How an Ordinary Law (s. 144 of Cr. P.C.) Supersedes a Fundamental Right (Art 19)!

Prabhakar Sinha

The citizens are guaranteed the ‘right to
freedom of speech
and expression and assemble peaceably and without arms’.
This right, like many others, is not absolute and it can be curbed under
certain conditions mentioned in the constitution. When the people hold a
meeting or take out a procession, they exercise their right under Art.19 of the constitution.
But they are routinely prevented from holding a meeting or taking out a
procession by the authorities by using or misusing s.144 of the Cr.P.C. The
order to not hold the meeting or take out a procession is issued under s.144.

Often the people defy the order and face lathis
and sometimes bullets causing death and grievous injuries.

Often, orders under this law is issued in advance
asking the people to not form an assembly of more than four persons. The order
is often defied and is countered with brutal force. More limbs are broken and a
large number of deaths caused by this law than under any other law.

The condition imposed on the exercise of the
right under Art.19 is not irrational.
There may be circumstances in which it may be necessary to prevent a meeting, a
procession or a big crowd. But the fact that there is no mechanism to determine
whether the prohibitory order under s.144 was
justified or not is not only unjustified but against the letter and spirit of
the constitution ( Art.19 and others).

The absence of the mechanism makes the officers
a law unto themselves .They exercise the power under s.144 at the drop of a hat 
because they are not accountable .The arbitrariness involved  and absence of a mechanism to examine the
justification of the exercise of the power cuts at root of the rule of law.

The people are helpless against the brutal
attack by the police all over the country. They have no legal remedy against
their suffering caused by the brutal police causing death, injuries and
destruction of property and  and
arbitrary arrests.

This arbitrary power of the police was
understandable under the British rule because the police were answerable only
to the government ; but the position is untenable and unacceptable  in a democratic India with its constitution
guaranteeing fundamental rights. The need is to challenge this rule of arbitrariness,
which is an anti-thesis of the rule of law.

But how to do it is an expert’s job beyond a
layman’s ken.

Prabhakar Sinha

9 January , 2020 on FB

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