The term `social order' has a very wide ambit which includes `law and order', `public order' as well as `security of the State'. In other words, `social order' is an expression of wide amplitude. It has a direct nexus to the Preamble of the Constitution which secures justice - social, economic and political - to the people of India. An activity which could affect `law and order' may not necessarily affect public order and an activity which might be prejudicial to public order, may not necessarily affect the security of the State. Absence of public order is an aggravated form of disturbance of public peace which affects the general course of public life, as any act which merely affects the security of others may not constitute a breach of public order. The `security of the State', `law and order' and `public order' are not expressions of common meaning and connotation. To maintain and preserve public peace, public safety and the public order is unequivocal duty of the State and its organs. To ensure social security to the citizens of India is not merely a legal duty of the State but a constitutional mandate also. There can be no social order or proper state governance without the State performing this function and duty in all its spheres.The security of India is the prime concern of the Union of India. `Public order' or `law and order' falls in the domain of the State. Union also has the power to enact laws of preventive detention for reasons connected with the security of the State, maintenance of the public order, etc.. The Union or the State is expected to exercise its legislative power in aid of civil power, with regard to the security of the State and/or public order, as the case may be, with reference to Entry 9 of List I, Entry 1 of List II and Entries 3 and 4 of List III of the Seventh Schedule of the Constitution of India. These are primarily the fields of legislation, but once they are read with the constitutional duties of the State under Directive Principles with reference to Article 38 where the State is to secure a social order for promotion of welfare of the people, the clear result is that the State is not only expected but is mandatorily required to maintain social order and due protection of fundamental rights in the State. In Himat Lal K. Shah v.Commissioner Of Police - Supreme Court observed that even in pre-independence days the public meetings have been held in open spaces and public streets and the people have come to regard it as a part of their privileges and amenities. The streets and public parks existed primarily for other purposes and the social interest promoted by untrammelled exercise of freedom of utterance and assembly in public streets must yield to the social interest which the prohibition and regulation of speech are designed to protect.
There is a constitutional difference between reasonable regulation and arbitrary exclusion. The power of the appropriate authority to impose reasonable regulation, in order to ensure the safety and convenience of the people in the use of public highways, has never been regarded as inconsistent with the fundamental right to assembly. A system of licensing as regards the time and manner of holding public meeting on public streets has not been regarded as an infringement of a fundamental right of public assembly or free speech. Supreme Court, while declaring Rule 7 of the Bombay Police Rules ultra vires, stated the principle that it gave an unguided discretion, practically dependent upon the subjective whims of the authority, to grant or refuse permission to hold public meeting on a public street. Unguided and unfettered power is alien to proper legislation and even good governance. The principles of healthy democracy will not permit such restriction on the exercise of a fundamental right. Gulam Abbas & Ors vs State Of U.P. & Ors on 3 November, 1981
the order under sec. 144 Cr.P.C. 1973 is amenable to writ jurisdiction under Art. 32, the same being in exercise of executive power in performance of executive function (It is not a judicial order or quasi judicial order) The entire basis of action under s. 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace and tranquillity. Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to over-ride temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail. It is further well settled that the section does not confer any power on the Executive Magistrate to adjudicate or decide disputes of Civil nature or questions of title to properties or entitlements to rights but at the same time in cases where such disputes or titles or entitlements to rights have already been adjudicated and have become the subject-matter of judicial pronouncements and decrees of Civil Courts of competent jurisdiction then in the exercise of his power under s. 144 he must have due regard to such established rights and subject of course to the paramount consideration of maintenance of public peace and tranquillity the exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are no declared or established rights the power should not be exercised in a manner that would give material advantage to one party to the dispute over the other but in a fair manner ordinarily in defence of legal rights, if there be such and the lawful exercise thereof rather than in suppressing them. In other words, the Magistrate's action should be directed against the wrong-doer rather than the wronged. Furthermore, it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor section of the community rather than prevent a larger section more vociferous and militant. In Haji Mohammed Ismail v. Munshi Barakat Ali and Ors -there was a dispute concerning the conduct of a prayer in a mosque, and there being an apprehension of breach of peace the Magistrate under s. 144 drew up a proceeding and eventually recorded an order that ."no man of either party will be allowed to read prayers in the mosque." The Court held that the order was mis-conceived; that the effect of the order was that no Mohammedan would be allowed to say his prayers in the mosque it was not justified under s. 144 and that the proper course was for the Magistrate to ascertain which party was in the wrong and was interfering unnecessarily with the legal exercise of the legal rights of the other party, and to bind down that party restraining them from committing any act which may lead to a breach of peace. In Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia 1960 AIR 633. In that case, the expression 'in the interest of public order fell to be considered:- Public order" is synonymous with public safety and tranquillity : it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State". Supreme Court observed that the overlap of public order and public tranquillity is only partial. The terms are not always synonymous. The latter is a much wider expression and takes in many things which cannot be described as public disorder. The words 'public order and 'Public tranquillity overlap to a certain extent but there are matters which disturb public tranquillity without being a disturbance of public order. A person playing loud music in his own house in the middle of the night may disturb public tranquillity, but- he is not causing public disorder. Public order' no doubt also requires absence of disturbance of a state of serenity in society but it goes further. It means what the French designate order published, defined as an absence of insurrection, riot, turbulence, or cry of violence. The expression 'public order' includes absence of all acts which are a danger to the security of the state and also acts which are comprehended. by the expression 'order publique' explained above but not acts which disturb only the serenity of others. in Dr. Ram Manahar Lohia v. State of Bihar & Ors. 1966 AIR 740 it was pointed out that for expounding the phrase 'maintenance of public order' :- "One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents the security of the State".
