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In its Judgment in Kashmir Lock Down case, the Supreme Court observed that the power under Section 144 of the Criminal Procedure, 1973 cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights.

The Supreme Court held that provisions of Section 144 Cr. P. C. will only be applicable in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.

As emergency does not shield the actions of Government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always, the bench observed thus while starting its discussion about the restrictions under Section 144 Cr P C.

The Bench comprising Justice N. V. Ramana, Justice R. Subhash Reddy & Justice B. R. Gavai while summarising the principles on exercise of power under Section 144 Cr. P. C in Writ Petition (Civil) 1031/2019 titled Ms. Anuradha Bhasin Vs Union of India & Ors., held as under:

The power under Section 144, Cr. P. C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.

The power under Section 144, Cr. P. C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.

An order passed under Section 144, Cr. P. C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order.

While exercising the power under Section 144, Cr. P. C. the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure.

Repetitive orders under Section 144 Cr. P. C. would be an abuse of power.

The genesis of the issue starts with the Security Advisory issued by the Civil Secretariat, Home Department, Government of Jammu & Kashmir, advising the tourists and the Amarnath Yatris to curtail their stay and make arrangements for their return in the interest of safety and security.

Subsequently, Educational Institutions and Offices were ordered to remain shut until further orders.

On August 04, 2019, Mobile Phone Networks, Internet Services, and Landline Connectivity were all discontinued in the Valley, with restrictions on movement also being imposed in some areas. On August 05, 2019, Constitutional Order 272 was issued by the President of India, applying all provisions of the Constitution of India to the State of Jammu & Kashmir, and modifying Article 367of Constitution of India in its application to the State of Jammu & Kashmir.

In light of the prevailing circumstances, on the same day, the District Magistrates, apprehending breach of peace and tranquillity, imposed restrictions on movement and public gatherings by virtue of powers vested under Section 144 Cr. P. C. Due to the aforesaid restrictions, the Petitioner in W. P. (C) No. 1031 of 2019 claims that the movement of journalists was severely restricted and on 05.08.2019, the Kashmir Times Srinagar Edition could not be distributed. The Petitioner has submitted that since 06.08.2019, she has been unable to publish the Srinagar edition of Kashmir Times pursuant to the aforesaid restrictions.

Which of the following is incorrect regarding section 144 as held by the court?

A) Power under section 144 is remedial and preventive

B) Power under section 144 can be used when there is present danger and apprehension of danger

C) Material facts should be presented along with the imposition of section 144

D) Repeated imposition of section 144 can take place only with the order of the court.