By Abhinav Sekhri
(This is the fifth post in a multi-part series. Earlier posts can be accessed through here)
The previous post in this series discussed how a growing political consciousness across British India led worried administrators to use the law as a means to suppress civil liberties. Section 144 of the Criminal Procedure Code 1898 [Cr.P.C. 1898], a provision largely used up to that point by Magistrates as a means to quell local disturbances between rival groups/factions, began to be used for prohibiting the holding of public meetings, and even banning the entry of persons in an area. This post covers the subsequent period, in which the position of Section 144 as a tool of repression came to be cemented in the eyes of many outside government. Unlike previous posts where the focus was largely on the courts, here we focus on the many battles that were fought over this provision in the Central Legislature of the time, i.e. the Legislative Assembly of India.
Curbing the “Indiscriminate Use” of Section 144 — The 1923 Amendments
In January 1922, Rao Bahadur Rangachariar moved a Private Member’s Bill to amend Sections 107 and 144 of the 1898 Code, with the stated aim being “to prevent the indiscriminate use of Sections 107 and 144 of the Code of Criminal Procedure 1898, in dealing with political agitation.” This failed attempt to modify Section 144 (the Bill did not garner sufficient votes to be introduced for debate) was primarily a reaction to the use of this provision by the Government to quell the Non-Cooperation Movement. One gets a sense of the scale of use through Home Department File No. F-2A of 1922, which suggests that over 400 orders had been passed within the United Provinces in 1921 alone. This was part of the set of grievances aired when a Resolution was moved in March 1923 in the newly created Indian Legislative Assembly to condemn the repressive measures adopted to tackle the Non-Cooperation Movement.
Why use Section 144 and not some of the special laws such as the Seditious Meetings Bill, or even the Rowlatt Act, you ask? As I had mentioned in the previous post, the sufficiency of Section 144 to deal with political agitation was cited by legislators who opposed the introduction of the aforesaid special laws. Protests over these special laws did not dissipate, and only added fuel to the political fires that were burning in India around 1919 to 1921. Thus, in an attempt to depoliticise maintenance of law and order, the Colonial Government returned to that venerable old provision, Section 144, with renewed vigour and the provision soon became a velvet glove that concealed the iron fist.
The 1923 Amendments
We get a window to this history through the lengthy debates in the Indian Legislative Assembly on January 25, 1923. The Assembly was debating the comprehensive Criminal Procedure (Amendment) Bill, and had now turned its attention to the proposals for modifying Section 144. The debates are too lengthy to summarise, and I would urge readers to go through the debates on the clause (which begin on page 27 of the link) to get a sense of the legal issues and the strong feeling that now accompanied any conversations about Section 144.
Broadly, though, what the proposals sought to achieve was the following:
- Introduce a higher legal threshold for magistrates to take action under Section 144;
- Require that evidence be recorded in proceedings under Section 144, not only as a check on the exercise of power but also to enable superior courts to effectively exercise powers of judicial review;
- Limit the use of ex parte orders that were passed under Section 144, by either creating a time limit specifically for such orders, or mandatorily requiring magistrates to hear parties within a certain time period;
- Provide more avenues for challenging any Section 144 order by allowing revisions and appeals to be heard by superior courts;
- Provide special protections for political speech and activity within Section 144 itself.
The changes ultimately made to Section 144 by the 1923 amendments [Section 27 of Act 18 of 1923] did, in some measure, address these issues:
- Section 144(1) was amended. Where earlier powers could be exercised if it was the opinion of a magistrate that speedy prevention was desirable, now the threshold was made similar to that in Section 204 Cr.P.C. for issuing process in a complaint case. Thus, the clause now required a magistrate to determine that there was sufficient ground for proceeding under this section;
- The restriction over challenging Section 144 orders in revision proceedings was lifted;
- A new clause was added, enabling aggrieved persons to petition the magistrate for rescinding/altering an order.
However, as the next sections demonstrate, the fight to change Section 144 to install legal handbrakes to restrict ex parte orders as well as to protect political speech continued for several years after. But before we proceed further, it is important to flag what was not raised as being problematic in Section 144 during the 1923 debates. First, although some members complained about junior officers having been empowered under Section 144, only one member raised that as an issue. In fact, the Government benches cunningly turned this issue against the Indian members by citing that many junior officers were natives. Second, hardly any sustained attack was made to curb the breadth of Section 144, with the Assembly largely in agreement that the breadth of the provision was necessary to maintain law and order.
The Many Abortive Legislative Attacks on Section 144
Even before the ink had dried on the 1923 amendments, Mr. A. Rangaswami Iyengar moved a Bill in 1924 to further amend Section 144 of the Code citing “recent events” that had seen the provision being used to impose “all kinds of restrictions on political workers and political propaganda”. While positively noting the wide scope of the provision, Iyengar stated that the “extraordinary and indiscriminate applications of the section that have taken place since 1921 on such a large scale for the purpose of suppressing political agitation, is a matter which could not have been foreseen.” Thus, he now sought limits for ex-parte orders, special protection for political activity, and enabling appeals (as opposed to revision petitions) be allowed against Section 144 orders which would make it a rule for proper evidence to be recorded.
The instructions from the Viceroy were clear: Oppose the introduction of the Bill at all stages, for as the Home Member had noted in the file, this Bill “would reduce Section 144 to nothing“. But this Bill did not even reach the House for discussion. Undeterred, Iyengar coopted support for the Bill from other members of his party (the Swaraj Party) and moved the Bill again in 1925. Similar legislation was sought to be introduced by several other members as well during this time. However, all of these attempts met the same abortive fate, and did not get past the introductory stage.