All cases of disturbances of public tranquillity fall in the largest circle but, some of them are outside 'public order' for the purpose of the phrase 'maintenance of public order', similarly every breach of public order is not necessarily a case of an act likely to endanger the security of the State.
Adopting this test Supreme Court said that the State is at the centre and society surrounds it. Disturbances of society go in a broad spectrum from mere disturbance of the serenity of life to jeopardy of the State. The acts become graver and graver as we journey from the periphery of the largest circle towards the centre. In this journey we travel first through public tranquillity, then through public order and lastly to the security of the State. Supreme Court of India
Madhu Limaye vs Sub-Divisional Magistrate, ... on 28 October, 1970 (7 judges bench)
Equivalent citations: 1971 AIR 2486 The gist of action under s. 144 Is the urgency of the siutation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even exparte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. There is no general proposition that an order under section 144, Criminal Procedure Code cannot be passed without taking evidence. (Supreme court upheld the constitutionality of this section and found that it does not infringe article 19 ) In the case of State of Karnataka v. Dr. Praveen Bhai Thogadia, [(2004) 4 SCC 684], Supreme Court, while observing that each person, whatever be his religion, must get the assurance from the State that he has the protection of law freely to profess, practice and propagate his religion and the freedom of conscience, held more emphatically that the courts should not normally interfere with matters relating to law and order which is primarily the domain of the concerned administrative authorities. They are by and large the best to assess and handle the situation depending upon the peculiar needs and necessities within their special knowledge. while dealing with such orders, does not act like an appellate authority over the decision of the official concerned. It would interfere only where the order is patently illegal and without jurisdiction or with ulterior motive and on extraneous consideration of political victimization by those in power. Normally, interference should be the exception and not the rule.. Railway Board v. Narinjan Singh (1969) 3 SCR 548; 554 : (1969)1 SCC 502 that there is no fundamental right for any one to hold meetings in government premises. It was observed:
`The fact that the citizens of this country have freedom of speech, freedom to assemble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please'."
