Sonu Mehtha
Amidst numerous orders being passed under Section 144 of the Code of Criminal Procedure Act, 1973 it is pertinent to note the words of Justice N.V. Ramana who quotes that “Emergency does not shield the actions of Government completely;” Both the Central & State Governments have passed repetitive orders under the grab of COVID emergency which is a sheer abuse of power by the executives.
The validity of such restrictions has to be tested on its reasonableness. The restrictions imposed must be proportionate to the proposed/perceived threat. The Court in MadhuLimaye has stated that the emergency must be sudden and the consequences sufficiently grave. The situation of COVID does not fulfill the criterion of being a ‘sudden emergency’ and posing restrictions on information sharing, internet connectivity is way beyond what is required to control the situation. It is also beyond the permissible limits of the law.
Liberty and security, unlike oil and water should mix in order to ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time. The recent landmark ruling in AnuradhaBhasin v. Union of India attempted to strike a balance between these two. The power under Section 144, Cr.P.C can be used when there is an apprehension of danger. In the present context of the Pandemic, there is a ‘mere presumption of danger’ when it relates to internet connectivity restriction or information sharing restriction and not ‘real apprehension of danger’ and therefore the power under Section 144, Cr.P.C should not be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
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