The ultimate purpose of Section 144 is to maintain peace and order in the areas where trouble could erupt to disrupt the regular life.
Duration of Section 144 Order:
No order under this section can remain in force for a period of more than 2 months.
Under the state government’s discretion, it can choose to extend the validity for two more months with the maximum validity extendable to six months.
Once the situation becomes normal, Section 144 levied can be withdrawn.
What is the Difference between Section 144 and Curfew?
Section 144 prohibits the gathering of four or more people in the concerned area, while during curfew people are instructed to stay indoors for a particular period. The government puts a complete restriction on traffic as well.
Markets, schools, colleges and offices remain closed under the curfew and only essential services are allowed to run on prior notice.
Why has this Section been Criticized?
Gives Absolute Power:
It is too broad and the words of the section are wide enough to give absolute power to a magistrate that may be exercised unjustifiably.
The immediate remedy against such an order is a revision application to the magistrate himself.
Dr Ram Manohar Lohiya case 1967: The Supreme Court held that “no democracy can exist if ‘public order’ is freely allowed to be disturbed by a section of the citizens”.
‘Madhu Limaye vs Sub-Divisional Magistrate, 1970:
A seven-judge Bench headed by then Chief Justice of India M Hidayatullah said the power of a magistrate under Section 144 “is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny.
The court, however, upheld the constitutionality of the law, ruling that the restrictions imposed through Section 144 are covered under the “reasonable restrictions” to the fundamental rights laid down under Article 19(2) of the Constitution.
The Court held that the fact that the “law may be abused” is no reason to strike it down.
In 2012, the Supreme Court criticised the government for using Section 144 against a sleeping crowd in Ramlila Maidan.
The court held that such a provision can be used only in grave circumstances for maintenance of public peace.
The efficacy of the provision is to prevent some harmful occurrence immediately. Therefore, the emergency must be sudden and the consequences sufficiently grave.
The Supreme Court also held that such a section cannot be used to impose restrictions on citizens' fundamental right to assemble peacefully, cannot be invoked as a 'tool' to 'prevent the legitimate expression of opinion or grievance or exercise of any democratic rights'.
Section 144 is a useful tool to help deal with emergencies. However, absence of any narrow tailoring of wide executive powers with specific objectives, coupled with very limited judicial oversight over the executive branch, makes it ripe for abuse and misuse.
Before proceeding under this section, the Magistrate should hold an enquiry and record the urgency of the matter.
There is a need to balance the granting of plenary powers by the legislature to deal with emergent situations, and the need to protect the personal liberty and other freedoms granted to the citizens under the fundamental rights of the Constitution.