Section 144 Cr.P.C. is intended to serve public purpose and protect public order. This power vested in the executive is to be invoked after the satisfaction of the authority that there is need for immediate prevention or that speedy remedy is desirable and directions as contemplated are necessary to protect the interest of others or to prevent danger to human life, health or safety or disturbance of public tranquility or a riot or an affray. These features must co-exist at a given point of time in order to enable the authority concerned to pass appropriate orders. The expression `law and order' is a comprehensive expression which may include not merely `public order' but also matters such as `public peace', `public tranquility' and `orderliness' in a locality or a local area and perhaps some other matters of public concern too. `Public order' is something distinct from order or orderliness in a local area. Public order, if disturbed, must lead to public disorder whereas every breach of peace may not always lead to public disorder. This concept came to be illustratively explained in the judgment of this Court in the case of Dr. Ram Manohar Lohia (supra) wherein it was held that when two drunkards quarrel and fight, there is `disorder' but not `public disorder'. They can be dealt with under the powers to maintain `law and order' but cannot be detained on the ground that they were disturbing `public order'. However, where the two persons fighting were of rival communities and one of them tried to raise communal passions, the problem is still one of `law and order' but it raises the apprehension of public disorder. The main distinction is that where it affects the community or public at large, it will be an issue relatable to `public order'. Section 144 Cr.P.C. (Section 144 Cr.P.C. is that the right to hold meetings in public places is subject to control of the appropriate authority regarding the time and place of the meeting. Orders, temporary in nature, can be passed to prohibit the meeting or to prevent an imminent breach of peace. Such orders constitute reasonable restriction upon the freedom of speech and expression. This view has been followed consistently by Supreme Court. To put it with greater clarity, it can be stated that the content is not the only concern of the controlling authority but the time and place of the meeting is also well within its jurisdiction. If the authority anticipates an imminent threat to public order or public tranquility, it would be free to pass desirable directions within the parameters of reasonable restrictions on the freedom of an individual. However, it must be borne in mind that the provisions of Section 144 Cr.P.C. are attracted only in emergent situations. The emergent power is to be exercised for the purposes of maintaining public order. ) It was stated by Supreme Court in Romesh Thappar v. State of Madras [1950 SCR 594] that the Constitution requires a line to be drawn in the field of public order and tranquility, marking off, may be roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of peace of a purely local significance, treating for this purpose differences in degree as if they were different in kind. (An order under Section 144 Cr.P.C. being an order which has a direct consequence of placing a restriction on the right to freedom of speech and expression and right to assemble peaceably, should be an order in writing and based upon material facts of the case. This would be the requirement of law for more than one reason. Firstly, it is an order placing a restriction upon the fundamental rights of a citizen and, thus, may adversely affect the interests of the parties, and secondly, under the provisions of the Cr.P.C., such an order is revisable and is subject to judicial review. Therefore, it will be appropriate that it must be an order in writing, referring to the facts and stating the reasons for imposition of such restriction. ) The language of Section 144 Cr.P.C. does not contemplate grant of any time for implementation of the directions relating to the prevention or prohibition of certain acts for which the order is passed against the person(s). It is a settled rule of law that wherever provision of a statute does not provide for a specific time, the same has to be done within a reasonable time. Again reasonable time cannot have a fixed connotation. It must depend upon the facts and circumstances of a given case. There may also be cases where the order passed by an Executive Magistrate under Section 144 Cr.P.C. requires to be executed forthwith, as delay in its execution may frustrate the very purpose of such an order and may cause disastrous results like rioting, disturbance of public order and public tranquility, while there may be other cases where it is possible, on the principles of common prudence, that some time could be granted for enforcement and complete implementation of the order passed by the Executive Authority under Section 144 Cr.P.C. If one reads the entire provision of Section 144 Cr.P.C., then the legislature itself has drawn a distinction between cases of urgency, where the circumstances do not admit to serving of a notice in due time upon the person against whom such an order is directed and the cases where the order could be passed after giving a notice to the affected party. Thus, it is not possible to lay down any straight jacket formula or an absolute proposition of law with exactitude that shall be applicable uniformly to all the cases/situations. In fact, it may not be judicially proper to state such a proposition. It must be left to the discretion of the executive authority, vested with such powers to examine each case on its own merits. Supreme Court of India
Re-Ramlila Maidan Incident Dt ... vs Home Secretary And Ors on 23 February, 2012
1.Once an order under Section 144 Cr.P.C. is passed by the competent authority and such order directs certain acts to be done or abstains from doing certain acts and such order is in force, any assembly, which initially might have been a lawful assembly, would become an unlawful assembly and the people so assembled would be required to disperse in furtherance to such order. A person can not only be held responsible for his own act, but, in light of Section 149 IPC, if the offence is committed by any member of the unlawful assembly in prosecution of a common object of that assembly, every member of such assembly would become member of the unlawful assembly. 2.It is neither correct nor judicially permissible to say that taking of police permission for holding of dharnas, processions and rallies of the present kind is irrelevant or not required in law. Thus, the requirement of associating police, which is an important organ of the State for ensuring implementation of the rule of law, while holding such large scale meetings, dharnas and protests, would not infringe the fundamental rights enshrined under Articles 19(1)(a) and 19(1)(b) of the Constitution. This would squarely fall within the regulatory mechanism of reasonable restrictions, contemplated under Articles 19(2) and 19(3). Furthermore, it would help in ensuring due social order and would also not impinge upon the rights of others, as contemplated under Article 21 of the Constitution of India. The police authorities, who are required to maintain the social order and public tranquility, should have a say in the organizational matters relating to holding of dharnas, processions, agitations and rallies of the present kind. However, such consent should be considered in a very objective manner by the police authorities to ensure the exercise of the right to freedom of speech and expression as understood in its wider connotation, rather than use the power to frustrate or throttle the constitutional right.
