JURISPRUDENCE (LEGAL METHODOLOGY)

SEMESTER I

A RESEARCH PAPER ON:

“ANALYSIS OF SECTION 144 OF CrPC 1973 & SECTION 124A OF IPC 1860”

SUBMITTED TO:

Prof Sinjini Sen

(Assistant Professor, NMIMS School of Law)

SUBMITTED BY:

Pahul Wadhwa

Roll No.: B033

F.Y BA LLB – Division B

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 TABLE OF CONTENTS

S. No. PARTICULARS PAGE

NO.

1) TITLE 01

2) TABLE OF CONTENTS 02

3) INTRODUCTION 03

4) RESEARCH QUESTION 06

5) PRESENT SCENARIO 07

6) JUDICIAL DECISION 09

7) ANALYSIS 10

8) CONCLUSION AND SUGGESTION 11

9) BIBLIOGRAPHY 12

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 INTRODUCTION
This research paper will start with the introduction of Section 144, its background and its co-relation
with various fundamental rights. This is an attempt to understand the concept of Curfew Laws,
Unlawful Assemblies, powers of the Magistrate and its implementation at the local levels. We’ll start
with interpreting the bare act of this section and the ambiguity which it showcases with regard to the
concept of unlawful assemblies and fundamental rights.

I. Section 144 of Criminal Procedure Code 1973 (Bare Act):

Power to issue order in urgent cases of nuisance of Apprehended danger.
(1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other
Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient
ground for proceeding under this section and immediate prevention or speedy remedy is desirable,
such Magistrate may, by a written order stating the material facts of the case and served in the manner
provided by section 134, direct any person to abstain from a certain act or to take certain order with
respect to certain property in his possession or under his management, if such Magistrate considers
that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any
person lawfully employed, or danger to human life, health or safety, or a disturbance of the public
tranquillity, or a riot, of an affray.
(2) An order under this section may, in cases of emergency or in cases where the circumstances do
not admit of the serving in due time of a notice upon the person against whom the order is directed,
be passed ex parte.
(3) An order under this section may be directed to a particular individual, or to persons residing in a
particular place or area, or to the public generally when frequenting or visiting a particular place or
area.
(4) No order under this section shall remain in force for more than two months from the making
thereof:
Provided that, if the State Government considers it necessary so to do for preventing danger to human
life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order
made by a Magistrate under this section shall remain in force for such further period not exceeding
six months from the date on which the order made by the Magistrate would have, but for such order,
expired, as it may specify in the said notification.
(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved,
rescind or alter any order made under this section, by himself or any Magistrate subordinate to him
or by his predecessor-in-office.
(6) The State Government may, either on its own motion or on the application of any person
aggrieved, rescind or alter any order made by it under the proviso to sub-section (4).
(7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the
State Government, as the case may be, shall afford to the applicant an early opportunity of appearing
before him or it, either in person or by pleader and showing cause against the order ; and if the
Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he
or it shall record in writing the reasons for so doing.1

1
Section 144 of the Criminal Procedure Code 1973
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INTERPRETATION:
On the basis of sufficient grounds, a district magistrate or a sub divisional magistrate or an executive
magistrate especially powered by the state government, can abstain a person either from doing an act
or from the possession of the person’s property. The ‘sufficient’ grounds should be such that it may
cause:

• Obstruction
• Annoyance or injury to any lawfully employed person
• Danger to human life
• Threat to health or safety
• Disturbance to public calmness
• Riots
• Affray.
An order may be passed during the emergency or ex parte (one decided by a judge without requiring
all of the parties to the dispute to be present).
The order may be directed to an individual, people residing in a particular place, area, district or a
city and may last no longer than 6 months.
Keeping in sight the situations, the magistrate or his/her predecessor-in -office or a subordinate can
revoke, cancel or repel any order made under this section either on his own motion or on the
application of any person aggrieved.
Corresponding Law: Section 144 of Act V of 1898.

II. Section 124A of the Indian Penal Code, 1860 (Bare Act):
124A. Sedition.—Whoever by words, either spoken or written, or by signs, or by visible
representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or
attempts to excite disaffection towards the Government established by law, shall be punished
with imprisonment for life, to which fine may be added, or with imprisonment which may
extend to three years, to which fine may be added, or with fine.

