'144 Has Been Imposed': This Report Indicates How Often Delhi Uses Sec 144 & Why

"Perhaps the objective of Section 144 could be laudable...but can it be used like this?" ex-CJI UU Lalit asked.

“144 has been imposed” is how many Indians have come to label the utilisation of extraordinary powers vested in agents of the state to suspend civil liberties in the interests of maintaining public order.

(Photo: PTI/Altered by The Quint)

“144 has been imposed” is how many Indians have come to label the utilisation of extraordinary powers vested in agents of the State to suspend civil liberties in the interests of maintaining public order.

These are the words that appear at the beginning of 'The Use and Misuse of Section 144 CrPC' – an empirical, analytical report on all the Section 144 orders passed in Delhi in 2021. This report by advocates Vrinda Bhandari, Abhinav Sekhri, Natasha Maheshwari, and Madhav Aggarwal is available for public access here.

Speaking at the official launch of the report, former Chief Justice of India UU Lalit expressed alarm at the frequency with which Section 144 orders appear to have been passed. He said:

"Perhaps the objective of Section 144 could be laudable...but can it be used like this?"

He further added: "It is a question of who exercises the powers."

Former Chief Justice of India UU Lalit and Senior Advocate Rebecca John address the report-launch, along with Advocates Vrinda Bhandari and Abhinav Sekhri.

(Image accessed by The Quint)

What Is Section 144?

Section 144 is a provision of the Criminal Procedure Code that gives power to state authorities to issue orders “in urgent cases of nuisance of apprehended danger.”

As per the report:

"The wide discretionary powers under Section 144, CrPC to interdict civil liberties of persons across districts without prior notice or any right to be heard, all in the interests of public order, make Section 144 a truly astounding power to wield...this power has not only proven useful to executive officers in the face of riots, but more recently, it also helped enforce and impose curfews during an unprecedented pandemic."

What Does the Report Find?

"This Report contributes to what we identified as a serious gap in research on Section 144 by offering a ground-level analysis of how the provision is being used over a duration of one year...We hope that our findings help raise the question whether the procedural safeguards, which served as a balm on the judicial conscience while upholding the constitutionality of Section 144, are proving up to the onerous task of defending civil liberties."

The Use and Misuse of Section 144 CrPC (report)

As per the report, Delhi's Section 144 orders can be categorised under the following themes:

1. Establishing CCTV surveillance

• Multiple orders found in at least 15 out of 18 districts and police units/subdivisions

• 77 orders, on an average, issued by each district in the span of one year – lowest (58) in Metro Unit and highest (156) in northeast district

• 25.6 percent of total orders by ACP pertain to CCTV installation

• ATMs, banks, NBFCs and other financial institutions; owners of liquors vends; courier services; girls’ schools, PGs and hotels; amusement parks, and cinema halls, among a large network of private actors, are being asked to install CCTV

2. Regulating Business

• 43 percent of analysed orders pertain to regulating businesses via record and registration requirements

• A common assumption to justify the invocation of Section 144 is that "all the services in question – renting a room, taking a temporary job, sending a parcel, using a cyber cafe, buying a SIM card, dealing in second-hand goods – carry a grave risk to the maintenance of law and order and are used often enough by criminal elements..."

3. Securing public order 

Can be divided into 17 heads, categorised into two groups –

• The archetypal Section 144 order which restricts the right of public assembly

"Contrary to expectation," only 81 of 5,400 orders impose a blanket ban on unlawful assembly.

• Orders issued to regulate a wide variety of activities, most of which are not illegal per se

Over 302 orders issued to prohibit the flying of hot air balloons, UAVs, UASs etc, and 157 to curb the use of “special” or “metallic” manjhas to fly kites

4. Outliers (ie orders that are peculiar "in terms of content and the dragnet they create") include prohibiting medical store owners/sellers from selling drugs without a doctor’s prescription; prohibiting the consumption of tobacco in hookah bars; and orders directing all schools, colleges, educational and coaching institutes, etc, to remain closed to curb air pollution

"These orders reflect the capacity to stretch the fluid text of Section 144 beyond all limits by criminalising anything (from dumping waste in the Yamuna to setting up a namkeen stall near liquor vends) by executive fiat, thereby drastically eroding the sphere for one’s personal liberty," the report found.

Additionally, the report noted that 16.4 percent of its total sample size were orders enforcing restrictions to curb the COVID-19 pandemic.

Some Key Concerns?

"We may not realise it, but at almost every juncture life in New Delhi brings citizens into contact with prohibitory orders under Section 144 in some shape or form."

The Use and Misuse of Section 144 CrPC (report)

The study goes on to reveal the following:

1. Time limits on Section 144 being ignored. Instead, "on display, thus, was a city-wide mechanical process of issuing cyclostyled orders to sustain the legal regime under which the concerned authorities assumed extraordinary powers."

2. Use of section 144 in a routine manner to impose positive obligations, even in cases where there was "no perceptible urgency" at hand. "For instance, an employer is directed to create a surveillance framework qua her employees, or the general public, in a bid to pre-empt offences in the future."

3. None of the orders reviewed by those who carried out the research were directly addressed to a person. "Notably, an online repository of certain Section 144 orders though available, was neither arranged district-wise, nor complete/comprehensive; instead, it appeared that a selection had been provided on the Delhi police’s website without any regularity behind updation."

What Do Legal Experts Say?

"We cannot have such a broad based provision that literally interferes with every aspect of our life."

Senior advocate Rebecca John

In her address at the report-launch, senior advocate Rebecca John lamented the absence of judicial scrutiny "in the kind of orders being passed" under Section 144.

She also pointed out that this provision reminds her of Section 5 (Power for Government to take possession of licensed telegraphs and to order interception of messages) of The Telegraph Act. As per John, that provision is "so misused" as "interception orders are being passed without taking into account limitations of Section 5."

Responding to a question about Section 144's potential for surveillance, John referred to a January 2021 order (quoted on page 71 of the report) which literally says that owing to the “huge transactions of cash and precious metals” and the footfall at Non Banking Financial Companies, it “becomes necessary to have quality surveillance on their day to day functioning.”

Thus, John said, "there is no masking, it is about surveillance."

Further, Bhandari questioned what happens to all the data that is collected in consequence of Section 144 use.

"What is happening to all the data? How long is the data being stored for? Is anybody checking if the data is being deleted?"

During the course of her address, John also said:

"No point saying privacy is a fundamental right if you are going to breach it."

Meanwhile, Bhandari and Sekhri talked about the statutory overlaps created by the use of Section 144, despite the existence of other and perhaps more suitable legislations.

Commenting on the use of Section 144 to enable internet shutdown, Bhandari noted that "the Supreme Court has somewhat made it clear, in Anuradha Bhasin vs Union of India that Section 144 should not be used for this purpose."

Meanwhile, Sekhri pointed out that Section 144 was being used in cyber cafe-related matters, despite the IT Act's capacity to squarely deal with those.

So, when two provisions exist to deal with one purpose, Sekhri asked: "Are there two sets of registers that the authorities are maintaining? Are they doubling the exercise."

"Further research should look into that," he said.

John also criticised the use of Section 144 to curtail a citizen's right to protest. "144 cannot be routine. And unless in exceptional circumstances, it cannot be used to curb your protest," she said.