Will SC end prolonged misuse of Section 144?

By Shastri Ramachandaran. Dated: 1/20/2020 12:39:30 AM

Recently the Supreme Court struck a blow for two important freedoms. It made accessing fundamental rights through use of Internet a fundamental right. And, it held out hope of ending government's abuse of authority by its indiscriminate imposition of Section 144 of the Criminal Procedure Code (CrPC) for prolonged periods.
It is high time the country is freed from the tyranny of Sec 144, which has been blatantly misused by all political parties in office. This more than 150-year-old British-era law was used to suppress protests and keep people from assembling during the freedom struggle. Ironically, in independent India, Sec 144 has been used to crush democratic expression even more ruthlessly.
Freedom from Sec 144 as a fundamental right is still a far cry although the Supreme Court has now given cause for hope.
Why do the authorities in India invoke Sec 144 so frequently and impose it for such long spells? Because it has proved to be the most effective instrument to put down protests, to prevent people assembling and practically enforce curfew-type restrictions in perfectly normal conditions for the authoritarian purpose of thwarting citizens from exercising their constitutional rights and freedoms.
Like much else that is abhorrent in Indian politics today, Sec 144, too, has its origins in Gujarat. It was created, drafted and first used by the British in the State of Baroda in 1861 to suppress nationalist protest during the freedom struggle. In the decades thereafter, during the British Raj, Sec 144 was regularly enforced to pre-empt and crack down on freedom fighters and their activities.
This powerful tool of colonial repression continues to be a weapon of choice for the authorities to abort peaceful protests and demonstrations. Its rampant (mis)use - in violation of the rules and conditions for its use - continues unchecked, and for prolonged periods on the pretext of maintaining public order. Ironically, the ruling cultural nationalists of today see no contradiction in (mis)using an instrument that was so useful for the colonial police to subjugate and terrorise the natives; and, the misuse of this Raj-era law, which the Supreme Court held, on January 10, to be abuse of authority, is in defence of so-called nationalism.
The verdict of a bench headed by Justice N V Ramana came on a batch of pleas which challenged curbs - such as suspension of Internet and prolonged use of Sec 144 -- imposed in Jammu and Kashmir after the Centre abrogated provisions of Article 370 on August 5 last year.
The petitions questioning the restrictions in the Kashmir Valley were filed, among others, by Congress MP Ghulam Nabi Azad and Anuradha Bhasin, Executive Editor of Kashmir Times.
On November 21, the Centre had justified restrictions imposed in Jammu and Kashmir after the abrogation of provisions of Article 370. However, the apex court did not appear convinced by the arguments advanced to justify Internet suspension and imposition of prohibitory orders (under Sec 144).
The court held that repetitive orders of Sec 144 is "abuse of power"; use of Sec 144 (in J&K) can't be repetitive and need to be justified; powers under 144 cannot be used to suppress legitimate expression but needs to be justified by concerns of immediate violence; "Sec 144 CrPC (prohibitory orders) cannot be used as a tool to suppress difference of opinion"; magistrates while passing prohibitory orders, should apply mind and follow the doctrine of proportionality.
Ruling that blanket orders will no longer stay in J&K, the administration was asked to review all Sec 144 orders within a week. The SC also ordered the J&K administration to review all restrictive orders, including Internet suspension, within one week. The Supreme Court said all orders, from now on, should be placed in the public domain with the necessary information so they can be challenged legally.
This puts the executive on notice. It is no less a test of the judiciary, for it remains to be seen whether the court can, in practice, check such authoritarian excesses and make the administration lift the oppressive lid of restrictions under which people of J&K are being stifled.
These have consequences far beyond J&K. What is being done in J&K is perceived to be a rehearsal for a similar crackdown. There are fears of assaults on rights and freedoms across the country to crush the spreading protests against the CAA, NPR and NRC. Should the government get away with what it has done in J&K, then it would be emboldened to replicate these across India. Secondly, if the SC's intervention ends the reign of Section 144 in J&K, other state governments may be inhibited from imposing it without good reason; and, if they do, citizens would be stirred to oppose it.
On a different note, this is a good opportunity for non-BJP governments to publicly proclaim an end to the continued abuse of authority in the form of frequent recourse to Sec 144 and its prolonged imposition.
Thus, the people of not only J&K but the rest of India too are interested in seeing the judiciary help actualise the hopes it has given rise to.
(The author is Editorial Consultant, WION TV. Views expressed are personal.)



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