THE Madras High Court Sunday disapproved prohibitory order under Section 144 of the CrPC, issued in Puducherry on behalf of the Election Commission of India (EC), for not indicating any cogent reason for imposing the restrictions on citizens' movement and not clarifying how citizens could go about their daily business.
A division bench of Chief Justice Sanjib Banerjee and Justice Senthilkumar Ramamoorthy said the country allowed expansive freedom to its citizens and, as per the Constitution, no authoritarian regime nor any regimentation of the citizens or their lives would be permissible.
The bench was hearing a public interest litigation filed by R.Rajangam, secretary of the Communist Party of India (Marxist) challenging the prohibitory order issued under section 144 of the CrPC.
Rajan, inter-alia, contended that there was nothing in the relevant order which even remotely suggested any unrest or anything untoward or even the apprehension of anything unlawful for a clampdown to be imposed.
The EC sought to justify the order on the basis that it had also been issued during the general elections since 2014. However, this contention of the EC did not go down well with the court which rebuked the EC and said It was "facetious" that a blanket prohibitory order was passed merely because it was done on one or two previous occasions and despite the order not indicating any basis for any apprehension of trouble or unlawful activities
The EC, however, clarified that the prohibition was restricted to "unlawful assembly and movement, holding of public meetings, carrying of weapons, sticks, banners, placards etc., by any person … and … shouting of slogans and using of loudspeakers and acting in any manner detrimental to public peace and tranquility…" The EC was quick to indicate that the prohibitory order did not apply to religious functions, marriages, funerals and the gathering of people inside polling booths for voting purpose.
The court thus asked the EC to inform citizens immediately by a further clarification that the expression "prohibit the unlawful assembly & movement" would not stand in the way of citizens going about their normal business and chores and even gathering for private functions, if only to celebrate Sunday evening or Monday afternoon. Similarly, the prohibition in the impugned order should not deter friends and family congregating together to go to vote and celebrate the festival of democracy in the proper spirit.
"There is no doubt that the Election Commission has primacy in how to conduct elections and the control of law and order, in a sense, passes on to the Election Commission at the time of the elections being conducted; but just like any other authority answering to that description in Article 12 of the Constitution and notwithstanding Article 324 thereof, the Election Commission is also required to act reasonably, rationally and without the slightest hint of any bias on its part", the HC said.
It added since campaigning had come to an end, political activities may not be carried on and the modern-day menace of motorcycle rallies must be curbed with a heavy hand; but the ordinary citizen must be left free to do whatever they choose without being found to be in breach of the impugned order and without any fear in such regard being instilled in them.
It went on to remind the officials that curbs were imposed on citizens and their freedom of movement and the like only when there was an imminent need or it was in the larger public interest.
"Due care and caution must be exercised to ensure that the restrictions are not unreasonable or suffocating. The present kind of unreasoned order prepared 10 or 15 days in advance and produced a day or two before it becomes effective goes against the ethos of Section 144 of the Code, though it must be acknowledged that the Union Territory says that the notice was published on the Union Territory's website on March 23, 2021", the bench said.
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