The British government feared that a group of five or more Indians would create trouble for it. The colonial rulers might have introduced the proviso as they were not well-versed with the local languages and thus, unaware of what was transpiring among Indians when they gather in streets in groups.
Almost 150 years have passed since the legislation was promulgated and yet the government in democratic sub continent feels comfortable with it. Section 144 of CrPC continues to be the most widely used provision of law, of course during emergent situations, across the country.
Punjab Police Enlightens section 144 of CrPC in its FAQ section as;
Section 144 of the Code of Criminal Procedure (CrPC) empowers a district government to issue orders in public interest that may place a ban on an activity for a specific period of time extending to two months. Such a ban is enforced by the police who register cases under section 188 of the Pakistan Penal Code for violations of the ban. Section 188 carries a maximum penalty of six months in prison or a fine of up to Rs. 1000 or both. The ban may be lifted by the district government at any time or re-imposed after the expiry of the two-month period.
(ADDITIONAL INFORMATION-opens in a new window)
Federation of American Scientists a.k.a. FAS Explicates Section 144 as;
Article 144 of the Code of Criminal Procedure allows the government to act preventively if it perceives the danger of public disorder. A magistrate may prohibit meetings of five or more persons, forbid the carrying of firearms, and impose "preventive detention" on anybody thought likely to disturb public order. Although a detainee is entitled to be informed of the reason for his detention and to a fair review of the case, these restrictions are in practice easy to circumvent, and the constitution specifically denies such detainees procedural guarantees. The government, especially in periods of martial law, has used Section 144 frequently when feeling its position could be threatened by demonstrations and public opposition to its policies; Section 144's provisions have also been used, however, to contain disorder that is not political.
The information given below is meant for fanatics only (obvious from its length)
Introduction
Under the Criminal Procedure Code (hereinafter the Code) wide powers have been conferred on an Executive Magistrate to deal with emergent situations. One such provision deals with the Magistrates powers to impose restrictions on the personal liberties of individuals, whether in a specific locality or in a town itself, where the situation has the potential to cause unrest or danger to peace and tranquility in such an area, due to certain disputes. In brief, Section 144 confers powers to issue an order absolute at once in urgent cases of nuisance or apprehended danger. Specified classes of magistrates may make such orders when in their opinion there is sufficient ground for proceeding under the section and immediate prevention or speedy remedy is desirable.
Scope of Section 144 of the Criminal Procedure Code
Action under this section is anticipatory, that is, it is utilized to restrict certain actions even before they actually occur. Anticipatory restrictions are imposed generally in cases of emergency, where there is an apprehended danger of some event that has the potential to cause major public nuisance or damage to public tranquility. The gist of action under Section 144 is the urgency of the situation; its efficacy is the likelihood of being able to prevent some harmful occurrences. Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the Executive Magistracy enabling it to perform that function effectively during the emergent situations.
Though the power conferred under this section is extraordinary considering the fact that it enables them to suspend the lawful rights of persons if they think such a suspension will be in the interest of public peace and safety. But the Magistrate should bear in mind that every citizen has a right to ventilate his grievances either in public or in private and ask for redress. This right cannot be curtailed so long as it is exercised in a lawful manner. It is an illegal assumption of power to issue an order under this section on a pretended apprehension of the danger of the breach of the public peace. However, section 144 is intended to provide for an emergency, and it is idle to contend that in an emergency when a riot is apprehended and when there is apprehension of a serious disturbance of the public tranquility, the Magistrate is required to deliberate upon and decide the rights of the parties before acting.
Rationale for the application of Section 144
Orders under this section are justifiable only when it is likely to prevent any of the following events from happening
1. Annoyance: Annoyance may be either physical or mental. In the case of physical annoyance a certain degree of proximity between the object annoyed and the annoyance is necessary, but in the case of mental annoyance no question of proximity arises. This section covers both kinds of annoyance. Section 144 Criminal Procedure Code, can be used even against newspapers in proper cases of incitements to breaches of the peace or to commit nuisances, dangerous to life or health or to annoy officers lawfully employed. Even where an order under this section deals with a 'nuisance' there must be a danger to life or health involved, or of an affray or riot or breach of the peace. Mere defamatory statements, and even highly objectionable abusive articles against prominent officials, cannot be dealt with under this section unless they are likely to lead to a breach of the peace or to a nuisance endangering life or health. The section should not be abused by using it for dealing with abusive articles and defamation not likely to lead to a breach of peace.
2. Injury to Human life: A Magistrate has no jurisdiction to make an order under this section merely for the protection of property. He has got to be satisfied that the direction is likely to prevent injury or risk of injury to human life or safety. Most of the acts contemplated by this section are of the nature that if not prevented they will develop into an offence. But there is at least one item about which this limited view is not possible. The word 'injury' as defined under section 44 of the IPC states 'any harm whatever illegally caused to any person, in body, mind, reputation or property', and the word 'illegal' defined under section 43 of then same Code is applicable to 'everything which is prohibited by law, or which furnishes a ground for a civil action'. Whenever, an injury is caused to a person the recourse to this section can be taken in those situations. So, even if the act or the measure complained of be not such as would amount to an offence when allowed to be completed would furnish grounds for a civil action only, the protection of this section will extend to the person.
3. Disturbance of public tranquility: The act prohibited under this section must he so prohibited if it is likely to prevent obstructions, etc., or disturbance of the public tranquility, etc. it is not enough to say that by stretching several possibilities one after the other, it is possible to establish a connection of cause and effect between the act prohibited and disturbance of public tranquility. The connection must be reasonable or proximate and not merely speculative or distant. Where there are no circumstances peculiar to the locality and the matter is or of general impression, the absence of any near or reasonable connection between the prohibited act and the supposed danger to public tranquility will be a ground upon which the High Court is bound to act.
4. Order cannot be made to give advantage to one party: The section does give wide powers to the Magistrate, and imminent danger to the public peace may justify interference with even private interests. But the section is not to be invoked by one party to a dispute to secure a material advantage over the other.
Additionally, any restriction, which is opposed to the fundamental principles of liberty and justice, cannot be considered reasonable. One of the tests to find out whether a restriction is reasonable or not is to see whether the aggrieved party has a right of representation against the restrictions imposed or proposed to be imposed. No person can be deprived of his liberty without being afforded an opportunity to be heard in defence and that opportunity must be adequate, fair and reasonable.
Duration of the Order
As expressly mentioned in the section, any order passed under section 144 shall be subject to sub-clause (4) and would therefore be valid only for a period of two months. As it has already been remarked earlier, it is not competent to a Magistrate to revive or resuscitate his order from time to time. Such an exercise of power would clearly constitute abuse of power.
The state government can extend this time period of two months to a maximum of six months from the date of the expiry of the initial order, if it finds it imperative for prevention of certain situations causing disturbances of safety, health or peace. Although, the power conferred upon the state government is executive in nature, there can be a revision of the order by a Magistrate in case the court finds the arbitrary or unfair exercise of power.
