmir
[14]Secretary, Ministry of Information & Broadcasting Government of India v. Cricket Association of Bengal (1995) 2 SCC 161 ; Shreya Singhal v. Union of India (2015) 5 SCC 1
[15]AK Gopalan v UOI
[16]AIR 1980 SC 1983: (1980) 4 SCC 531
[17](1979) 4 SCC 370:
[18]Cri LJ 373
[19] Justice K.S. Puttaswamy v UOI SC
[20] (1970) 1 Q.B. 693
[21] AIR 1978 SC 597
This article is authored by SYED ZAINUL HASAN RIZVI and VAREENA RIZVI, student of LL.B (Hons) at UNITY LAW AND P.G COLLEGE LUCKNOW.
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