Section 144 In Mumbai Explained: Why Mumbai Police Issues These Orders

Mumbai Police has clarified that news and social media reports claiming imposition of curfew in the city, restricting movement and group activities of citizens are false. The police have termed the notifications cited by news reports as routine and regular orders.

On November 30, 2022, the Mumbai Police issued two notifications.

While one notification was valid through December 3 to 17, 2022, the second starts from December 4 and ends on January 2, 2023.

Both the notifications ban public gatherings, assembly of five or more people, playing music and displaying banners publicly in the city. Both were issued under Section 37 of the Maharashtra Police act, formerly known as the Bombay Police Act. The order also listed exemptions including gatherings for weddings, processions for funerals, audiences at theatres meetings of societies, clubs and companies.

The notifications led to a flurry of news stories reporting that Section 144 and a curfew had been imposed in the city of Mumbai. With the dates coinciding with the year-end, Christmas and wedding season celebrations, the news caused panic and confusion among residents and those visiting the city.

Within a few hours, Mumbai police issued another notification saying, the previous orders were for "public gatherings" and do not denote a "curfew".

BOOM looked at all notifications issued by the Mumbai Police between the years 2019-2022 and found that it was indeed routine, with the department having issued similar orders like clockwork every two months. While some of these prohibitory orders were issued under Section 37 of the Maharashtra Police Act, others were issued under Section 144 of the Criminal Procedure Code (CrPC) and at times simultaneously under both.

In 2021, the Mumbai police issued 10 prohibitory orders under the Maharashtra Police Act starting from January 21, 2021 till December 26, 2021. In 2022, the order was issued thrice.

In 2020 and 2021 - when the country was under lockdown, these prohibitory orders were still issued, separate and in addition to the COVID-19 lockdown guidelines.

Deputy Commissioner of Police, Operations, Vishal Thakur who issued the notifications explained that the orders are nothing special. "These are routine orders. They are renewed every few months," Thakur said. When asked why they are issued, he says, "There is a law, so we issue the order. Why would the law exist if the order cannot be issued."

The CrPC, defines Section 144 as, "Power to issue order in urgent cases of nuisance or apprehended danger" explaining it as, "...direct any person to abstain from a certain act...if such direction is likely to prevent or tends to prevent, obstruction, annoyance or injury to any person... or danger to human life, health or safety or a disturbance of the public tranquility or a riot..."

While the Section 144 lets the State or the issuing authority decide what counts an act that could be disrupt public peace, section 37 of the Maharashtra Police Act goes a step further and defines all the activities that are prohibited.

The act states, "Power to prohibit certain acts for prevention of disorder" and adds, that the Commissioner of District Magistrate can issue the order, ..."as he shall consider necessary for the preservation of public peace or public safety". The order then goes on to prohibit carrying of arms including swords, stones, spears and guns which can cause physical harm. It also states that nobody can exhibit effigies of persons and prohibits the public utterance of cries, singing of songs and playing of music. Additionally, it also bans showing and distributing of pictures, symbols, placards and anybody making aggressive speeches.

Advocate Yug Chaudhary calls the section a remnant of the police and colonial raj. "It gives exceptional power to the police and that itself makes it unconstitutional. It also shows that the police and authorities are not applying their mind and only blindly issuing such orders," he says. "There is a constant Section 144 in Mumbai. It is against all rights of a citizen." He further explains that the delivery of harangues in the Maharashtra Police Act (aggressive speeches) is ploy to stop protests.

BOOM while going through the issued orders for the years 2021 to 2022 found several orders issued under the ambit of Section 144 of the CrPC prohibiting special actions.

A order issued by the police in September 2021 under section 144, bans, "taking, publishing and circulating" photographs of "half dissolved idols lying ashore" as it is likely to "outrage religious feelings of devoted Hindus".

The order for CCTV installations orders all private establishments to install close circuit television cameras with features of recording and playback and provide the "recorded CCTV footage to the police" whenever demanded. Private establishments according to the order include places of woship, residential buildings, alcohol stores, theatres etc.

According to police sources, these prohibitory orders are not new. "They have been in place for decades," says a senior officer not wishing to be named. He adds, "It was even more prevalent when gang wars were frequent in Mumbai." The officer explained that the communal violence of 1992-93 after the demolition of the Babri Masjid, made the order an almost permanent fixture. "One cannot hold a protest in Mumbai without a prior police order. And with this order in place, any gathering of five or more persons automatically deems it unlawful," he says.

When asked if the police take action on all such groups of five or more people, the officer says, "No. It is not like the Mumbai police is going and arresting anybody in a group of five or more. Mumbai has a large population, with crowds everywhere. These intensify during festivals. How can the police arrest anyone in a group of five or more?"

What purpose does the prohibitory order serve then? To this the officer says, "It gives the right to the police to make an arrest in case they find any breach of law and order and peace."

Advocate Mihir Desai says this term "breach of law and order" is vague and gives almost arbitrary powers to the police. "The sections say there should be genuine apprehension of danger to peace and public safety. How is applying prohibitory orders round the clock showing any kind of genuine apprehension. Does the Mumbai police believe that any act by a resident of the city, done in a public place, accounts as a possibility of breaching public law and order," asks Desai. "If that is the case, then may be they are not doing their job of policing, investigating and intelligence gathering," said Desai.

Desai adds that the application of Section 144 of the CrPC and Section 37 of the Maharashtra Police Act on a permanent basis is unconstitutional. "It is a way of curtailing the right to protest. The rights to assemble and protest is a fundamental right. By disallowing a gathering of five or more persons, the police is going against the same right." He adds, "People protest to raise their voice against something the government or a institution is doing or failing to do. By issuing prohibitory orders, the police is looking to monitor and scrutinise every protest. The police cannot dictate when and how citizens choose to protest."

A senior police officer formerly with Mumbai police says that the issuing of prohibitory orders under Section 37 of the Maharashtra Police act has become so routine that no officer questions it anymore. Calling section 37 of the Maharashtra police act a "watered down" version of section 144, the officer says,"It is issued so that if the police have a suspicion about any gathering, any person, they can easily question him. The police need to do their job - which is to keep a city and its residents safe. This act ensures that," he says.

He goes on to add, "It has become necessary to always pre-empt a situation where the law and order could go for a toss." He also rubbishes that such prohibitory orders are only issued in Mumbai."The orders are issued under an act that applies to the whole of Maharashtra and not just the city of Mumbai. All big cities in the state including Pune, Nagpur issue these orders before festivals," he says.

"No sitting DCP will ask why such an order needs to be issued. But that does not mean they like issuing it," he says. Elaborating, the officer says, "No police officer likes to curtail the freedom or movement of the people. But at times it is necessary to preventive actions."