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Article 144 cannot be used to stifle dissent, repetitive orders an abuse of power: SC News – India

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NEW DELHI: Frowning at the mechanical imposition of prohibitory orders under Section 144 of the Criminal Procedure Code (CrPC) since the British was to the present day, the Supreme Court ruled on Friday they cannot be used to quell dissent or expression of grievance in a Democracy.
In its ruling on restrictions on the movement of persons in J&K following the decision of 5 August to remove its special status and divide it into two territories of the Union, the bank said: “Power under Article 144 of the CRPC cannot be used instrument to prevent the legitimate expression of opinion, complaint or exercise of any democratic right.”
The bank emphasized the application of the provision should be limited to emergency situations and to prevent obstruction and inconvenience or injury to any person employed legally. He also said that “repetitive (prohibitive) orders under Article 144 would be an abuse of power” and ordered the authorities to notify all prohibitive orders approved in J&K in order to allow aggrieved persons to challenge it in a forum Appropriate.
But as with the part of the verdict dealing with the suspension of the Internet in J&K, Judges N V Ramana, Subhash Reddy and B R Gavai recognized the need for the State to use Section 144. The impulse seemed to be more about preventing the misuse of the provision; to make sure it’s used wisely rather than becoming a blunt weapon.
Therefore, the court said that the provision, which was both corrective and preventive, could be used not only to deal with an existing danger, but also in situations where there was a apprehension of one, as long as the “danger” qualifies to be an emergency and that could result in “obstruction and inconvenience without a doubt or injury to any person legally employed.”
The bench said that the use of the provision was subject to judicial review and should therefore be used to material facts reasonably and on the basis of material facts. “While exercising power under article 144 of the CRPC, the magistrate is required to balance rights and restrictions based on the principles of proportionality and to apply the less intrusive measure,” he said.
The effort to negotiate the mourning between the usefulness of Section 144 in dealing with emergenci-like situations and the experience of its misuse came clearly in the court’s observation, “As the emergency does not fully protect government actions, disagreement does not justify destabilization; the beacon of the rule of law always shines.”
However, it also warned against excessive stress in the “doctrine of proportionality” to ease restrictions in cases related to India’s security, sovereignty and integrity.
It noted that the imposition of the section on a larger, longer-lived area required a higher threshold.
Referring to the lead advocate Kapil Sibal’s argument that governments in the future could misuse powers under Section 144 to impose general restrictions to prevent opposition parties from elections, the bank said: “Our Constitution protects the expression of divergent opinions, legitimate expressions and disapproval, and this cannot be the basis for invoking Article 144 of the CRPC unless there is sufficient material to demonstrate probable incitement to the violence or a threat to public safety.”



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