Section 144 CrPC: How a law was used to break law

Section 144, CrPC has been in the news recently – having been imposed in parts of Bihar and West Bengal amidst violence erupting during Ram Navami processions. The use of Section 144 has become commonplace, and is colloquially associated with orders passed by the local administration prohibiting the assembly of five or more persons in one place. But is this the reality of how Section 144 orders are passed?We set out to answer this question in an empirical study, ‘Use and Misuse of Section 144 CrPC’. This analyses all the orders passed by Delhi police during the one-year period from January 1 to December 31, 2021.Section 144 has been a key component of public order policing in independent India and a favoured part of the toolkit for local law enforcement (district magistrates or police). It is broadly worded – allowing the local administration to direct “any person” to “abstain from a certain act” or “to take certain order with respect to certain property in his possession or management” in order to prevent public obstruction/annoyance/danger to human life or safety.Usually, such orders must be issued to an individual, although in cases of emergency, the order may be passed ex parte. An order issued under Section 144 is limited to two months, and can, in exceptional circumstances, be extended up till six months.Given these limitations, we assumed while starting the study that there would be 500-1,000 orders passed during the year, mostly limited to regulating public assembly or prohibiting congregation as part of Covid-era restrictions. We could not have been further from the truth. medium99711697Based on detailed RTI responses, we found that over 6,100 orders were passed under Section 144 by Delhi police during the one-year period, of which we were able to inspect around 5,400. The scale of deployment of Section 144 thus seems far beyond what is anecdotally reported in media.If the number of Section 144 orders passed was surprising, the purpose for which police issued such orders was beyond our wildest comprehension. Rather than being used as an emergency power to deal with unique threats that may arise from time to time — say, a threat of riots or even the Covid pandemic — it appears that Delhi police adopted Section 144 as a shorthand method to pass broad-based directives on every conceivable issue.Worse still, these orders were cyclostyled and re-issued at the expiry of the two-month period, leading to a state of perpetual Section 144.1) 25% of the 5,400 orders analysed by us directed various private establishments to install CCTV cameras for surveillance purposes. The targets of these Section 144 orders were varied – (i) ATMs and banks; (ii) owners of girls’ schools/PGs/hostels; (iii) liquor vends (directed to have “sufficient cameras” and recording and playback systems); (iv) private courier services and agents monitoring who was booking a courier; and (v) other corporate entities such as owners of parking lots, amusement parks, malls, and banquet halls.Thus, Section 144 was being used to create a parallel surveillance network, with no legal accountability and zero oversight. As one order noted, given the large numbers of customers visiting ATMs and banks for day-to-day transactions it was “necessary to have quality surveillance on their day-to-day functioning”.2) Apart from this, we found that 43% of the Section 144 orders analysed were issued to regulate a variety of businesses and services through a range of directives, often to compulsorily record and register documents. These orders mandated landlords/property owners/factory owners to furnish details regarding tenants/labourers/servants before providing them with accommodation.Banks, ATMs, and BPOs had to maintain a database of all employees, security guards, cab drivers etc and follow KYC procedures. Owners of parking lots had to instruct their employees to wear a uniform and ID card. Kabadi vendors and mobile sellers had to maintain a register recording purchasers of scrap items and second-hand phones.These orders treat the entire class of population as potential criminals, who require constant monitoring and surveillance. Resultantly, routine everyday situations are brought under the purview of the state.3) The third category of orders we identified pertained to limiting public order threats and were of two types. A surprisingly minuscule 1.5% of the orders analysed were focused on imposing a blanket restriction on unlawful assembly (for example, during a protest march). More surprisingly, some of the orders issued under Section 144 regulated activities such as the use of “special manjhas” while flying kites, bursting crackers, taking tiffin boxes inside cinema halls, or selling tobacco to students.4) Finally, we found some orders that were outliers and did not fit neatly into any category. These included orders prohibiting the consumption of tobacco in hookah bars; requiring prescriptions to purchase two tubes of certain drugs/medicines such as Corex or Iodex; or prohibiting the sale of correction fluid (whiteners) to students.Section 144 was conceived during colonial times, introduced first on the statute books in 1861. The almost unfettered powers given to district magistrates and police officials to prevent annoyance and ensure safety continued with the passage of the Constitution and the enactment ofthe new Criminal Procedure Code in 1973.Supreme Court has passed a series of judgments emphasising that the use of Section 144 should be restricted and time-limited. Unfortunately, this does not seem to be the reality of the ground, at least in Delhi. We think it is time for a change and a need to rethink the place of Section 144, CrPC in our democratic polity.The writers are lawyers practising in Delhi and are co-authors of the study, Use and Misuse ofSection 144 CrPC, which can be found at