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Bano Bee Petitioner v. Uoi And Anr S
Structured Summary of the Opinion (Dipak Misra, CJ; Manmohan, J.) — 02 August 2010
Factual and Procedural Background
The petitioner invoked this Court's jurisdiction under Article 226 of the Constitution challenging the legal substantiality and tenability of an order dated 6 July 2010 passed by the Deputy Commissioner of Police (DCP). The impugned order was made under Section 144 of the Code of Criminal Procedure, 1973 read with Notification No. 11036/1/08-UTL dated 31.10.2008 issued by the Government of India, Ministry of Home Affairs, New Delhi, and prohibited certain activities in a specified area.
The petitioner, a member of the Bhopal Gas Pidit Mahila Stationary Karamchari Sangh, had come to Delhi with other activists to protest the failure of the Government of India to set up an empowered commission to address problems of victims of the 1984 Union Carbide gas leak; the protest was frustrated by the impugned prohibitory order.
On admission motion, the Court heard counsel for the petitioner (Mr. Prashant Bhushan) and counsel for respondents (Ms. Jasbir Kaur for respondent No.1 and Mr. N. Waziri for respondent No.2). The Court, after referring to relevant precedent, stated that it was inclined to issue notice. The formal orders made were: issue notice; no requisites to be filed as respondents had entered appearance; counter-affidavits to be filed within two weeks; rejoinder within one week thereafter; matter listed for 25 August 2010.
Legal Issues Presented
- Whether the DCP's order dated 6 July 2010, issued under Section 144 Cr.P.C. read with a Ministry of Home Affairs notification, is legally sustainable.
- Whether the routine or repetitive issuance of prohibitory orders under Section 144, absent any emergent situation, is permissible or amounts to an abuse of power.
- Whether the impugned prohibitory order (and similar orders) extinguishes or unreasonably restricts the fundamental right to assemble peacefully under Article 19(1)(b) (and alleged violations of Article 19(1)(a) and (b)).
- Whether the impugned order provides any objective criteria for granting or refusing permission to hold demonstrations/dharna, or improperly vests unfettered discretion in the police authority.
Arguments of the Parties
Petitioner's Arguments (as recorded)
- The Delhi Police has been issuing prohibitory orders under Section 144 Cr.P.C. in a routine, repetitive manner without any emergent situation that would justify such extraordinary power.
- The impugned order lacks any stated criteria for permitting or refusing permission to hold peaceful assemblies (dharnas, public meetings), leaving the decision to unfettered police discretion.
- Such routine use of Section 144 results in unreasonable restrictions and effectively destroys the fundamental right to assemble peacefully guaranteed by Article 19(1)(b); petitioner also alleges violation of Article 19(1)(a).
- The prohibitory orders in the central/prohibited area (described as the centre of power) deny access to the most effective location for political protest, thereby infringing fundamental rights.
- Reliance was placed on Himmat Lal K. Shah v. Commissioner of Police, Ahmedabad (1973) 1 SCC 227 (as supporting authority for challenge).
The opinion does not set out detailed arguments advanced on behalf of the respondents; their counsel merely entered appearance on the question of admission.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta & Anr., AIR 1984 SC 51 | Repetitive/prolonged prohibitory orders under Section 144 are improper; Section 144 is intended for immediate prevention of breach of peace; orders by a Magistrate are valid for two months under s.144(4), and the proviso permits State Government extension only up to six additional months; scheme does not contemplate repetitive successive orders and such repetition may amount to abuse. | The Court relied on this decision's exposition of law regarding the limited, temporary character of Section 144 orders and the impropriety of making successive orders; this authority formed the principal legal foundation for issuing notice in the present matter. |
| Babulal Parate v. The State of Maharashtra & Ors., AIR 1961 SC 884 | Upheld the vires of Section 144 and recognised that anticipatory action in an emergency where danger to public order is genuinely apprehended is competent and is an action taken in discharge of duty to maintain order. | The Court cited the decision to emphasize that Section 144 is intended for emergency/anticipatory action to maintain public order but must be temporary in character; it supports legality of Section 144 when used for genuine emergencies. |
| Himmat Lal K. Shah v. Commissioner of Police, Ahmedabad, (1973) 1 SCC 227 | Relied upon by the petitioner (the opinion records reliance but does not summarize the decision's rule or principle). | The Court noted the petitioner relied on this decision; the opinion does not elaborate its content further and instead proceeded to consider Acharya Jagdishwaranand (supra). |
| Gopi Mohun Mullick v. Taramoni Chowdhrani (Full Bench of 12 Judges) | Held that making successive orders (corresponding to present Section 144) beyond the Magistrate's powers was improper (examining the earlier Code provision corresponding to present Section 144). | Referenced in Acharya Jagdishwaranand and adopted as part of the line of authority establishing that successive repetitive orders are not legitimate. |
| Bishessur Chuckerbutty v. Emperor (Calcutta High Court Division Bench) | Disapproved making successive prohibitory orders after earlier orders lapsed by efflux of time. | Referenced as supporting the proposition that successive/repetitive orders under the corresponding provision are beyond lawful powers. |
| Swaminatha Mudaliar v. Gopalakrishna Naidu; Taturam Sahu v. State of Orissa; Ram Das Gaur v. City Magistrate, Varanasi; Ram Narain Sah v. Parmeshar Prasad Sah | Taken as authorities supporting the view against making successive/repetitive prohibitory orders under the provision corresponding to present Section 144. | Referred to collectively in Acharya Jagdishwaranand as forming a correct statement of law that repetitive orders are impermissible and amount to abuse of power. |
Court's Reasoning and Analysis
The Court examined existing authority, principally the decision in Acharya Jagdishwaranand Avadhuta (AIR 1984 SC 51), which analyses the purpose and temporal limits of Section 144 Cr.P.C. The key analytical points, as adopted by the Court, are:
- Section 144 is intended for immediate prevention of breach of peace or for speedy remedy; it is inherently emergency/temporary in character.