Explanation 1. —The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2. —Comments expressing disapprobation of the measures of the Government

with a view to obtain their alteration by lawful means, without exciting or attempting to excite
hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3. —Comments expressing disapprobation of the administrative or other action

of the Government without exciting or attempting to excite hatred, contempt or disaffection,
do not constitute an offence under this section.2

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INTERPRETATION:
Section 124A states that any effort by any individual, to raise “hatred” or “contempt” or “disaffection”
towards the government established by law, may lead to imprisonment for life to which fine may be
added or imprisonment may be extended to three years to which fine may be added.

According to this law, any criticism of the government, whether or not in good faith is sedition.
Sedition in literary terms means language or behaviour that is intended to persuade other people to
oppose their government.3

The moment this “hatred” or “contempt” or “dissatisfaction” relates to the government, in writing, in
verbal language, in visual signs or representation, becomes a punishable offence under the IPC.
According to the explanation 1 of the Section 124A,

As per the Indian Penal Code, for an act to be called “seditious”, it should have the following
components:

• Any words, which can be either written or spoken, or signs which include placards/posters
(visible representation)
• Must bring hatred/contempt/disaffection against the Indian Government
• Must result in ‘imminent violence’ or public disorder.4

Disaffection, as stated by explanation 1 of section 124A, includes disloyalty and all feelings of enmity.
The courts have defined disaffection as follows:

• The meaning of disaffection is contrary to that of affection, i.e. dislike or hatred.

• It means hatred, enmity, hostility, contempt and every form of ill-will to the government.
• It symbioses political alienation or discontent.
• It is a positive political distemper, and not a mere absence or negation of love or goodwill.5

3
Definition of sedition from the Cambridge Advanced Learner's Dictionary & Thesaurus © Cambridge University Press:
https://dictionary.cambridge.org/dictionary/english/sedition

4
Sri Indra Das vs State of Assam

5
https://lawtimesjournal.in/sedition-section-124a-ipc/
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 RESEARCH QUESTION

➔ Do laws like Section 144 and Sedition Law give exorbitant and authoritative
powers to the government or the local police officials?

This question arose after interpreting and understanding the bare acts of Section 144 and 124A.

SECTION 144 OF THE CrPC 1973:

As we have inferred from the above interpretations, Section 144 confers powers to the magistrate to
issue absolute order in urgent cases of “apprehended danger” or “nuisance”. This means that the
actions taken under this act are anticipatory. Even before the act is done, the person in power takes
steps to prevent it and this is the point where subjectivity lies.

The conferment of these powers enables the magistrate to apprehend the danger. But it is not clear
that what basically apprehension of danger means? Does this make the magistrate interfere into a
peaceful protest? Or does this make him powerful enough to apprehend any ongoing public activity
a nuisance? Apprehension is subjective in nature. This means every person has a different capacity
and cognitive sense to perceive a situation as a danger. The definition of annoyance or disturbance
can be interpreted differently and for obvious reasons, misused. Then who will be held accountable
if something is misinterpreted and misused? This is what happens today. Henceforth, this paper
analyses some scenarios and cases in regard to Section 144 of the CrPc.

SECTION 124A OF THE IPC 1860:

Sedition law of our country, which was introduced by Thomas Macaulay in 1870, considers disloyalty
or disaffection towards the nation as an offence. This implies any act in furtherance with expressing
hatred towards the government is punishable.

Does this align with the idea of democracy? Are the people supposed to have assent with everything
the governing authorities does? Article 19 (1) (a) of the constitution of our country provides the
freedom of speech and expression. But, the ambiguity of this law makes it difficult to define what
disloyalty or disaffection is. Reporters’ lives are in danger just because they write something which
does not match with the government’s views.6 Students of our universities get arrested just because
they ask for sovereignty of this country.7 This is how the question arises about these laws which
reflects the light of authoritarianism.

6
https://thewire.in/culture/ravish-kumar-narendra-modi-social-media-trolls-twitter-death-threat
7
https://scroll.in/latest/914251/kerala-two-students-of-malappuram-college-arrested-on-charges-of-sedition
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 PRESENT SCENARIO

Let us have a look at some of the recent incidents nationally, which consists of these laws and then
analyse their position in our country.

