Urgent Orders in Cases of Nuisance or Apprehended Danger

• to abstain from a certain act; or
• to take certain order with respect to certain property in his possession or under his management,

if the Magistrate considers that the 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, or an affray.

Every part of that is a limit and none of it should be skipped in an answer. The order must be written. It must state the material facts. It must be served as section 153 provides. And the Magistrate must form an opinion both that there is sufficient ground and that immediate prevention or speedy remedy is desirable.

Section 163(2) to (7): the rest of the section

Sub-section (2), ex parte. An order may, in cases of emergency, or where the circumstances do not admit of serving a notice in due time on the person against whom it is directed, be passed ex parte.

Sub-section (3), to whom. An order 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.

Sub-section (4), how long. No order shall remain in force for more than two months from the making thereof.

The proviso. If the State Government considers it necessary for preventing danger to human life, health or safety, or for preventing a riot or any affray, it may, by notification, direct that the order shall remain in force for a further period not exceeding six months from the date it would otherwise have expired.

So the maximum is two months by the Magistrate, plus up to six more by the State Government, and the extension is by notification and only on the narrower grounds the proviso names.

Sub-section (5), rescission by a Magistrate. Any Magistrate may, on his own motion or on the application of any person aggrieved, rescind or alter an order made by himself, by a Magistrate subordinate to him, or by his predecessor-in-office.

Sub-section (6), rescission by the State Government. The State Government may likewise rescind or alter an order it made under the proviso to sub-section (4).

Sub-section (7), the hearing. Where an application under sub-section (5) or (6) is received, the Magistrate or the State Government shall afford the applicant an early opportunity of appearing, in person or by an advocate, and showing cause against the order; and if the application is rejected wholly or in part, the Magistrate or the State Government shall record in writing the reasons for doing so.

Sub-section (7) is easy to overlook and it is the section's own safeguard: the person hit by an ex parte order has a right to be heard early, and a right to reasons if he loses.

The cases

Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, AIR 1971 SC 2486.

Facts. Madhu Limaye and others challenged the constitutional validity of section 144 of the Code of Criminal Procedure 1898, and of the security for keeping the peace chapter, as offending the freedoms of speech, assembly, association and movement in article 19(1)(a), (b), (c) and (d). The occasion was an order restraining a gathering.

Held. The Constitution Bench upheld the provisions as interpreted by it, and the interpretation is what a student needs. The gist of action under the section is the urgency of the situation and its efficacy in preventing some harmful occurrence. Because the power can be exercised absolutely and even ex parte, it follows that the emergency must be sudden and the consequences sufficiently grave; without that, the exercise of the power has no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner, which can stand further judicial scrutiny as to the need for its exercise, its efficacy and the extent of its application. There is no general proposition that such an order cannot be passed without taking evidence. The key note of the power is to free society from the menace of serious disturbances of a grave character.

Why it matters. It is the authority for the constitutionality of what is now section 163, and it supplies the four-part standard: sudden emergency, grave consequences, judicial manner, judicial scrutiny.

Anuradha Bhasin v. Union of India, AIR 2020 SC 1308.

Facts. Restrictions on movement and on telecommunications, including the internet, were imposed in Jammu and Kashmir in August 2019, partly by orders under section 144. The editor of the Kashmir Times and others challenged them, saying the orders were blanket, unpublished and therefore unchallengeable.

Held. On the section itself the Court held:

• the power is remedial as well as preventive, and is exercisable not only where there is present danger but where there is an apprehension of danger; but the danger must be in the nature of an emergency;
• it cannot be used to suppress the legitimate expression of opinion or grievance or the exercise of any democratic rights; divergent views and disapproval cannot be the basis for invoking it unless there is sufficient material showing a likely incitement to violence or a threat to public safety or danger;
• an order should state the material facts so as to enable judicial review, and must be passed bona fide and reasonably on material facts indicative of application of mind;
• the Magistrate is duty bound to balance rights and restrictions on the principle of proportionality and to apply the least intrusive measure;
• repetitive orders would be an abuse of power; and
• all orders in force, and any future orders, must be published, so that affected persons can challenge them.

The Court also held that freedom of speech and expression and the freedom to carry on trade over the internet enjoy constitutional protection under articles 19(1)(a) and 19(1)(g), that an indefinite suspension of internet services is impermissible, and that suspension orders are subject to periodic review and judicial review.

Why it matters. It is the modern law on this section, and it is what an examiner wants when a question asks about the misuse of "section 144" orders.

A worked example

A Sub-divisional Magistrate at Kalyan learns that two groups intend to take out processions on the same route on the same evening, and that there was a stabbing between them last month.

Is the section available? He must form an opinion that there is sufficient ground for proceeding and that immediate prevention or speedy remedy is desirable, and that a direction is likely to prevent a disturbance of the public tranquillity, a riot, or an affray. On these facts it is.

