Keeping Public Order: The Executive's Ordinary Powers

Notice what these sections are. They are preventive detention's judicial cousin: they act on a prediction about future conduct, exactly as a detention order does, but the decision is a Magistrate's, made after notice and a hearing, and the sanction is a bond. An answer that contrasts them with the National Security Act has the strongest available criticism of executive detention.

2. Dispersal of assemblies: sections 148 to 151

Section 148. Any Executive Magistrate, or the officer in charge of a police station, or in his absence any police officer not below the rank of sub-inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse, and the members are then bound to disperse. If they do not, or if without being commanded they show a determination not to disperse, the assembly may be dispersed by force, and any person other than a member of the armed forces may be required to assist.

Section 149. If such an assembly cannot otherwise be dispersed and it is necessary for the public security that it should be, the District Magistrate or an Executive Magistrate authorised by him who is present may cause it to be dispersed by the armed forces, and may require an officer in command to do so and to arrest and confine those forming part of it.

Section 149(3) contains the sentence that matters most in a paper about the rule of law. Every such officer of the armed forces shall obey the requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly. That is proportionality written into the ordinary criminal procedure, and it is the standard against which the powers in [The Armed Forces (Special Powers) Act 1958] should be measured.

Section 150. Where the public security is manifestly endangered and no Executive Magistrate can be communicated with, a commissioned or gazetted officer of the armed forces may disperse the assembly himself, but must communicate with a Magistrate as soon as it becomes practicable and thereafter obey the Magistrate's instructions.

Section 151. Protection against prosecution: no prosecution for an act purporting to be done under sections 148, 149 or 150 may be instituted except with sanction. This is a milder ancestor of the immunity in section 6 of the Armed Forces (Special Powers) Act 1958, and the comparison is worth making.

3. Orders in urgent cases: section 163

This is the successor to section 144 of the repealed Code, and it is the most used and most litigated of all the powers in this chapter.

Section 163(1). Where in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government there is sufficient ground for proceeding and immediate prevention or speedy remedy is desirable, the Magistrate may by a written order stating the material facts of the case direct any person to abstain from a certain act or to take certain order with respect to property in his possession or management, if he 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.

Section 163(2). In an emergency, or where the circumstances do not admit of serving notice in due time, the order may be passed ex parte.

Section 163(3). The order may be directed to a particular individual, to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.

Section 163(4). No order shall remain in force for more than two months, extendable by the State Government by notification for a further period not exceeding six months where it considers it necessary for preventing danger to human life, health or safety or for preventing a riot or affray.

Section 163(5) and (6). Any Magistrate may rescind or alter his own order or one made by a subordinate or a predecessor; and the State Government may rescind or alter an order made by it under the proviso to sub-section (4).

Section 163(7). On an application to rescind or alter, the Magistrate or the State Government must give the applicant 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 reasons must be recorded in writing.

The nuisance and dispute powers, sections 152 to 167

The Sanhita's public order Chapter does not end at section 163, and a complete answer on the ordinary powers should be able to place the rest of it.

Sections 152 to 162: conditional orders for the removal of a nuisance. Section 152 empowers a District Magistrate, a Sub-divisional Magistrate or an authorised Executive Magistrate, on a police report or other information and after taking such evidence as he thinks fit, to make a conditional order requiring a person to remove an unlawful obstruction or nuisance from a public place, to desist from a trade or occupation or to remove goods injurious to health, to prevent or stop a construction or dispose of a substance likely to cause a conflagration or explosion, to fence a tank, well or excavation, or to destroy, confine or dispose of a dangerous animal. Section 153 provides for the service of that order, section 154 requires the person either to perform the act or to appear and show cause, and section 155 makes his failure to do either an offence and permits the order to be made absolute.

Sections 156 to 160 are the inquiry: where the person appears and shows cause the Magistrate takes evidence as in a summons case; section 158 permits a local investigation or the examination of an expert; section 159 governs the local investigation and the expert's costs; and section 160 provides for a notice requiring performance once the order is made absolute, with a penalty and the power to have the act done at the person's cost. Section 161 empowers the Magistrate, pending the inquiry, to issue an injunction where immediate measures are needed to prevent imminent danger or injury of a serious kind to the public, and to use his own means if the person fails. Section 162 permits a Magistrate to prohibit the repetition or continuance of a public nuisance.

Sections 164 to 167: disputes as to immovable property. Section 164 is the successor to the old section 145: where an Executive Magistrate is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning land or water, he makes a written order stating the grounds, requires the parties to attend and to put in written statements of their claims as to actual possession, and decides who was in possession, forbidding disturbance until eviction in due course of law. Section 165 empowers him to attach the subject of dispute where there is an emergency or he cannot decide who was in possession. Section 166 deals with disputes as to a right of use of land or water. Section 167 permits a local inquiry for the purposes of sections 164 to 166.

Why these belong in this paper. They are the ordinary preventive jurisdiction of a Magistrate over public order, exercised on a satisfaction and without a trial, and they are the model from which the exceptional statutes in Module II depart. Each of them is subject to a hearing before the order is made absolute, which is the feature the special statutes remove, and each is confined to a specific mischief rather than to a class of person.

What the Supreme Court has added to section 163

The directions in Anuradha Bhasin v. Union of India, AIR 2020 SC 1308, were given about section 144 of the repealed Code, and they apply unchanged to its successor because the language is materially the same.