❖ SECTION 144 IN JAMMU AND KASHMIR:

Peoples Democratic Party president Mehbooba Mufti said, “How ironic that elected representatives
like us who fought for peace are under house arrest. The world watches as people & their voices are
being muzzled in J&K. The same Kashmir that chose a secular democratic India is facing oppression
of unimaginable magnitude. Wake up India.”8
This is the statement by the president of People’s Democratic Party, Mehbooba Mufti after the
detention of the leaders in Jammu and Kashmir before abrogation of Article 370. Section 144 of the
CrPC was imposed. According to the order, there shall be no movement of public and all education
institutions shall also remain closed.9 The mobile internet facilities, cable series, broadband internet
services were shut down following the orders under Section 144 of the CrPC. 10

❖ SECTION 144 IN SOUTH MUMBAI:

Section 144 of the CrPC was imposed recently in South Mumbai ahead of Maharashtra Navnirman
Sena (MNS) chief Raj Thackeray’s questioning with the Enforcement Directorate.11 Though the party
chief appealed to his workers, the official said they did not want to take any chances so they imposed
Section 144 thereby banning unlawful assembly – an assembly of five or more persons having a
common object to perform on offence.12

These two cases helped us understand what kind of implementation does Section 144 carries with it.
It is also co-related with the concept of unlawful assemblies.

8
https://www.financialexpress.com/india-news/section-144-imposed-in-kashmir-security-beefed-up-internet-
services-suspended-many-leaders-detained-or-arrested/1665998/

9
https://twitter.com/ANI/status/1158089549253435393?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwter
m%5E1158089853097185281&ref_url=https%3A%2F%2Fwww.financialexpress.com%2Findia-news%2Fsection-144-
imposed-in-kashmir-security-beefed-up-internet-services-suspended-many-leaders-detained-or-
arrested%2F1665998%2F

10
https://indianexpress.com/article/explained/what-is-section-144-crpc-jammu-and-kashmir-5878543/

11
https://www.indiatoday.in/india/story/mns-workers-detained-raj-thackeray-ed-questioning-section-144-mumbai-
office-1590179-2019-08-22

12
Section 141 of the Indian Penal Code 1860
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 ❖ ARREST OF ASEEM TRIVEDI:
25-year-old Cartoonist Aseem Trivedi was booked for sedition and sending offensive messages under
the IT Act and under the law for Prevention of Insults to National Honour, thereby was arrested by
the Mumbai Police. The lawyer filed a complaint describing that he drew a cartoon showing our
National Emblem with three wolves instead of lions and the words Bhrashtameva Jayate (corruption
triumphs) instead of Satyameva Jayate.13

❖ ARREST OF KANHAIYA KUMAR:

Kanhaiya Kumar is the president of JNU's student’s union and was arrested after some students held
a rally against the 2013 hanging of Mohammed Afzal Guru, a Kashmiri separatist convicted over an
attack on India's parliament. 14

A video of the said incidents shows students, including boys and girls, holding placards displaying
photos of Afzal Guru raised slogans and hailing him. The Delhi Police have claimed that one of
students in the group was JNUSU president Kanhaiya Kumar. “That’s why he has been detained. The
probe is on,” a police source said.

After Home Minister Rajnath Singh’s instruction to take stringent action against the “anti-national”
elements in the campus, the Delhi Police have detained JNUSU president Kanhaiya Kumar. The
police have claimed that Kumar was seen in a video in which people were allegedly raising anti-
national slogans.15

13
https://www.ndtv.com/people/who-is-aseem-trivedi-498996

14
https://www.bbc.com/news/world-asia-india-35576855

15
https://www.firstpost.com/politics/pro-afzal-guru-sloganeering-jnusu-fight-gets-intense-aisa-denies-making-anti-
national-slogans-2623888.html
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 JUDICIAL DECISION
Manzur Hasan And Ors. vs Muhammad Zaman and Ors. on 30 May, 1921
(1921) ILR 43 All 692

In the case of Manzur Hasan v Muhammad Zaman [17] laid down the principle which must be borne
in mind before going through this section:

1.Urgency of the situation and the power is to be used for maintaining public peace and tranquillity

2.Private rights may be temporarily overridden when there is a conflict between public interst and
private rights.

3. Questions of title to properties or entitlements to rights or disputes of civil nature are not open for
adjudication in a proceeding under section 144.

4. Where those questions have already been decided by the civil courts or by judicial pronouncements,
the Magistrate should exercise their power under section 144 in aid of those rights and against those
who interfere with the lawful exercise thereof.