3.Refusal and/or withdrawal of permission should be for valid and exceptional reasons. The executive power, to cause a restriction on a constitutional right within the scope of Section 144 Cr.P.C., has to be used sparingly and very cautiously.
4. The authority of the police to issue such permission has an inbuilt element of caution and guided exercise of power and should be in the interest of the public. Such an exercise of power by the Police should be aimed at attainment of fundamental freedom rather than improper suppression of the said right. 5. It is undisputable that the provisions of Section 144 Cr.P.C are attracted in emergent situations. Emergent power has to be exercised for the purposes of maintaining public order.
The material facts, therefore, should demonstrate that the action is being taken for maintenance of public order, public tranquility and harmony. 6. while considering the `threat perception' as a ground for revoking such permissions or passing an order under Section 144 Cr.P.C., `care perception' has to be treated as an integral part thereof. `Care perception' is an obligation of the State while performing its constitutional duty and maintaining social order. 7. Every person/body to whom such permission is granted, shall give an undertaking to the authorities concerned that he/it will cooperate in carrying out their duty and any lawful orders passed by any competent court/authority/forum at any stage of the commencement of an agitation/dharna/ procession and/or period during which the permission granted is enforced. This, of course, shall be subject to such orders as may be passed by the court of competent jurisdiction. WRIT PETITION (CIVIL) NO. 1031 OF 2019
ANURADHA BHASIN VERSUS UNION OF INDIA AND ORS a.The Respondent State/competent authorities are directed to
publish all orders in force and any future orders under
Section 144, Cr.P.C and for suspension of telecom services,
including internet, to enable the affected persons to
challenge it before the High Court or appropriate forum.
b. We declare that the freedom of speech and expression and
the freedom to practice any profession or carry on any
trade, business or occupation over the medium of internet
enjoys constitutional protection under Article 19(1)(a) and
Article 19(1)(g). The restriction upon such fundamentalrights should be in consonance with the mandate under
Article 19 (2) and (6) of the Constitution, inclusive of the test
of proportionality.
c. An order suspending internet services indefinitely is
impermissible under the Temporary Suspension of Telecom
Services (Public Emergency or Public Service) Rules, 2017.
Suspension can be utilized for temporary duration only.
d. Any order suspending internet issued under the Suspension
Rules, must adhere to the principle of proportionality and
must not extend beyond necessary duration.
e. Any order suspending internet under the Suspension Rules
is subject to judicial review based on the parameters set out
herein.
f. The existing Suspension Rules neither provide for a periodic
review nor a time limitation for an order issued under the
Suspension Rules. Till this gap is filled, we direct that the
Review Committee constituted under Rule 2(5) of the
Suspension Rules must conduct a periodic review within
seven working days of the previous review, in terms of the
requirements under Rule 2(6).
g. We direct the respondent State/competent authorities to
review all orders suspending internet services forthwith.
h. Orders not in accordance with the law laid down above,
must be revoked. Further, in future, if there is a necessity to
pass fresh orders, the law laid down herein must be
followed.
i. In any case, the State/concerned authorities are directed to
consider forthwith allowing government websites,
localized/limited ebanking facilities, hospitals services andother essential services, in those regions, wherein the
internet services are not likely to be restored immediately.
j. The power under Section 144, Cr.P.C., being remedial as
well as preventive, is exercisable not only where there exists
present danger, but also when there is an apprehension of
danger. However, the danger contemplated should be in the
nature of an “emergency” and for the purpose of preventing
obstruction and annoyance or injury to any person lawfully
employed.
k. The power under Section 144, Cr.P.C cannot be used to
suppress legitimate expression of opinion or grievance or
exercise of any democratic rights.
l. An order passed under Section 144, Cr.P.C. should state
the material facts to enable judicial review of the same. The
power should be exercised in a bona fide and reasonable
manner, and the same should be passed by relying on the
material facts, indicative of application of mind. This will
enable judicial scrutiny of the aforesaid order.
m.While exercising the power under Section 144, Cr.P.C., the
Magistrate is duty bound to balance the rights and
restrictions based on the principles of proportionality and
thereafter, apply the least intrusive measure.
n. Repetitive orders under Section 144, Cr.P.C. would be an
abuse of power.
o. The Respondent State/competent authorities are directed to
review forthwith the need for continuance of any existing
orders passed under Section 144, Cr.P.C in accordance with
law laid down above.
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