On Wednesday evening, two large states ruled by the Bharatiya Janata Party – Uttar Pradesh and Karnataka – imposed prohibitory orders under Section 144 of the Code of Criminal Procedure banning the assembly of five or more people in their entire states to avert protests against the Citizenship Amendment Act.

The orders violate guidelines that the Supreme Court has placed in several judgments on using the law. Section 144 is a serious restriction on the fundamental rights to expression, assembly and association and is expected to be invoked only in circumstances where concrete evidence is available of threats to public order.

In these two states, not only are the orders weak in their reasoning but also arbitrary as it is practically impossible to implement such a ban. In a way, the prohibitory orders seem to be a tool to justify police action against protestors, even if it is not warranted.

Preventing unlawful assembly

Section 144 of the Code of Criminal Procedure gives the executive magistrate or an officer empowered by the state government to prohibit any unlawful assembly in their jurisdiction. While the law is meant to prevent “unlawful assembly”, it is usually used to curb any gathering of more than four people, regardless of whether they intend to break the law.

Over the last several decades, the Supreme Court has ruled several times on when such an order can be imposed. The court has argued that the powers under Section 144 is not absolute and the orders have to be backed by informed reasoning and a real threat to public tranquility.

The mere anticipation of a threat to public order is not enough ground to use Section 144, as the provision is in the manner of curbing the fundamental rights of expression and assembly. The restriction has to be reasonable in nature and hence the requirement of the existence of an actual threat to public order and not just a perceived threat. But in Bengaluru, the order says it is being imposed to avert inconvenience to the public, which is clearly not a decisive reason for such a curb on fundamental rights.

In the case of the rest of Karnataka and Uttar Pradesh, not only have the governments invoked Section 144, they have invoked it in a way that is not reasonable. It is not as though the entire state is protesting against the Citizenship Amendment Act. And it clearly not acceptable to claim that every such protest is a threat to public order.

Secondly, the invocation of Section 144 in these states is also practically impossible to implement and exposes the entire population to arbitrary police action. Uttar Pradesh has a population of over 200 million and consists of a vast area. The reason for making Section 144 orders specific and geographically-confined, apart from minimising impact on fundamental rights, is that it could be communicated easily to the intended population so that they do not come in conflict with law, which mandates that an assembly of more than five people should not be held.

When Section 144 is imposed across a vast state like Uttar Pradesh or Karnataka, it would require enormous resources to communicate to the population. However, both these states imposed the orders late in the evening for the intended date, that is Thursday.

When the order is arbitrary as in this current case, the police cannot claim the legal logic that ignorance of law is not an excuse and act against those who may assemble without the knowledge of the law being in force. In a way, the administration is forcing the population to commit a illegal act.

Not only are the orders legally wrong, they are completely arbitrary and expose large sections of people to penal action.