5. The consideration should not be that restriction would affect only a minor section of the community
rather that a large section more vociferous and militant.16

CONSTITUTIONAL VALIDITY OF THIS SECTION:

Chief Justice of India Hidayatullah stated in the celebrated case of Madhu Likaye v S.D.M. Monghyr,
that section 144 of the Criminal Procedure Code is not unconstitutional if properly applied and the
fact that it may be abused is no ground for it's being struck down. And the provisions of the Code
properly understood are not in excess of the limits laid down in the Constitution for restricting the
freedom guaranteed in it and that is precisely why the Court held that section 144 of the Criminal
Procedure Code is valid and Constitutional.
Just because there is a chance of abuse does not mean that the section should be struck down.17

16
https://www.lawteacher.net/free-law-essays/constitutional-law/examining-criminal-procedure-code-constitutional-
law-essay.php#ftn16

17
http://www.legalservicesindia.com/articles/crpc.htm
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 ANALYSIS AND ANSWER TO THE RESEARCH QUESTION

This section will provide with the analysis of the present scenario which has been mentioned in the
research paper. In turn, it will answer the research question which discusses about justification of
powers provided to the authorities.

❖ SECTION 144 OF CrPC 1973:

After observing the mentioned incidents, we can take into consideration that Section 144 of the CrPC
carries a lot of ambiguity when it comes to the powers conferred to the magistrate. In context with
the South Mumbai case, just because workers of the party can not protest, the magistrate ordered the
implementation of the Section 144 in the area. Can it be questioned? No, because it could have been
an “apprehended danger” or a “disturbance” to the public tranquillity and therefore the authority
banned unlawful assemblies in the particular area. Also, looking at the condition of Kashmir, though
Section 144 has been revoked, but still people are struggling to communicate with their relatives and
family members. Is this really democracy?

In my opinion, giving such plenary powers to a district magistrate (or any other executive magistrate)
with such a large scope and ambiguity, can very easily result into abuse of power and the facts in the
present scenario are supporting this deduction. The answer to the research question is ‘yes’, this law
gives more than required and authoritative powers to the officials.

❖ SECTION 124A OF IPC 1860:

Sedition law, infamously known as the draconian law brings with it a lot of vagueness and restrictions.
Article 19(1)(a) secures to every citizen the right to freedom of speech and expression. 18 It is the
fundamental right of every citizen to have his own political theories and ideas and to propagate them
and work for their establishment so long as he does not seek to do so by force and violence or
contravene any provision of law.19

Coming to the analysis of the Kanhaiya Kumar case, criticism of the SC judgment upholding the
conviction of Afzal Guru also would not attract Section 124-A.20 Also, when we take Aseem
Chaturvedi’s case into consideration, we can deduce from the facts that he never intended to wage a
war against the government or expressed disloyalty. He only expressed his views on corruption
practises going on in the country through cartoons.

18
http://legislative.gov.in/sites/default/files/COI-updated.pdf
19
https://indianexpress.com/article/opinion/columns/sedition-law-constitution-law-freedom-of-speech-5044091/
20
Ibid.
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 CONCLUSION AND SUGGESTION
Section 144 of the Code of Criminal Procedure 1973:
After analysing the situation and its relation with the law, we can conclude that both the laws which
are mentioned in this research paper reflect arbitrariness on the face of it. They are archaic,
ambiguous, and sometimes unjustifiable in nature.

Looking back into the history, Section 144 has its corresponding law with the Section 144 of the Act
V of 1898. This means that the law came into place when Britishers ruled our country. So, because
of some straight and obvious reasons we can state that, these laws were made keeping in mind the
monarch form of government and not the democratic one. The British had one ulterior motive to rule
and oppress our countrymen and law was one indirect but powerful way to do so. It has been more
than 120 years this law came into place. But still there’s no remedy to this problem.

What can be done?

My suggestion to the problem is amending law in such a manner that it clarifies every technicality of
the practical approach. The best outcome will arrive when this law becomes least ambiguous and
more in the favour of public rather than the governing authorities. It should have some limits, some
minimum qualifying boundaries and the defined magnitude in which the framework will function.

