Video Editor: Vishal Kumar
On 8 August, three days after the abrogation of Article 370, with Kashmir under lockdown, Pratap Bhanu Mehta issued a warning in his column in the Indian Express.
“The BJP thinks it is going to Indianise Kashmir. But, instead, what we will see is potentially the Kashmirisation of India: The story of Indian democracy written in blood and betrayal.”
It has taken only four months for this warning to come true.
Faced with the prospect of protests and dissent across the country against the controversial Citizenship Amendment Act (CAA) the BJP has decided to respond with the strategy it used to stifle all voices of disagreement from Jammu & Kashmir, in other parts of the country.
The Kashmir Playbook
Internet bans keep voices from the Northeast silent, protesters are killed in Assam, Akhil Gogoi is booked under the UAPA using the BJP’s convenient amendment to the draconian law...
We’re just seeing official messages from cellphone providers of internet and SMS services being suspended in Central and in south Delhi.
Student protesters in Delhi have already been thrashed by the police, who entered hostels, libraries, spewed tear gas shells with wild abandon, and even, as can now be seen on video, fired guns at them.
And now, orders for the imposition of Section 144 across the country to prevent protests from taking place are being issued.
From the few areas in Delhi which aren’t already under it, to the whole city of Bengaluru, and other parts of Karnataka, to other cities like Ahmedabad, have seen restrictions being imposed, as have parts of the Northeast.
In Bengaluru and in Delhi, the police have recalled all the permissions already given to protesters, citing Section 144 orders.
Of course, the best tribute act to Indian actions in Kashmir comes from Yogi Adityanath’s Uttar Pradesh, where Section 144 has been imposed across the ENTIRE state.
It should go without saying that such actions are illegal and unconstitutional violations of the fundamental rights of the people of this country.
However, we somehow live in a country where government propaganda, WhatsApp forwards and the dedicated work of armies of social media trolls means even something as basic as this is contested.
And of course, Kashmir remains under an internet shutdown, and restrictions under Section 144 were happily used there for months without even the Supreme Court doing anything about it all – so, evidently, you can get away with this kind of repression if you want.
That doesn’t make any of this legal, though.
What Is Section 144?
But here, let’s focus on Section 144 orders, which are the most pressing ones as they can be used to stop even peaceful protests.
This is a power given to District Magistrates or other designated Executive Magistrates under Section 144 of the Code of Criminal Procedure or CrPC, to prevent and address urgent cases of nuisance or apprehended danger.
They can be used to direct people to abstain from a certain act, if the Magistrate considers that it is needed to prevent:
- obstruction to anyone lawfully employed,
- danger to human life or health or safety,
- 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 material facts of the case at hand. Contrary to what many people think, a Section 144 CrPC order can be imposed even against a single person – it’s Section 144 of the IPC that includes something about five or more persons, as it deals with unlawful assembly under Section 141 of the IPC.
Now a reminder: We do have a fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India. And a fundamental right to assemble peaceably and without arms under Article 19(1)(b).
The Constitution does envisage reasonable restrictions to these, but they have to be reasonable, and have to satisfy the requirements of Article 19(2) and 19(3).
The Supreme Court has had to look at Section 144 orders many times over the decades, and they’ve held that such orders need to satisfy the following conditions:
- From the Madhu Limaye case (1970): The imposition of the restrictions has to be in pursuance of grounds specifically listed in Article 19. So, the reason for whipping out a 144 order which infringes on the right to freedom of speech has to be in the interests of the sovereignty and the integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality. If we’re looking at a 144 order restricting peaceful assembly, the ONLY grounds are the sovereignty and the integrity of India or public order or morality.
- From the Babulal Parate case (1961): A 144 order can be issued only in cases of emergency, where the threat to public order is “imminent” and “genuine” and not merely “likely”.
- From the Ramlila Maidan Incident case (2012): The measures imposed must be the least restrictive or least invasive measures possible.
- From the Madhu Limaye case and the Gulam Abbas case (1981). The orders, as a general rule, must be against the wrongdoer and not against innocent civilians, merely on grounds of convenience or expediency.
That written order, as aforementioned, that has to be there for 144 orders, has to satisfy these issues. It can’t just be a DM saying, “Oh I think this protest is going to be difficult to manage, so let’s just use Section 144 to stop it so I can take my post-lunch siesta.”
The 144 order can only be imposed if there is an imminent threat to public order, for which there has to be some actual material with the DM.
Why Current 144 Orders Are Illegal
The 144 orders imposed across the country right now do NOT satisfy this requirement. Just listen to the utter waffle spouted by the DCP of Bengaluru, who says 144 is being imposed because there are so many protests. So what? That’s what a democracy is supposed to be like, you know...
Oh, and that protests around the country have led to disturbances. So what? Has there been trouble in your city, good sir? Have you got any credible inputs suggesting there is an imminent threat of violence in your city if the protests go on?
Maybe you didn’t know this about the law, which you really are supposed to, but you’re going to find that out now that your blatantly illegal orders are being challenged in the Karnataka High Court.
The State of UP still takes the cake, however, thanks to its imposition of Section 144 across the whole State. Which, by the way, runs contrary to the government’s submissions in the Supreme Court cases challenging the restrictions imposed in Kashmir, where they insisted restrictions were imposed on a police station to police station basis, based on inputs in each area.
By imposing Section 144 across UP, the BJP government there has opened itself to all these orders being struck down for lack of application of mind, for them to be considered over-broad.
It probably needs to be reiterated that the things which happened in Jamia Millia Islamia and Aligarh Muslim University are NOT grounds for imposition of Section 144 in other parts of the country. Every 144 order has to be area-specific, and cannot be imposed by the government itself but only by local authorities, who have to have material which supports the imposition of the same.
Even with respect to Jamia and AMU, let’s be clear that the police acted with excessive force, and so it would be perverse for them to use the situation created by them as grounds for further restriction of civil liberties.
The kind of restrictions the government wants to impose are the sort that only apply when there has been a declaration of a State of Emergency under Article 352 of the Constitution. Using Section 144 to avoid the negative corollaries of such a move may be a ‘masterstroke’ in the government’s mind but is not supported by the law, and citizens need to demand that the government follow the rules if they want to pull something like this on us.
Can We Expect Courts to Stand Up?
As these Section 144 orders clearly violate the law, it is hoped that the authorities revoke them immediately, and allow people to exercise their right to protest peacefully against a law which they believe to be unjust and unconstitutional. The majority of the ruling party does not mean people lose their right to dissent.
Of course, since the government is behind these orders, it looks like we’ll have to rely on the courts to stand up for the rule of law and our constitutional rights.
Unfortunately, the Supreme Court has failed to do its job when it comes to Kashmir. The cases challenging the restrictions were not heard for three months, after former CJI Ranjan Gogoi couldn’t find the time to hear them in light of the Ayodhya case.
It was eventually transferred to a different Bench, which conducted several hearings on an almost day-to-day basis. They reserved judgment on 27 November… and that’s been pretty much it, with no judgment possible till 6 January at the earliest. This approach of the court could very well be the reason why the BJP feels emboldened enough to use Section 144 in this manner throughout the country.
We can only hope that the high courts across the country are more responsive to these unreasonable restrictions on our fundamental rights, and that they will treat these situations with the urgency that they deserve.
Otherwise, the disgraceful way India has treated its own people in Kashmir, the way we’ve treated people in the Northeast, is going to be the only ‘normalcy’ we’ll ever know.
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