SC assails poll-time prohibitory orders

Published
20th Apr, 2024

Context

The Supreme Court questioned the basis of Executive Magistrates issuing blanket orders prohibiting yatras to uphold democratic and electoral values, dharnas and public meetings during the entire duration of the Lok Sabha election, till the declaration of poll results.

1: Dimension - Legality and Basis of Orders

Judicial Scrutiny: The recent remarks by the Supreme Court indicate a growing judicial scrutiny of the legality and necessity of blanket prohibitory orders issued during election periods. This scrutiny highlights the need for a clear legal basis and justification for such orders, emphasizing the principle of proportionality.
Executive Discretion vs. Democratic Rights: The debate revolves around the balance between executive discretion and democratic rights. While authorities argue for the need to maintain law and order during elections, critics raise concerns about the infringement of fundamental rights, including the right to assembly and expression.
Constitutional Validity: Advocates argue that prohibitory orders issued solely on the grounds of elections lack constitutional validity. They emphasize that elections, while significant, do not constitute an emergent situation justifying the imposition of sweeping restrictions on public activities.

2: Dimension - Impact on Democratic Rights

Hindrance to Political Participation: Blanket prohibitory orders significantly hinder political participation by restricting public gatherings, protests, and awareness campaigns. This impediment undermines the democratic process by limiting citizens' ability to engage in political discourse and activism.
Suppression of Civil Society: The prolonged duration of these orders suppresses civil society initiatives aimed at promoting voter awareness and monitoring election processes. Such suppression undermines the role of civil society in ensuring free and fair elections and fosters a culture of restricted civic engagement.
Effect on Freedom of Expression: The fear of reprisal due to prohibitory orders creates a chilling effect on freedom of expression. Citizens, fearing legal repercussions, refrain from voicing their opinions or organizing peaceful demonstrations, thereby stifling dissent and diversity of political discourse.

3: Dimension - Lack of Response to Applications

Administrative Inefficiency: The lack of response from authorities to applications seeking permission for public gatherings reflects administrative inefficiency. Many applications remain pending indefinitely, depriving citizens of their right to assemble and express their views.
Violation of Due Process: The failure to respond to applications violates due process and procedural fairness. Citizens are left in a state of uncertainty, unable to plan or organize events effectively, which undermines the principle of rule of law.
Obstruction of Democratic Engagement: The non-responsive approach of authorities obstructs democratic engagement by creating barriers to civic participation. This obstruction undermines the vibrancy of democracy and erodes trust in the electoral process.

Section 144

Section 144 of CrPC is meant for emergency situations.
It empowers a district magistrate, a sub-divisional magistrate, or any other executive magistrate empowered by the state government, to issue orders to prevent and address urgent cases of apprehended danger or nuisance.
The written order by the officer may be directed against an individual or individuals residing in a particular area, or to the public at large.
In urgent cases, the magistrate can pass the order without giving prior notice to the individual targeted in the order.

Powers under the Provision:

The provision allows the magistrate to direct any person to abstain from a certain act, or to pass an order with respect to a certain property in the possession or under the management of that person.
This usually means restrictions on movement, carrying arms, and unlawful assembly. It is generally understood that an assembly of three or more people is prohibited under Section 144.
When aimed at restricting a single individual, the order is passed if the magistrate believes it is likely to prevent obstruction, annoyance or injury to any lawfully employed person, or a danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, etc.
Time limit: Orders passed under Section 144 remain in force for two months, unless the state government considers it necessary to extend it. But in any case, the total period for which the order is in force cannot be more than six months.