Imposition of Restrictions under Section 144 Cr.P.C. and the Test of Proportionality

Imposition of Restrictions under Section 144 Cr.P.C. and the Test of Proportionality


A three-judge bench of the Supreme Court gave down its decision in the case that stimulated the five-month-long internet shut-down and an Emergency-like encumbrance of Section 144 Cr.P.C, in Jammu and Kashmir post the de-operationalization of Article 370. The Court inter alia endured that freedom to exercise any profession or conduct on any trade, business or profession over the means of the internet is preserved under Article 19(1)(g) and the ability to force limitations under Section 144 Cr.P.C., is directed to the laws of ‘proportionality’. In this article, I would explain the logic and results of the applicability of the laws of proportionality to the ability to inflict restraints under Section 144 Cr.P.C.

A note on Section 144 Cr.P.C

Section 144 Cr.P.C allows the State to force some limitations on the actions of a person or a collection of persons in a distinct area or in common to limit an essential violation of public peace and tranquility. Section 144 CrPC bestows wide-ranging controls on the State, but is nevertheless subjected to several defenses also. A seven-judge bench of the Supreme Court in Madhu Limaye v. Sub Divisional Magistrate,

Monghgyr has placed down that the authority under Section 144 Cr.P.C must be

(a) Employed only in critical circumstances where the “ the emergency is immediate and the results adequately grave”
(b) Employed in a judicial practice which can reach additional judicial investigation
(c) Employed only when the position is adequately grave to profess a menace to public order.

Nevertheless, it has been recognized that these permissions have not been sufficient to control the suppressive trends of the state. The State has been seeking refuge in the original confusion of these permissions to inflict severe limitations on the fundamental rights of the citizens under the subterfuge of safeguarding civil peace and tranquility. Hence there was a desperate requirement to add additional constraints on the laws of the State under Section 144 Cr.P.C. to limit misuse of such powers and discover an equilibrium among fundamental rights of residents and safeguarding civil peace and tranquility.

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Laws under Section 144 Cr.P.C and the proportionality test

In the contemporary case, the Petitioners contended that the intrusion of constant limitations under Section 144 Cr.P.C must not only be examined on the aforementioned protection but also the reasonableness and proportionality of the pressure of limitations.

In light of these allegations, the Court repeated its judgment in the Ramlila Maidan Incident case, wherein it was regarded that an excessive obligation is cast upon the Magistrate to force the least invasive restraint viable and that limitations should never be extreme or in time. The Court moreover noted that the grounds for the demand must be fair, scarce invasive, and bona fide. The limits should not be permitted to overshadow the restraints of the condition at hand.

The Court also relied on its decision in the Modern Dental College case, wherein the Court had placed down a four-fold analysis to discover the permissibility of a restriction on any constitutional right.

The test is as follows :
• the restriction must be for a precise purpose
• There must be a reasonable association within the restriction inflicted and the desire to be satisfied
• Non-availability of alternative actions that may similarly reach the same goal with a lesser level of restraint; lastly
• There requires to be a balancing (proportionality severe sense) between the value of obtaining the precise purpose and the civil consequence of limiting the restriction on the constitutional right.

Thus, relying on these decisions and also on the K. S. Puttaswamy (I) decreeing the Court held that the infinite shut down of internet and the constant encumbrance of limitations under Section 144 Cr.P.C in Jammu and Kashmir might meet the other experiments but disappoints the proportionality test as envisioned by Puttuswamy (I).

‘Proportionality test’ as a means to check conflicting rights

Hitting the right equilibrium among two contradictory rights has always been a controversial question challenged by the Constitutional Courts world over. The responsibility of balancing is more relaxed when there is a dispute between two competing priorities. But, when there is a dispute within a right and a control the question grows more complicated. This is also valid when the dispute is between individual freedoms, like that of the power to move around easily and the rights of the society at large, like public unity and tranquility. In such circumstances, the Courts allow a difficulty wherein, neither of these powers can be provided influence over the other.

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In the modern case, there is a dispute between the unique rights of free speech and expression and liberated mobility ensured by Article 19 of the constitution vis-à-vis the preservation of public peace and tranquility. Hence, the Court has adopted the ‘proportionality test’ as an interpretational means to uncover the right equilibrium among these contradictory rights.

The Court, in this case, presented two-pronged logic for the use of the proportionality test. Firstly that proportionality is inserted in the ‘reasonable limitations’ consecrated in Article 19 and also, that proportionality promotes the peaceful conjunction of contending rights and restrictions.

Emphasizing the relationship between ‘reasonable restriction’ beneath Art. 19 and the law of proportionality, the Court opined that proportionality is rooted in the reasonable restriction that is staying set on the equal right under Article 19. The ‘reasonable restriction’ attempts to discover a balance among the freedom assured by any sub-clause of clause (1) of Article 19 and the social agreement authorized by any of the clauses (2) to (6). Thus the phrase ‘reasonable’ implies that the constraint forced on the benefit of any right must not be unreasonable or of an extreme nature past what is needed in the attention of the public. It is here that the notion of proportionality comes into action as a just criterion to uncover the right equilibrium. Hence, when a law restricts a lawful right, such a restriction is lawful only if is proportionate.

Thus, the Court, while interpreting the harmonious accord of rights and constraints, requested the Oakes test propounded by the Supreme Court of Canada in R. v. Oakes. The Oakes test sets down that to support a restriction there must be one, the purpose attempted to be obtained by the restriction must be of enough interest and two, the means adopted must be ‘fair and demonstrably justified’. Being ‘fair and demonstrably justified’ involves the proportionality analysis in it. Even though the kind of proportionality may differ depending on the conditions, there are three continuous elements of proportionality which requires to be accomplished.

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First, the means must be reasonably correlated to the purpose. Second, the means should hurt ‘as short as likely’ the right in issue. And third, there must be proportionality among the consequences of the actions which are capable of restricting the power and the purpose sought to be accomplished.

In light of such thinking, the Court holds that the recurring intrusion of limitations under Section 144 Cr.P.C fails to transfer the proportionality examination. Such intrusion of constraints is extreme than what is needed in the concern of the people and thus disappoints the proportionality test rooted in the ‘reasonable restriction’ under Article 19.

Therefore, though there is a rational relationship within the intrusion of limitations under Section 144 and preservation of public peace and tranquility, the constant encumbrance disappoints to destroy ‘as little as likely’ and also there is no proportionality whatsoever in the results of the intrusion i.e an emergency-like reduction of fundamental liberties and the purpose attempted to be obtained i.e. preservation of civil peace and tranquility. Therefore the Court held that the constant intrusion of limitations under Section 144 Cr.P.C as illegal.


Governing the laws of the State to force limitations under Section 144 Cr.P.C to the ‘proportionality analysis’ is an incremental progress in law. Earlier, the ‘proportionality test’ was only implemented to the parliamentary operations of the State i.e. the ordinances limiting the fundamental rights were demanded to transfer the ‘proportionality test’ as in the matter of Puttuswamy (I). Whereas, by controlling the laws of the State under Section 144 Cr.P.C to the ‘proportionality test’ the Court has produced both legal skills of the Divisional Magistrate and the administrative skills of the Executive Magistrate under the ambit of proportionality.

By broadening the range of the ‘proportionality test’ the Court has granted an added protection against the administrative authority to force limitations and reduce fundamental benefits. Such an extensive range of the ‘proportionality test’ would go an extended way in curbing the irrational, extreme, and capricious use of laws under Section 144, Cr.P.C by the Executive department of the State.

Author: Nishtha Kheria,
Amity Law School, Amity University Noida 4th Year 7th semester / Student

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