Events leading upto Anna Hazare’s arrest and the Section 144

The battle between Team Anna Hazare and the UPA Government is one of David vs Goliath.  Team Anna has handful of people who are making the main decisions, but they are very competent.  On the other hand, there is the Government, where two ministers at the forefront of the battle happen to be very famous Lawyers of the Supreme Court – P. Chidambaram and Kapil Sibal.  Yet, the over confidence in their Swiss Bank balance and the assumed legal power have made this Government act like a bunch of jokers.

The sequence of events suggests how the various Government agencies like Delhi Police, MCD, NDMC etc were manipulated for the personal interests of the Ministers in their bid to shelter their black money stashed outside the country.  As the Team Anna lawyer, Prashant Bhushan contended:

It is not the Delhi Police which is taking these decisions. There is no freedom for Delhi Police. It has become a puppet, an ornament in the hands of Central government.

Bhushan further suggested that the way Anna Hazare was arrested, it seemed as though

detention of Hazare was a “kind of detention under Maintenance of Internal Security Act (MISA)”.

The Maintenance of Internal Security Act (MISA) was a law that was enacted in 1971 for the sole purpose of Emergency by Indira Gandhi.  It was  to allow the Indira Government to

” indefinite “preventive” detention of individuals, search and seizure of property without warrants, and wiretapping – in the quelling of civil and political disorder in India, as well as countering foreign-inspired sabotage, terrorism, subterfuge and threats to national security”

Gandhi’s government used it against Jan Sangh or the Janata Party with impunity.  The law was repealed in 1977 and 42nd amendment removed it from the 9th schedule.

In Team Anna’s case, similarly, every arm of the Government has made been twisted and a mockery has been made of every principle of democracy.  Specially the Section 144 of the Criminal Procedure Code.  Let us first look through the sequence of events and then we will discuss the Section 144 of CrPC.

Countdown to Team Anna’s Arrest

• July 15: India Against Corruption (IAC) organization wrote to Deputy Commissioner of Police, New Delhi saying “Anna Hazare will sit on an indefinite fast at Jantar Mantar from August 16 if government does not present a strong Lok Pak Bill”.
• July 15: Additional Commissioner of Police, New Delhi district responds asking for an undertaking, without which IAC would not be able to organise and hold the “dharna”.  Undertaking had over 20 conditions for getting permission from land-owning authority, no erection of Shamiana, restrictions on loudspeakers etc.  CIted an unrelated Supreme Court judgment relating to Destruction of Public Property of 2007
• July 18: Delhi Police writes to IAC saying Jantar Mantar has limited space and one organisation cannot take it.  Wanted limited number of people and a definite time period for hunger strike.
• July 27: IAC writes letter to Chairperson of New Delhi Municipal Corporation (NDMC) for permission to hold hunger strike at Jantar Mantar
• July 29: IAC responds to Delhi Police’s letter dated July 18 saying “Since it is an indefinite fast, we would not be able to give you the duration of the fast”.  Also said couldn’t ensure a specific number of people coming in.
• July 29: IAC wrote a second letter citing imposition of Section 144 of the Criminal Procedure Code in most parts of New Delhi and asked for the status of their application.
• August 2: Delhi Police informed IAC that the permission to fast at Jantar Mantar was denied saying “since your information is evasive, vague, and incomplete, and taking into account that Jantar Mantar has a very limited space”
• August 2: IAC wrote asking for alternative venues which was close to central Delhi and connected by bus/Metro.
• August 3: IAC wrote to Deputy Director of Horticulture, Municipal Corporation of Delhi City Zone for booking Ramlila Maidan from August 16 through 31.
• August 5: IAC wrote to Delhi Police to meet the Commissioner.  Arvind Kejriwal and Prashant Bhushan met him.
• August 5: MCD granted IAC permission to hold its protest from August 15 through 31 if IAC could get the “No Objection Certificate” from Delhi Police.
• August 5: IAC writes to Delhi police informing it of the intention to hold fast from August 16 through 31 at the Ramlila Maidan.
• August 9: Delhi Police writes offering only conditional permission near the fenced space behind Daryaganj near Rajghat, “subject to permission from DG, CPWD (Central Public Works Department)
• August 10: Delhi Police writes to IAC that conditional permission for Jayprakash Narayan (JPN) Park near Ferozshah Kotla could be given, subject to land owning authority.
• August 11: IAC agrees to JPN Park and writes to Ministry of Urban Development (landowning authority) for NOC
• August 13: Delhi Police writes back saying “We have been advised that the proposed venue cannot be allotted beyond one or two days” along with 22 conditions.  These included having to vacate by August18, gathering of no more than 4000-5000 people, Government doctors to check Hazare 3 times a day and only 50 cars to be allowed.
• August 14: IAC gives undertaking accepting 16 of the 22 conditions. Signed by Anna Hazare, Shanti Bhushan, Kiran Bedi, Prashant Bhushan and Arvind Kejriwal; the undertaking clearly promised “We shall be responsible to keep the followers under control, failing which I along with other organizers and protestors may be prosecuted under the law”..  Did not accept restriction of number of days or number of people at the venue.
• August 15: Delhi Police wrote to IAC: ‘…you have refused to give an undertaking on all the points, as required by us. Therefore… the permission for fast/dharna at JPN Park cannot be accorded to you. You also do not have permission from the land-owning agency. Therefore, you are informed that any assembly by your organisation at that venue would be unlawful.’
• Finally: Delhi Police imposed Section 144 CrPC at JPN Park and arrested Hazare and other members of Team Anna.

WHat is Section 144 of the Criminal Procedure Code

Section 144 of the Criminal Procedure Code bars the assembly of five or more people without permission from the police.  This came into force along with the Criminal Procedure Code in 1861 under the British.

Although there are wide powers with the Executive Magistrate, yet certain conditions need to be met before this special recourse can be resorted to by any Government agency.  They are:

1. Although the Magistrate has a power under this section to pass orders ex-parte¸ however generally the procedure that is followed is to serve a notice to the person against whom the order is being passed. Only in cases of extreme critical situations that the Magistrate has to resort to passing an ex-parte order.
2. Additionally, the persons aggrieved by the order have a right to challenge the order on the grounds they find appropriate. This supports the view that the power granted under this section is not arbitrary.
3. To substantiate the above, an opportunity for hearing and to show cause is also provided to the person challenging the order of the Magistrate. Therefore, the principles of natural justice are also complied with under this section.
4. Next the court also stated that the fact that the aggrieved party has the right to challenge the propriety of the order, makes the action of the Magistrate more reasonable and based on cogent reason.
5. Finally the High Court’s power of revision under section 435 of the Code read with section 439 of the code also makes up for the condition that the order under section 144 is non-appeal able. The High Court can either quash the order or ask the Magistrate for the material facts, therefore ensuring accountability of the Magistrate.

By resorting to the Section 144 against Team Anna, the way this Government did, it has pushed itself in a corner.  Let us hope that the fight henceforth against this corrupt Government will be strong and sustained.

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