“Dhara 144 lag gaya/Section 144 has been imposed.” Most Indians associate this phrase with a period of disquiet or exigency, followed by a suspension of civil liberties (the internet, gatherings of four or more people, etc.) to maintain public order.For example, recently Section 144 of the Code of Criminal Procedure, 1973 was imposed across the state of Uttar Pradesh after gangsters-turned-politicians Atiq and Ashraf Ahmed were shot dead in Prayagraj. Then on Ram Navami, when clashes erupted in pockets across the country. In both situations, internet shutdowns and bans on public gatherings were used to ensure public order.Section 144 became more colloquially known during the COVID-19 pandemic, when it started being used to enforce social distancing norms, including regulating the seating capacity of commercial establishments and the number of people permitted to attend social gatherings. Politicians, police and overzealous Residents’ Welfare Association members alike quoted Section 144 to impose and enforce curfews.When we (Vrinda Bhandari, Abhinav Sekhri, Madhav Aggarwal and myself) started studying the provision — a study prompted by its seemingly increased use, especially during the pandemic, farmers’ protests and protests against the Citizenship (Amendment) Act — we first searched for a repository of Section 144 orders, which would enable us to understand the contours of the provision. It was the lack of a comprehensive repository that prompted us to file RTIs seeking copies of all the orders passed in Delhi in the year 2021.When we filed these RTIs, we assumed that there would be 500-1,000 orders passed during the year, mostly limited to use as crowd and riot control mechanisms and Covid-era restrictions. We could not have been farther from the truth. A little less than a year later, we had collated a whopping 5,400 orders.Originally promulgated to empower a magistrate (in Delhi, this includes senior police officials such as assistant commissioners of police) to issue directions to persons to either abstain from certain conduct or to direct persons in control of some property to specifically engage in certain conduct if “immediate prevention or speedy remedy is desirable” and if a magistrate considered that directions are “likely to prevent” or “tend to prevent”, any “obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety or a disturbance of the public tranquillity, or a riot, or an affray”, we found that the police have been, in effect, expanding the scope of Section 144. Slowly but steadily, it has morphed into a hydra-headed monster; a convenient and limitless police-made tool to control everyday life.Section 144 – a provision designed to be an emergency power for the magistracy to resort to to nip any threats to public order in the bid to preserve the status quo — is being used by the police to successfully criminalise selling drugs such as Corex and Iodex without a prescription, flying kites with metallic or glass-coated manjhas, and opening a paan shop near educational institutions. The police, therefore, have been acting as quasi-legislators at the local level.To compound the problem, disobeying an order passed under Section 144 can attract a punishment of up to one-month simple imprisonment or a fine up to Rs 200 under Section 188 of the IPC.Upon analysis, we classified the 5,400 orders collected into 56 categories and grouped them under 4 themes:1. Orders establishing CCTV surveillance: 6% of the total number of orders we collected were passed to direct private actors to install CCTVs. Essentially, these orders create a panoptic state where you may be surveilled while going to college, withdrawing money, watching a movie, or even while filling gas at a petrol pump. Private actors such as liquor vendors, banks, NBFCs, financial institutions, hotel owners, and owners of amusement parks are required to not only install CCTVs, but, in some cases, monitor and preserve the footage and hand it over to the police when demanded — all in the interest of public safety. Notably, the orders do not prescribe any safeguards to regulate the use, storage, sharing and deletion of sensitive personal data collected via these CCTVs.2. Orders regulating businesses through compulsory record and register of documents: 43% of the total number of orders analysed by us pertained to regulating businesses through record and registration requirements. For instance, ATMs and bank branches are required to maintain a database of all employees, cab drivers, security guards; maintain a digital record of all visitors; and deploy armed security guards. The common thread in these orders is an assumption that all the services in question — renting a room, taking a temporary job, sending a parcel, using a cyber cafe, buying a SIM card, dealing in second-hand goods — carry an amorphous risk of terrorism, law and order, etc.3. Orders passed to secure public order: The third category of orders comprised those which regulated activities which are not per se illegal, but are likely to disturb public tranquility. Within the orders passed to secure public order, we grouped orders which restrict the right of public assembly by prohibiting gatherings of persons in groups of five or more, thereby preventing protests, dharnas and large meetings under a separate head. Contrary to expectation, our data revealed that these orders, though considered archetypal, were surprisingly low in number. In our database of around 5,400 orders, only 81 impose a blanket restriction on unlawful assembly.4. Outlier orders, or orders that were so peculiar, both in terms of content and the dragnet that they create, that we decided to highlight them in a different section: The obvious vagueness of the text of Section 144 enables police to criminalise a broad range of activities, without much debate and without any review. As a result, magistrates, or in Delhi’s case, the police, have created a burgeoning list of crimes/positive obligations/prohibitions which mercilessly stifle everyday activities. Some orders prohibited medical store owners from selling drugs without a doctor’s prescription and prevented a namkeen stall from being set up within 100 metres of any liquor store, others prohibited throwing of material or waste into the river Yamuna.Curiously, all the orders we examined were ex parte, cyclostyled, i.e. they were issued month after month, without any review or change, and not published, thereby depriving aggrieved persons of their right to challenge any order. This is violative of multiple judgments of various high courts, the Supreme Court and the provision itself. These findings are startling, to say the least. Section 144’s tentacles ensnare each and every resident of Delhi, if not India, and we come into contact with it at almost every juncture of life. Its use, in this form and scope, is completely illegal.We hope that this report spawns conversation and review, if not a complete overhaul of Section 144 of the CrPC.Natasha Maheshwari is a lawyer practicing in Delhi, and co-author of the report ‘The Use and Misuse of Section 144 CrPC: An Empirical Analysis of all the Orders Passed in 2021 in Delhi’. The report can be found here.