- Under sub-section (4) of Section 144 a Magistrate's order is valid for two months; the proviso allows the State Government to extend the order for a further period not exceeding six months beyond that, indicating Parliament did not intend a Magistrate's order to remain in force beyond the two-month period except by the specific proviso mechanism.
- Several High Court decisions and Full Bench authority have taken the view that it is not legitimate to issue successive orders after earlier orders have lapsed; repetitive orders circumvent the time limits and the emergency character of Section 144 and therefore amount to an abuse of the power conferred.
- Where longer or different processes are warranted, the appropriate statutory mechanisms (for example Sections 107 or 145 Cr.P.C., or provisions of the Police Act) should be used rather than serial Section 144 orders.
- Given these legal principles and the petitioner's assertions that prohibitory orders have been issued routinely without emergent situations and without objective criteria, the Court found the question raised merited notice and further adjudication rather than summary dismissal at the admission stage.
Holding and Implications
NOTICE ISSUED
Direct consequences ordered by the Court:
- Notice is issued on the petition challenging the DCP order dated 6 July 2010.
- As counsel for respondents had appeared, no requisites were ordered to be filed.
- Counter-affidavits were directed to be filed within two weeks; rejoinder, if any, within one week thereafter.
- The matter was listed for hearing on 25 August 2010.
Implications: The Court's order at this stage is procedural — it does not decide the substantive challenge to the impugned order but treats the legal issue (routine/repetitive use of Section 144 and alleged infringement of Article 19 rights) as sufficiently arguable to merit issuance of notice. The opinion applies and reiterates existing authority emphasizing the temporary, emergency character of Section 144 and signals scrutiny of repetitive use; the Court did not purport to lay down any new precedent in the operative order recorded here.
Bench: Dipak Misra, CJ; Manmohan, J. — Date of order: 02 August 2010.
DIPAK MISRA, CJ
In this public interest litigation, the petitioner invoking the jurisdiction of this Court under Article 226 of the Constitution of India has called in question the legal substantiality and tenability of the order dated 6th July, 2010 passed by the Deputy Commissioner of Police whereby he has, in exercise of powers conferred on him under Section 144 of the Criminal Procedure Code, 1973 (for short ‘the Code’) read with Notification No. 11036/1/08-UTL dated 31.10.2008 issued by the Government of India, Ministry of Home Affairs, New Delhi passed an order prohibiting certain activities.
2. It is urged in the petition that the Delhi Police has been issuing such prohibitory orders from time to time as a result of which the fundamental right to assemble peacefully under Article 19(1)(b) of the Constitution which includes holding peaceful dharna, demonstration, etc. has been destroyed. It is contended that the impugned order does not indicate any criteria for granting or refusing permission. It is completely left to the discretion of Delhi Police as a consequence of which the permission to hold dharna, public meetings in the entire prohibited area which is the centre of power and best suited for political dharna is denied.
3. It is averred that the petitioner is one of the members of ‘Bhopal Gas Pidit Mahila Stationary Karamchari Sangh’ who had come along with other activists to Delhi to raise a protest because of the failure of the Government of India to set up an empowered commission to look into the problems of the victims of toxic gases leak from the plant of Union Carbide in 1984, but the same has become unfruitful because of the order passed by the Deputy Commissioner of Police. Reference has been made to Section 144 to show that in total violation of the said provision, the Delhi Police have been issuing orders under Section 144, Cr.PC in a routine manner without there being any emergent situation. It is the case of the petitioner that the said orders create unreasonable restriction which affects the fundamental right of the petitioner. It is urged that the prohibitory orders are in total violation of Article 19(1)(a) and (b) and the same have been issued without any basis and thereby tantamounts to abuse of the process of the mandate contained in Section 144 of Cr.PC
4. We have heard Mr. Prashant Bhushan, learned counsel for the petitioner and Ms. Jasbir Kaur, learned counsel for respondent No. 1 and Mr. N. Waziri learned counsel for respondent No. 2 on the question of admission. It is submitted by Mr. Bhushan that the orders have been passed one after the other in a routine manner without the authority addressing to the emergent nature and taking recourse to power conferred on it under Section 144 Cr.PC which is impermissible. It is propounded by him that the prohibitions that have been stipulated in the order are violative of fundamental rights and the right to protest is totally extinguished. To buttress the submission, he has placed reliance on the decision in Himmat Lal K. Shah v. Commissioner of Police, Ahmedabad (1973) 1 SCC 227.
