"Shocking, disturbing": Former CJI UU Lalit on routine and mechanical use of Section 144 CrPC in Delhi

Former Chief Justice of India (CJI) UU Lalit on Sunday expressed his shock and reservations about the mechanical issuance of prohibitory orders under Section 144 Criminal Procedure Code (CrPC) in Delhi. .The former CJI said that the use of the provision in a cavalier manner, otherwise meant for emergency situations, was not fit for a democracy governed by the rule of law and was disturbing. Section 144 of CrPC confers executive magistrate the power to issue pre-emptive and ex-parte orders in urgent cases of apprehended danger."What is seen is that if ends are acceptable then means may be anything necessary, which is not something that is done within rule of law. I was not aware that 144 can be used like this. Is courier noting down your details a part of 144? Can it be the route? You are conferring upon executives or police drastic powers. These kind of exercise is not something acceptable straight away in a democracy. 6,100 orders in Delhi in one year! This pattern that emerges is, to say the least, quite disturbing. Power cannot be utilised for a purpose not conferred," the former CJI said.Justice Lalit was speaking as part of a panel discussing the launch of a report on the 'The Use and Misuse of Section 144 CrPC: An empirical analysis of all the orders passed in 2021 in Delhi'. The report analyses 5,400 of the 6,100 odd orders passed in the national capital under Section 144 powers, revealing how they have been used to regulate non-emergency affairs. These include orders calling for couriers needing to note details of senders and receivers, mandatory CCTVs, and even regulating sale of certain medicine.The report has been prepared by a team led by advocates Vrinda Bhandari, Abhinav Sekhri, Natasha Maheshwari and Madhav Aggarwal. Senior Advocate Rebecca John also spoke at the event..Justice Lalit began by saying that he has never come across such a report, the findings of which are 'shocking'. "This report is an eye opener for me and everyone in society. We would want rule of law governing our everyday affairs, authority must exercise power as per law. This report is shocking."He expressed hope that the report would ignite the thought process to critically evaluate the provision, and even suggested it could be part of other material in a competent court of law as part of a public interest litigation."If someone earlier told me that for mundane affairs there could be 144 orders, I would have laughed it off. First time I have seen ... Here what I see is, as a student of law, Section 144 is always taken to be an emergency power with authorities like DM, police during certain flare-up situations, to curb tempers getting ignited. Extraordinary emergency power and the right to pass ex parte orders, [is something that] demands very urgent steps. That is the sum and substance and contours of the power. One goes by that use of power will be conditioned by corners of these emergency situations," he said..This report (on Section 144) is shocking.Former CJI UU Lalit.In response to a question on peaceful protests of college students being clamped down upon by using Section 144, he said,"It is certainly a cause of concern. Peaceful protest is certainly a constitutional right ... There are perhaps emergency situations where such powers can be used. But in some [others], how can they?"On whether the provision was being misused as a weapon of mass surveillance, Justice Lalit opined,"It is difficult to answer that. But certain areas, it is certainly being used where it should not be. To utilise it for surveillance ... is taking it a step further.".Rebecca John also echoed similar views, adding that she had 'no idea' that Section 144 could 'be used in such creative ways'. "Time has come for us to revisit it in courts. Because this is not a power with any judicial oversight, scrutiny. Complete executive power. In the past when they have been upheld, largely Supreme Court has shown discomfiture had deeming it unconstitutional. Time has come to perhaps challenge its validity. I do not think the legal profession knows what 144 all about," she said.On whether magisterial oversight before/while issuing such orders would help, she said that the country lacks the capacity for the same."It might look good on paper but I do not think it is practically possible. There are enough pending cases [before them].".Sekhri pointed out that Section 144 orders are generally only pasted outside police stations and government buildings which are not easily accessible to public. He pointed out that in Delhi, the justification often provided for use of Section 144 was an ever-looming terror threat. "The language is that there is a threat and it needs to be regulated. All of us get the idea of the threat, but we cannot pin it. Then what is the State expected to do? It will ensure that some pre-emptive measures are in place. Is 144 the way to do this? That is the overarching question. At least 80 per cent of this city will be in violation of some 144 order, making anyone this close to a prosecution." .Bhandari mentioned that Section 144 is invoked by the police in some States for internet shutdown orders, despite Supreme Court rulings to the contrary.Access the full report, here..[Follow live-coverage of the discussion]