Facts. After the constitutional changes of 5 August 2019 in Jammu and Kashmir, movement was restricted by orders under section 144 and mobile, internet and landline services were suspended. The Executive Editor of the Kashmir Times and a member of Parliament petitioned under article 32, complaining that a newspaper could not be published, that movement was impossible, and that the orders had not even been published.

Held. Fifteen directions were issued. On the section 144 power specifically: the power is remedial as well as preventive and may be exercised on an apprehension of danger and not only on a present danger, but the danger contemplated must be in the nature of an emergency; the power cannot be used to suppress the legitimate expression of opinion or grievance; the order must state the material facts so that it can be judicially reviewed and must show 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; and repetitive orders would be an abuse of power. All orders under section 144, and all orders suspending telecom services, must be published so that affected persons can challenge them. On the internet specifically, the freedoms in articles 19(1)(a) and 19(1)(g) extend to the medium, an indefinite suspension is impermissible, and the Review Committee must review every seven working days.

Why it matters here. It is the answer to any question about how the rule of law bites on an executive order made for public order. Publication, reasons on material facts, proportionality, the least intrusive measure, a time limit and periodic review. A student can use those six words as a checklist against any power in this book.

4. Preventive action by the police: sections 168 to 173

Section 168 onwards allow a police officer to interpose to prevent the commission of a cognizable offence. Section 170(1) allows a police officer knowing of a design to commit a cognizable offence to arrest the person so designing, without a warrant and without an order from a Magistrate, if it appears that the commission of the offence cannot otherwise be prevented. Section 170(2) is the safeguard: no person so arrested shall be detained for more than twenty four hours unless his further detention is required or authorised under any other provision.

Section 170 is the closest thing in ordinary law to a preventive detention power, and the contrast is instructive: twenty four hours, on a specific design, and only where the offence cannot otherwise be prevented.

A worked example

A political party announces a march through a market area in Thane where communal tension has been reported. The District Magistrate is asked to act.

Option A, section 163. A written order stating the material facts, directed to the public generally when frequenting that area, prohibiting assembly of more than four persons for a stated period not exceeding two months. On Anuradha Bhasin, the order must state the facts, must show application of mind, must be proportionate and the least intrusive measure, and must be published so it can be challenged.

Option B, section 126. If the concern is one named individual with a record of inflammatory speeches, proceedings requiring him to show cause why he should not execute a bond for keeping the peace for up to a year, with notice and a hearing before a Magistrate.

Option C, sections 148 and 149. If the march takes place and turns violent, dispersal by command and then by force, and only if that fails, dispersal by the armed forces with the section 149(3) limit on the force used.

Option D, the National Security Act 1980. Detention of the organiser for three months without charge.

D is available only if A, B and C will not answer the case. That is not sentiment; it is the necessity requirement built into every detention statute, and it is why this chapter comes before Module I's detention chapters.

Distinctions

What it does NOT mean

Section 163 is not a power to ban criticism. Anuradha Bhasin says in terms that it cannot be used to suppress the legitimate expression of opinion or grievance.

It is not a standing power. Two months is the outer limit of a Magistrate's order, extendable only by the State Government by notification and only on the grounds stated, and repetitive orders are an abuse.

A dispersal order is not a licence to use any force. Section 149(3) requires as little force and as little injury as is consistent with dispersing the assembly.

These powers do not disappear when a special statute exists. A State that has the National Security Act still has section 163 and section 126, and the availability of the milder power is an argument against the necessity of the harsher one.

Quick revision

• Security for keeping the peace: BNSS s.126, bond for up to one year, on a show cause notice before a Magistrate. Good behaviour: ss.127 and 129.
• Dispersal: s.148 by command and civil force; s.149 by the armed forces on a Magistrate's requisition, with s.149(3) requiring as little force as possible; s.150 where no Magistrate can be reached; s.151 sanction before prosecution.
• Section 163, formerly section 144 of the repealed Code: written order stating material facts, may be ex parte, may be addressed to the public generally, two months, extendable by the State Government to a further six, rescindable on application with a hearing and recorded reasons.
• Anuradha Bhasin v. Union of India, AIR 2020 SC 1308: publish the order, state material facts, show application of mind, proportionality, least intrusive measure, no repetitive orders; internet suspension temporary only, with review every seven working days.
• Police preventive arrest: s.170, on a design to commit a cognizable offence that cannot otherwise be prevented, twenty four hours only.

Test yourself

1. What is the new number of section 144 of the Code of Criminal Procedure, and why does it matter in this paper? Section 163 of the Bharatiya Nagarik Suraksha Sanhita 2023. It matters because MU's 17 August 2024 circular puts this paper on the new criminal laws, so an answer written in the old numbering is describing a repealed Code.

2. How long may a section 163 order remain in force? Two months from the making of it, extendable by the State Government by notification for a further period not exceeding six months, and only for preventing danger to human life, health or safety or preventing a riot or affray.

3. Give three of the Anuradha Bhasin requirements for an order restricting freedoms on a public order ground. Any three of: publication of the order; a statement of the material facts showing application of mind; proportionality; the least intrusive measure; no repetitive orders; a time limit with periodic review.

4. What limit does the Sanhita place on the force used by the armed forces dispersing an assembly? Section 149(3): the officer shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.

5. Why does a chapter on ordinary powers belong in a paper about extraordinary ones? Because necessity is an element of every extraordinary power, and necessity cannot be assessed without knowing what the ordinary law already permits.