5. Ordinarily we would have dealt with the law laid down in Himmat Lal K. Shah Case (supra) and another decision rendered in Babulal Parate v. The State of Maharashtra & Ors., AIR 1961 SC 884 by the Constitution Bench, but we have come across a decision in Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta and another, AIR 1984 SC 51, wherein it has been held as follows:
“.….The other aspect, viz., the propriety of repetitive prohibitory orders is, however, to our mind a serious matter and since long arguments have been advanced, we propose to deal with it. In this case as a fact from October 1979 till 1982 at the interval of almost two months orders under Section 144(1) of the Code have been made from time to time. It is not disputed before us that the power conferred under this section is intended for immediate prevention of breach of peace or speedy remedy. An order made under this section is to remain valid for two months from the date of its making as provided in sub-section (4) of Section 144. The proviso to sub-section (4) authorises the State Government in case it considers it necessary so to do for preventing danger to human life, health or safety, or for preventing a riot or any affray, to direct by notification that an order made by a Magistrate may remain in force for a further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired. The effect of the proviso, therefore, is that the State Government would be entitled to give the prohibitory order an additional term of life but that would be limited to six months beyond the two months' period in terms of sub-section (4) of Section 144 of the Code. Several decisions of different High Courts have rightly taken the view that it is not legitimate to go on making successive orders after earlier orders have lapsed by efflux of time. A Full Bench consisting of the entire Court of 12 Judges in Gopi Mohun Mullick v. Taramoni Chowdhrani examining the provisions of Section 518 of the Code of 1861 (corresponding to present Section 144) took the view that such an action was beyond the Magistrate's powers. Making of successive orders was disapproved by the Division Bench of the Calcutta High Court in Bishessur Chuckerbutty v. Emperor. Similar view was taken in Swaminatha Mudaliar v. Gopalakrishna Naidu, Taturam Sahu v. State of Orissa, Ram Das Gaur v. City Magistrate, Varanasi, and Ram Narain Sah v. Parmeshar Prasad Sah. We have no doubt that the ratio of these decisions represents a correct statement of the legal position. The proviso to sub-section (4) of Section 144 which gives the State Government jurisdiction to extend the prohibitory order for a maximum period of six months beyond the life of the order made by the Magistrate is clearly indicative of the position that Parliament never intended the life of an order under section 144 of the code to remain in force beyond two months when made by a Magistrate. The scheme of that section does not contemplate repetitive orders and in case the situation so warrants steps have to be taken under other provisions of the law such as Section 107 or Section 145 of the Code when individual disputes are raised and to meet a situation such as here, there are provisions to be found in the Police Act. If repetitive orders are made it would clearly amount to abuse of the power conferred by section 144 of the code. It is relevant to advert to the decision of this Court in Babulal Parate v. State of Maharashtra where the vires of section 144 of the code was challenged. Upholding the provision, this Court observed:
“Public order has to be maintained in advance in order to ensure it and, therefore, it is competent to a legislature to pass a law permitting an appropriate authority to take anticipatory action or place anticipatory restrictions upon particular kinds of acts in an emergency for the purpose of maintaining public order….”
It was again emphasized (at p.891 of AIR):
“But it is difficult to say that an anticipatory action taken by such an authority in an emergency where danger to public order is genuinely apprehended is anything other than an action done in the discharge of the duty to maintain order….”
This Court had, therefore, appropriately stressed upon the feature that the provision of Section 144 of the Code was intended to meet an emergency. This postulates a situation temporary in character and, therefore, the duration of an order under section 144 of the code could never have been intended to be semi-permanent in character.”
6. In view of the aforesaid enunciation of law and keeping in view the nature of assertions made in the writ petition, we are inclined to issue notice on the question of admission and disposal.
7. Issue notice.
8. As Ms. Jasbir and Mr. Waziri have entered appearance, no requisites need be filed. Counter affidavits be filed within two weeks. Rejoinder, if any, be filed within a week thereafter.
9. Matter be listed on 25 August, 2010.
CHIEF JUSTICE
MANMOHAN, J.
AUGUST 02, 2010 pk
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