The Citizenship (Amendment) Act, 2019: Whether the Imposition of Section 144 of the Code of Criminal Procedure Justified?

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For a country to progress, it is important to maintain public order and tranquillity. The state has the onus to protect its citizens and maintain public order clearly. For clarity purposes, Public order is a situation where there is an order in the state of society and the community. It is a state where the citizens can pursue their normal activities of life. Public tranquillity refers to the concerned area which is calm and free from disturbance. It is imperative to note that public order is a broad concept that includes public tranquillity in its ambit. The state uses the CrPC to maintain public order and tranquillity in the country. Section 144 of the Code is the most widely used section to maintain public order.

What is section 144 of the CrPC?

Section 144 is a section in the CrPC that the police use in urgent cases of apprehended danger. Under this, the Magistrate can pass an order against a particular individual. The order can also be against persons residing in a particular area. The Magistrate can also pass it against the public when visiting a particular area. The order remains in force for a period of 2 months. If needed, the Magistrate can extend it for another 4 months. The main aim of Section 144 is to prevent rioting. Nuisance and factors fomenting trouble are common reasons for use of the law. Police can also use it when there is a fear of damage to human life or property.

The section also gives the Magistrate the right to pass an order to stop any gathering of 4 or more people. Even a peaceful assembly who had taken prior permission is ‘unlawful’. Once the assembly is ‘unlawful’, the police have the power to disband any public gathering of 4 or more people. It can also arrest people for not following the orders. Section 144 has had many uses in recent years. In India, in the past 8 months, police have used it at least 10 times. They have also used it many times to disband anti-CAA protests.

Background of the Citizenship (Amendment) Act, 2019 (CAA)

The BJP government passed the CAA on 11 December 2019. The aim of the bill was to amend the definition of an illegal immigrant, specifically, Hindu, Sikh, Parsi, Buddhist, and Christian immigrants from Pakistan, Afghanistan, and Bangladesh. These specific groups of people would be given fast track citizenship. Moreover, they would receive citizenship within 6 years, instead of the standard 12 years. The Act specifies two conditions for this: first, the group should have faced religious persecution in their country, and second, they should have entered India before or on 31st December 2014. Hence, only these groups would benefit from the Act. Though the Government has passed the Act, it is not in force as they have not passed the operative yet.

The reaction to the Act has been on both sides of the spectrum. One side feels that it is important to protect immigrants facing religious persecution. The other side of this spectrum feels that the bill is discriminatory. In fact, there have been various gatherings in support of the Act.

The people opposing the Act state various reasons for doing so. First, they believe that the Act wrongfully excludes Muslims. After all, they also face religious prosecution in the abovementioned countries. They feel that this is in violation of Article 14 of the Constitution of India. Moreover, the Act has led to widespread protests against the Act throughout the country.

The CAA Protests and Use of Section 144 CrPC

The first protest against the CAA was in Assam on 4 December 2019. The protests in Assam turned violent. As a result, the police imposed Section 144 throughout the state. They arrested over 1000 people and also cut off internet connections in the state.

Since then, various protests against the Act have taken place all over the country. The most noted protests were the ones taking place in Delhi. These were in Jamia Millia Islamia and the Aligarh Muslim University. Both these protests turned violent. Due to this, the police imposed Section 144 in the areas surrounding the universities. They arrested around 100 students. Further, about 200 students got injured in clashes with the police.

In December 2019, police banned protests in several parts of India. They used Section 144 for this too. They banned protests in parts of New Delhi, Uttar Pradesh, and Karnataka. Protesters in Bangalore used footwear to express their dissent. Since then, there have been various instances where police have imposed Section 144. It is pertinent to note that they have even done this for protests that were peaceful.

Is the imposition of Section 144 justified?

Many people have asked this question time and again. Is Section 144 constitutionally valid? Can police justify the use of Section 144 for disbanding peaceful protests? The Court dealt with this question in Madhu Limaye vs Sub-Divisional Magistrate. This not only stated that Section 144 was a valid law but also gave guidelines for use of this section. These aim at balancing the right of freedom of speech and limitations under Article 19.

However, the issue still remains contentious. The Madhu Limaye case clearly states that use Section 144 should be when there is a danger of violence breaking out. But, the government has been allegedly using it for quashing dissent against the Act. The Karnataka HC declared the order of Section 144 passed in the city of Bangalore ‘illegal’. It said that the order was not in line with the guidelines laid down by the Supreme Court. The Bench also stated that they only examined the decision-making process. They did not examine the correctness of the order.

Conclusion

Section 144 is undoubtedly an important provision for a country like India. It is needed to ensure public order in the country. However, the use of section 144 for peaceful protests should not be encouraged. The issue, here, is the justification given by the Magistrates for its use. Magistrates have passed orders of Section 144 only because of ‘apprehension of danger’. On the contrary, the author suggests that there must be a well-founded reason for passing the order.

Protests are very important in a democracy. They are a sign of a healthy functioning democracy, where people can value opposing ideas. The mere chance that a protest may turn violent should not be a ground for imposing Section 144. There must be a balance between the right of freedom of speech and the maintenance of public order. Without this balance, it will be difficult to progress as a country.


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