Are UP Police Correct to Detain Rahul, Priyanka Under Sec 188 IPC?

UP Police claim Section 144 orders restricting movement were in place, which the Gandhis were disobeying.

Rahul Gandhi being stopped by UP Police en route to Hathras.

(Photo: Twitter/ANI UP/Modified by The Quint)

Congress leaders Rahul Gandhi and Priyanka Gandhi Vadra were detained by the UP Police on Wednesday, 1 October, on the Yamuna Expressway, while they were walking to Hathras to meet the family of the Dalit woman who was allegedly gang-raped and murdered.

When stopped by the police, Rahul asked them under which provision he was being arrested. The police responded that he was being arrested under Section 188 of the Indian Penal Code, for violating a Section 144 order.

Gandhi contested this, saying Section 144 applied to an assembly of people, and so would not apply if he proceeded alone. The police did not agree with his argument and detained him, his sister, as well as Congress leaders Adhir Ranjan Chowdhury, KC Venugopal and Randeep Surjewala.

This followed scenes where Gandhi was roughed up while trying to push forward, and claims by him that he and those walking with him were lathi-charged by the police.

Former Congress president Gandhi and his sister, who is Congress general secretary, were initially travelling to Hathras by car when the police stopped their vehicles on the Yamuna Expressway near Noida. They got out of the cars and started walking, only for the police to stop them again.

Noida ADCP Ranvijay Singh initially said that they could not let them proceed as this would be a violation of the ‘Epidemic Act’, which appears to be a reference to the Epidemic Diseases Act 1898, which had been invoked to impose restrictions in several states at the beginning of the coronavirus pandemic. It is unclear which orders passed under this Act are currently in force in Uttar Pradesh.

The justification later became a violation of a Section 144 order during the ADCP’s conversation with Rahul Gandhi.

But what is Section 188 of the IPC? And what is an order under Section 144? Does it only apply to assemblies of people as Rahul Gandhi has suggested?

WHAT IS SECTION 188 OF THE IPC?

Section 188 of the IPC allows the punishment of any person who disobeys a lawful order issued by a public servant. According to the section, if a person knows that there is a lawful order in force, which requires them to abstain from any particular action, and they disobey that order, then they can be punished:

1. if their disobedience causes (or tends to cause) an obstruction, annoyance or injury to a public servant; or
2. causes a riot or affray.

If the disobedience causes obstruction, then they can be punished with imprisonment for up to one month and a fine of up to Rs 200. If the disobedience causes a riot or affray, then they can be imprisoned for upto six months and fined up to Rs 1,000. These punishments obviously come into play upon conviction by a court.

WHAT DOES THIS HAVE TO DO WITH SECTION 144?

It is important to note that the Section 144 in question here is Section 144 of the Code of Criminal Procedure (CrPC), not of the Indian Penal Code.

Section 144 of the CrPC allows a District Magistrate to impose restrictions in the form of prohibitory orders in a particular area, to address urgent cases of nuisance or apprehended danger.

Anyone who violates such a prohibitory order would technically be disobeying an order of a public servant and obstructing a public servant, and therefore would be committing an offence under Section 188 of the IPC.

WHEN CAN A SECTION 144 ORDER BE IMPOSED?

Prohibitory orders under Section 144 can be imposed by a District Magistrate (or an executive magistrate empowered by the government for this purpose) if they think that this is needed to prevent:

• An obstruction to anyone lawfully employed ; or
• A danger to human life or health or safety; or
• A disturbance of the public tranquility, or a riot, or an affray.

These prohibitory orders need to be passed in writing, and need to state the reasons why the magistrate believes there is a risk to public order. Contrary to what many people think, a Section 144 CrPC order can be imposed even against a single person.

Section 144 of the CrPC can be used to ban protests, prohibit public gatherings, and restrict access to certain areas.

SO WHY DID RAHUL GANDHI SAY SECTION 144 CANNOT BE IMPOSED, IF THERE IS NO ASSEMBLY OF PEOPLE?

Rahul isn’t the only person to have this misconception about Section 144 orders.

The public perception that it applies to assembly of more than five persons has come to be because these orders usually refer to prohibition of an “unlawful assembly”, which is defined under Section 141 of the IPC.

Section 141 of the IPC defines an assembly of five or more persons as unlawful if "the common object of the persons composing that assembly is":

• To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legis­lature of any State, or any public servant in the exercise of the lawful power of such public servant; or
• To resist the execution of any law, or of any legal process; or
• To commit any mischief or criminal trespass, or other offence; or
• By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or
• By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

However, as noted above, Section 144 of the CrPC is not restricted to prohibition of unlawful assemblies, and can be used against a single individual as well.

DOES THIS MEAN THE UP POLICE WERE RIGHT TO ARREST THE GANDHIS?

Whether the UP Police were right or wrong depends on whether there was a lawful order in force preventing any movement or gathering in the area where Rahul and Priyanka were at the time of his detention/arrest.

Authorities across the country often impose Section 144 to contain protests, as was seen during the anti-CAA protests a few months ago, and in Jammu and Kashmir following the abrogation of Article 370. The legality of these blanket orders is questionable.

For instance, the Karnataka High Court held that a blanket Section 144 order across the city of Bengaluru in late December 2019 had been illegally imposed by the administration without any actual apprehension of violence.

The Supreme Court also came down heavily on the blanket orders across J&K, some of which continued for months without any specification of any well-founded reasons.

In UP at present, we know Section 144 was imposed in Hathras itself, but it is unclear if there was a valid, lawful order in force at the place where Rahul and Priyanka Gandhi were detained. The police are claiming there was such a Section 144 order, after first talking about the Epidemic Diseases Act.

Unless such an order was passed by a competent magistrate in writing, however, with material to back it up, the detention of the Congress leaders would be illegal.