The Gaya Prasad Singh Amendments
One such Private Member Bill did eventually reach the floor of the House. In February 1931, a draft legislation moved by Mr. Gaya Prasad Singh was discussed where he proposed that the Bill be referred to a Select Committee. The focus of this legislation was on the same three issues that were raised in Mr. Iyengar’s Bill of 1924. After heated debates which spanned several days, the Assembly passed a motion by a single-vote majority to circulate the draft legislation for public opinion.
The idea of soliciting public opinion did not mean going to the people on the street, but instead going to ask administrators, judges, government pleaders and lawyers’ associations for their opinions. When the opinions came back and the Bill was again taken up for discussion on September 15 of that year, it was apparent that almost all of these sections of society overwhelmingly supported Section 144 in its existing form. The voluminous opinions are collected in the Home Department File No. F-22/174 of 1931 (pages 71-192).
While it was perhaps understandable that administrators found little fault in the provision, especially since their opinions were sought so soon in the aftermath of the Civil Disobedience Movement, the widespread support for retaining Section 144 in its existing form amongst the lawyers and judges was telling. Even though different High Courts had set aside many orders under Section 144, of a political nature and otherwise, as being contrary to law (and continued to do so hereafter), this was not seen as a blot on the legislation itself or its policy of combining judicial and executive powers within the same official. Rather, these cases were understood as individual errors, for which the existing set of remedies were considered sufficient; remedies that had only recently been expanded upon in 1923.
As one would expect, in light of the unfavourable public opinion, the proposal to refer the Bill to a Select Committee did not garner the requisite support despite the best efforts for Mr. Gaya Prasad Singh and his sympathisers.
Rangachariar’s Return and The Repressive Laws Bill
In January 1931, Diwan Bahadur Rangachariar (as he now was) had moved another Bill to amend his old foe, Section 144. Unlike the earlier Bills moved by Mr. Iyengar which focused on ex parte orders and political speech, his legislation sought curbs on Section 144 orders which curbed acts that were “not wrongful in themselves but are in exercise or enjoyment of the rights of parties“. Unfortunately, this Bill was not any more successful than his earlier attempts at limiting the scope of Section 144.
Finally, this brings us to the Repressive Laws Repealing and Amending Bill that was moved by Mr. S. Satyamurti in 1934 but only discussed on the floor of the Assembly on February 20, 1936. As the name suggests, the Bill targeted not just Section 144, but other laws as well such as Section 124-A of the Penal Code which created an offence of “sedition”. Crucially, Satyamurti also did not press for a repeal of Section 144, but rather re-agitated the changes initially proposed by Rangachariar and later by Iyengar & Gaya Prasad Singh, among others.
While Satyamurti’s proposals on amending Section 144 were, therefore, not significant as such, what was significant here was his logic behind picking these “Repressive Laws”, which had not been as succinctly addressed in earlier debates. According to him, these laws were “all based upon a distrust of the judiciary as such” and “based upon a desire to arm the executive with the exercise of powers which shall not be questioned anywhere, and they all offend against, the elementary canons of the supremacy of law and the freedom of the citizen.“
Alas, the Bill seems to never have been taken up for debate subsequent to this occasion in the years till 1939 (largely due to administrative reasons as gleaned from the Home Department files), when the Legislative Assembly itself was suspended owing to the declaration of the Second World War.
It is impossible, and perhaps unsuitable, to provide a summary of this vast history here. Instead, it is better that I stick to highlighting three aspects that struck me as most significant in this history.
First, is the limited debate about the scope of Section 144. The debates repeatedly focused upon creating special exemptions for political speech rather than pressing for removing words such as “annoyance”, or creating a proportional scheme of responses like the 1931 proposals of Rangachariar. A note must also be made here of how many members refuted any calls to change the language of the provision by citing its vintage, and simply referring to unpredictability as a reason for retaining the exorbitantly vague phrasing of the statute.
Second, is the resigned acceptance of almost all the members in the Assembly for retaining Section 144 of the Code and their acknowledgment of the need for preventive powers to deal with communal riots and other public order disturbances. Indeed, it was quite normal for the Government benches to cleverly change the scope of the debate and play on this sentiment by mischaracterising the debate and suggesting that the proposed amendments sought to do away with Section 144 altogether.
Third, is the link between Section 144 and the underlying issue of separation of powers. The proposals for greater judicial oversight in this process were rebuffed not only on practical grounds — referring to the delays inherent in the appellate / revision system — but also by emphasising the desirability of a system which combined executive and judicial powers in the same officer for such purposes. A call to retain Section 144 as it was, then, was also a vote of confidence for retaining the status quo and not separating judicial from executive functions.
I first came across Satyamurti’s Repressive Laws Bill in K.G. Kannabiran’s Wages of Impunity, where he favourably quoted the extract I’ve used above and, in his inimitable style, linked it to legislative approaches in independent India. But as this post shows, Satyamurti’s efforts at reforming the laws, and more specifically reforming Section 144, were the last in what was a long tradition that began in the aftermath of the Non-Cooperation Movement. At a time when various sectors across society are looking at the provisions of Section 144 with careful scrutiny, it is imperative that the lessons offered by our history do not go ignored.
[The author is a criminal lawyer based in Delhi. This post was first published on his blog ‘The Proof of Guilt’.]
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