What must the order look like? A written order stating the material facts of the case, served as section 153 provides. After Anuradha Bhasin the material facts must show application of mind, and the order must be published.

May he pass it without hearing them? Yes, in an emergency or where the circumstances do not admit of serving notice in due time, section 163(2).

Whom may he bind? Named individuals, or persons residing in a defined area, or the public generally when frequenting or visiting that area, section 163(3).

How wide may it be? He must balance rights and restrictions on the principle of proportionality and apply the least intrusive measure, per Anuradha Bhasin. Prohibiting all assembly in the whole town for a month would fail that test if prohibiting the two processions on one road for one evening would do.

How long? Not more than two months, section 163(4). The State Government may, by notification, extend it for a further period not exceeding six months if necessary to prevent danger to human life, health or safety or to prevent a riot or affray.

A shopkeeper whose business is shut by the order objects. He may apply under section 163(5). The Magistrate shall afford him an early opportunity of appearing, in person or by an advocate, and showing cause; and if the application is rejected wholly or in part the Magistrate shall record his reasons in writing, section 163(7).

Two months later the Magistrate simply passes a fresh order in the same terms. That is what Anuradha Bhasin calls an abuse of power: repetitive orders are impermissible, and if the situation genuinely continues the answer is a proceeding under another provision, for example security for keeping the peace under section 126.

Distinctions

What this does NOT mean

It is not section 144 any more. That was the old Code. Under the Sanhita it is section 163.

It is not a power to prevent protest. Anuradha Bhasin says in terms that it cannot be used to suppress the legitimate expression of opinion or grievance or the exercise of democratic rights, unless there is sufficient material showing a likely incitement to violence or a threat to public safety.

It is not unreviewable. Madhu Limaye described it as a power used in a judicial manner which can stand judicial scrutiny, and Anuradha Bhasin requires the order to state its material facts precisely so that it can be reviewed.

And it does not last while the trouble lasts. Two months is the limit, the extension is the State Government's and is capped at six months, and repeating the order is an abuse.

Quick revision

• Section 163(1): a District Magistrate, Sub-divisional Magistrate or specially empowered Executive Magistrate; sufficient ground and immediate prevention or speedy remedy desirable; a written order stating the material facts, served under section 153; directing a person to abstain from an act or to take certain order with respect to property; to prevent obstruction, annoyance or injury to a person lawfully employed, danger to human life, health or safety, or a disturbance of the public tranquillity, a riot or an affray.
• 163(2): may be ex parte in an emergency or where notice cannot be served in time.
• 163(3): to an individual, to persons in an area, or to the public generally.
• 163(4): two months, extendable by State Government notification for a further period not exceeding six months, and only to prevent danger to life, health or safety, or a riot or affray.
• 163(5) and (6): rescission or alteration by a Magistrate or by the State Government, on their own motion or on application.
• 163(7): an early opportunity to appear and show cause, and written reasons if the application is rejected.
• Madhu Limaye: sudden emergency, grave consequences, a power used in a judicial manner, open to judicial scrutiny; valid against article 19(1)(a), (b), (c) and (d).
• Anuradha Bhasin: publish the orders; state the material facts; proportionality and the least intrusive measure; no repetitive orders; the power cannot suppress legitimate expression.

Test yourself

1. Who may pass an order under section 163? A District Magistrate, a Sub-divisional Magistrate, or any other Executive Magistrate specially empowered by the State Government.

2. How long can such an order last? Not more than two months from the making of it; but the State Government may by notification extend it for a further period not exceeding six months, if necessary to prevent danger to human life, health or safety or to prevent a riot or affray.

3. Can the order be made without hearing the person affected? Yes, in cases of emergency or where the circumstances do not admit of serving notice in due time, section 163(2). He may then apply under section 163(5) and must be given an early opportunity of showing cause.

4. State the standard laid down in Madhu Limaye. The gist of the action is the urgency of the situation; since the power may be exercised absolutely and ex parte, the emergency must be sudden and the consequences sufficiently grave, and it is not an ordinary administrative power but one used in a judicial manner which can stand judicial scrutiny as to the need for its exercise, its efficacy and its extent.

5. Give three of the requirements Anuradha Bhasin laid down. That all orders in force and future orders be published so they can be challenged; that an order state the material facts indicating application of mind, to enable judicial review; and that the Magistrate balance rights and restrictions on the principle of proportionality and apply the least intrusive measure. The Court also held repetitive orders to be an abuse of power.

6. May an order under section 163 bind the general public? Yes. Section 163(3) allows it to be directed to the public generally when frequenting or visiting a particular place or area.

7. What must a Magistrate do if he rejects an application to rescind such an order? Record in writing the reasons for doing so, section 163(7), after affording the applicant an early opportunity of appearing and showing cause.