Section 124A of Indian Penal Code 1860:

The sedition law was drafted in 1870 by Thomas Macaulay. Looking at the bare act, present
conditions and factual situations, we can conclude that this law does not align with the ideology of
our constitution. Sedition law was introduced when British rulers ruled India and oppressed people
nationwide. The sole motive of this law was to prevent Indians to protest against the British officials
and indirectly towards the queen. Some major examples of Sedition charges are: In 1897, Bal
Gangadhar Tilak was booked for sedition. His speeches deemed to have provoked violent behaviour
of others. Gandhiji, being the editor of the paper ‘Young India’ along with Shankarlal Ghelabhai
Sankar printer and publisher were charged under section 124A for bringing or attempting to bring
into hatred or contempt or exciting or attempting to excite disaffection towards His Majesty’s
Government established by law in British India.21

Therefore, deleting a law is not a remedy. But amending and making it more interpretable is. There
is no statutory provision which cannot be misused thanks to human ingenuity or cunning with the aid
of resourceful lawyers. Misuse of Section 124-A in some cases, however regrettable, is no ground for
its deletion.22

21
https://lawtimesjournal.in/sedition-section-124a-ipc/
22
https://indianexpress.com/article/opinion/columns/sedition-law-constitution-law-freedom-of-speech-5044091/
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 BIBLIOGRAPHY

➢ Bare Acts:
a) The Indian Penal Code 1860
b) The Code of Criminal Procedure 1973
c) Part III of the Constitution of India

➢ Online News Articles:

a) ‘Pro-Afzal Guru sloganeering: JNUSU fight gets intense, AISA denies making anti-national
slogans’ by Debobrat Ghose: https://www.firstpost.com/politics/pro-afzal-guru-sloganeering-
jnusu-fight-gets-intense-aisa-denies-making-anti-national-slogans-2623888.html
b) The Limits of Freedom by Soli J. Sorabjee:
https://indianexpress.com/article/opinion/columns/sedition-law-constitution-law-freedom-of-
speech-5044091/
c) JNU Sedition Case by Press Trust of India:
https://www.livemint.com/Politics/RMyqBY19qftkUVbsD22sNN/JNU.html
d) India Student Leader held on Sedition charges:
https://www.bbc.com/news/world-asia-india-35560518
e) Afzal Guru: A martyr in JNU campus? Anti-India slogans raised; no arrests made:
https://www.indiatoday.in/education-today/news/story/jnu-afzal-guru-308204-2016-02-11
f) Why an Indian Student has been arrested for Sedition? By Sanjoy Majumder:
https://www.bbc.com/news/world-asia-india-35576855
g) Indian Cartoonist Aseem Trivedi jailed after arrest on Sedition Charges:
https://www.theguardian.com/world/2012/sep/10/indian-cartoonist-jailed-sedition
h) MNS workers detained before Raj Thackeray's ED questioning, Section 144 imposed outside Mumbai
office: https://www.indiatoday.in/india/story/mns-workers-detained-raj-thackeray-ed-questioning-
section-144-mumbai-office-1590179-2019-08-22
i) Section 144 in Jammu & Kashmir:
https://twitter.com/ANI/status/1158089549253435393?ref_src=twsrc%5Etfw%7Ctwcamp%5Etwee
tembed%7Ctwterm%5E1158089853097185281&ref_url=https%3A%2F%2Fwww.financialexpress.c
om%2Findia-news%2Fsection-144-imposed-in-kashmir-security-beefed-up-internet-services-
suspended-many-leaders-detained-or-arrested%2F1665998%2F
j) Srinagar hears Midnight knock: https://indianexpress.com/article/india/kashmir-live-updates-
mehbooba-mufti-omar-abdullah-house-arrest-section-144-srinagar-5877958/
k) ‘Is my life in danger?’ Ravish Kumar writes open letter to PM Modi:
https://thewire.in/culture/ravish-kumar-narendra-modi-social-media-trolls-twitter-death-threat

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l) Section 144 imposed in Srinagar: https://www.financialexpress.com/india-news/section-144-
imposed-in-kashmir-security-beefed-up-internet-services-suspended-many-leaders-detained-or-
arrested/1665998/
m) Who is Aseem Trivedi? https://www.ndtv.com/people/who-is-aseem-trivedi-498996

➢ Other Internet Articles:

a) Law of Sedition in India: https://blog.ipleaders.in/law-of-sedition/
b) Sedition – Section 124A IPC: https://lawtimesjournal.in/sedition-section-124a-ipc/
c) Student’s Rights: https://www.jstor.org/stable/4410098?seq=1#page_scan_tab_contents

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