In the modern systems of governance and administration where autocratic and fully autonomous regimes are at a steep decline, the State finds it difficult to have a direct control and unparalleled authority over population which is it’s most important element. But still, the State possesses an effective tool of power and control ie Curfew. India, being a victim and witness to the colonial regime, has remained a subject to curfew, martial laws and provisions of black laws such as the Rowlatt Act, 1919. These legislations and executive powers in them were used to suppress people and stood totally arbitrary to what we now call as Human Rights or necessary basic Rights. India, with wounds of these bitter inhumane experiences, established the Rule of Law (instead of rule of people) under it’s Bill of Rights for attaining a better and just democratic structure.
Independent India, under Article 14 of it’s sovereign Constitution, provides Rule of Law which means everybody is equal in the eyes of law and none is above law. This is the basis of Fundamental Right to Equality which The Constitution of India confers upon the people of India. But even after more than 70 years of Independence can we confirm the end of arbitrary rule beyond any reasonable doubt? Certainly not, and this becomes much more evident in the times of national unrest, when the state has to impose Curfew to gain administrative effectiveness. Curfew has been recognised by laws throughout the world as an essential tool in the hands of administrative institutions which helps in widening the scope of their power and control.
The word “curfew” comes from the Old French phrase “couvre-feu”, which means “cover fire”. It was later adopted into the Middle class as “curfeu”, which later became the modern “curfew”. Its original meaning refers to a law made by William ‘the Conquerer’ that all lights and fires should be covered at the ringing of an eight o’clock bell to prevent the spread of destructive fire within communities in timber buildings. Under Indian legal system Section 144(1) of The Code of Criminal Procedures, 1973 confers, on Executive, the power of issuance of orders 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 sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 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 safely, or a disturbance of the public tranquility, or a riot, or an affray.
Curfew is an order which is issued in exercise of power conferred by Section 144 of the Code of Criminal Procedures,1973. It is a very essential and legally valid tool but it too comes with some costs. These costs primarily are in reference to the free movement of people which is a Fundamental Right to Freedom of Movement as under Article 19(1)(d) of the Constitution of India. Anyways, this freedom, like other freedoms, is subject to restrictions under Article 19 (5) of the Constitution and is imposed by the State while working in Executive capacity. Though it is laid down under a Code enacted by the legislature but Section 144 of Code of Criminal Procedures, 1973 gives a scope widening injection to the powers of Executive(both government and administration). Therefore, when curfew is imposed, the executive mind overlaps the power of Rule of Law in a direct sense. No much restrictive defining principles, but administrative sense of the State gains prevalence over Legislative capacities as Curfew order, restricting the rights of people, does not come from the elected but from the selected (government is partially selected as electors do not have any say in cabinet formation). Lex terrae, in India, stands for Democracy and rule by representation but when a selected rule, though for short period of time, the rule of law ie. none above law gets overlapped in very indirect senses. It places administration and government above people formally.
The second aspect that clearly establishes the conflict between curfew and Rule of Law is the power of influential during curfew. Influence and power being concentrated arbitrarily in the hands of some people are clearly against the sovereignty of law. Breach of any order(s) issued under Section 144 of The Code of Criminal Procedures, 1973 can attract Section 188 of The Indian Penal Code, 1860. But this has to be read with Section 195 of The Code of Criminal Procedures,1973 which states that no court shall take cognizance of any offence under section 188 of The Indian Penal Code, 1860 unless there is a written complaint by the public servant or his subordinate. This section also lays down provision regarding withdrawal of complaint if the trial, in first instance, is not concluded. Here, the widening scope of Executive power increases probability of discrimination by adminstration. Even if unintentional, discrimination does prevail due to different approaches of various administrative mindsets in power. Influential people have larger capability of just being restricted till the FIR registers without any further trial, conviction or acquittal. They even have an option of complaint withdrawal by the concerned public servant and when influence comes into light the poor and downtrodden are the ones in darkness. The Rule of Law certainly is overlapped here as power and influence or varied administrative mindset can lead to discrimination which is violative of Article 14 of The Constitution of India. Thus the exception of Reasonable classification pertains to procedural loopholes in this case. Offense(s) under Section 188 of The Indian Penal Code, 1860 are cognizable and bailable which clearly means that arrest can be made without any warrant but the accused has a Right to Bail. Bail is a kind of security one pays for his release from custody in return of his co-operation. Therefore, on the basis of this, people can easily avoid prolonged custody by just paying the legally mentioned amount of bail at first instance. Here again, those who cannot pay may face discrimination and equality before law gets defeated as this time the reasonable classification becomes legal and valid.
The system of curfew pass allocation also has power to surpass the Rule of law as the passes are generally issued by the Executive without any statutory framework and again the dependence goes upon the discretion of the administration which increases the scope of arbitrary discharge of power in absence of any direct check or dedicated legislative framework. In absence of pass, a person may even breach the order depending upon Section 81 of The Indian Penal Code, 1860 which lays down a General Exception ie intentionally causing lesser harm to save from greater harm. But a person is rendered accused of the offence in Prime Facie perspective and may be entered upon into FIR, taken into custody or may even face harassment at the hands of enforcement agencies. To secure the Rule of Law and curb the arbitrary power of State over people, in case of Jayantilal Mohanlal Patel v Eric Renison And Anr, 1975 CriLJ 661 The Hon’ble Supreme Court held,” the principle of use of minimum force in order to deal with a law and order situation will, in our opinion, strike even balance between authority on one hand and liberty on the other hand. The threat of shooting at a mere curfew-breaker violates all the principles and legal provisions.”This clearly indicates that Curfew must prevail as a defensive and restrictive measure even if exercised as a tool for larger public good. It cannot overlap the Rule of Law to very large extent but shall be as powerful as to serve the purpose of public good. Recently, in the case of Gulam Nabi Azad v Union of India, Hon’ble Supreme Court held that While exercising the power under Section 144, Cr.P.C., the Magistrate is duty-bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure.
This clearly denotes the fact that such coercive measures like that of curfew do not have a much greater place in modern jurisprudence but it’s need in restrictive form cannot be denied. Curfew does overlap and even sometimes violate The Rule of Law but is the only direct tool to gain administrative control over people during the times of unrest and emergency. Modern societies, with intricacies at a highly increasing trend, need Curfew and curfew like controls but in very restrictive and unbiased sense. Enforcement agencies need to understand and concur to the object and rationale behind curfew while administering it at ground reality and must not give much weightage to just the factum of Curfew. Such approach has greater probability of sustaining Rule of Law even in difficult times as it then goes in the hands of enforcement agencies independently.
Preservation of Rule of Law is only possible if people, for whom this principle was established, actively preserve it. The Rule of law gets overlapped when people are unaware and administration gives much emphasis on the strict enforcement of curfew instead of the object of the curfew.The object behind imposition of curfew, by law, demands and solely stands on larger public interest and so shall the administration of curfew stand. Curfew is the most unwanted weed in the garden of modern legal systems that are governed by human rights but will remain essential and remain existent unless self discipline is inculcated in the population. Population has to understand the scope of rights it possesses along with the restrictions they need to put so as to stop them from confronting rights of the others. Though overlapping with the Rule of Law, which is the basic principle of Democracy, the tool of curfew will exist unless the relations between the government and the governed reach a strong agreeing point. Rule of law requires joint efforts which involve self control and discipline at both ends.
“Democracy without self-control and restraint turns into anarchy. Discipline is the very essence of democracy.” -Jawahar Lal Nehru
About author – This article is authored by Pranav Santvan, He is a 2nd year BA LLB student at UILS Shimla, Himachal Pradesh University, a published poet and a musician.
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