HITO sent representation to the DC of EKH District against the Promulgation of 144 CrPC

Shillong, Nov 03: The president of HITO Mr. Donbok Dkhar today sent the representation to the Deputy Commissioner of East Khasi Hills District against the promulgation of 144 CrPC.

The representation HITO mention that   would like to state that on 28th October, 2022, some members of a particular organization had assaulted innocent civilians during the rally against unemployment.

While it looked like any other rally from upfront but in between members of the group, many masked, punched and kicked bystanders and passers-by and those caught in the traffic jam, and the same apparently emboldened by no action from the police and no visible efforts from the concerned authority(s), and as a result, many people were reportedly injured in the melee.

Pursuant to the said incident, on the 31st October, 2022, vide Memo No. C&S.3/2009/Pt.III/180-A issued by your good office, it was, inter alia, notified that “in exercise of the powers conferred upon me under Section 144 Cr.PC, and with a aim to prevent any NGO or  group or untoward elements from blatantly misusing such rallies or processions to indulge in criminal acts thereby disrupting public order.

In such acts which cause severe inconvenience to the public at large, do hereby prohibit as the assembly of 5 or more people for the purpose of any rally or procession within the whole Shillong City limits, including the Shillong Urban Agglomeration area.

The movement of an assembly of 5 or more people in any rally or procession within the whole Shillong City limits, including the Shillong Urban Agglomeration area. Any violation of the said order will attract penal provisions under Section 188 of the IPC, and any other as deemed fit and appropriate.

In view of the urgency of the matter, this order is being passed ex parte and it shall come into force with immediate effect and remain in force until further orders. (This Order does not apply to religious processions which have obtained due permission from this authority and undertake to strictly adhere to conditions given).”

The said order dated 31-10-2022 issued by your office is however, entirely in contravention to the citizen’s Fundamental Rights as envisaged in Article 14, 19, 25 of the Constitution of India, and other democratic rights of the citizens of the state, and as observed in various decisions of the  Supreme Court of India and the said order appears to be disproportionate and unwarranted, for the reasons stated herein.

That vide the said order, a blanket ban has been imposed on the assembly of 5 or more people for the purpose of any rally or procession within the whole Shillong City limits, including the Shillong Urban Agglomeration area, as well as on the movement of an assembly of 5 or more people in any rally or procession within the whole Shillong City limits, including the Shillong Urban Agglomeration area, and such order is legally untenable and uncalled for.

Moreover, the said order has been passed without taking into confidence and/or deliberating the said issue with the concerned stakeholders. It is well known that the election(s) to the Meghalaya Legislative Assembly is upcoming and round the corner, and as such, various political parties as well as individual candidates, etc., are going to conduct public meetings, etc.

However, the same is greatly hampered due to the said order dated 31-10-2022, and the same is also highly prejudicial towards the upcoming elections and the candidates thereof, without any fault on their part whatsoever and without any role in the said unfortunate incident of 28-10- 2022.

Further, it is stipulated in the said order dated 30-10-2022 that the said Order does not apply to religious processions which have obtained due permission from your good office, and undertake to strictly adhere to conditions given therein. However, the same creates a severe hindrance for the religious as well as cultural institutions, etc., who seek to carry out peaceful rallies/processions on regular intervals.

As such, the said order appears to be an infringement upon the unfettered right to religion under the Constitution of India, and due to a one-off incident caused by one particular NGO, the religious institutions as well as the people at large, are being made to suffer without any reason.

That apart, various groups of civilians, such as teachers, workers, etc., resort to peaceful protests, rallies, etc., so as to bring out their genuine grievances/agendas, however the same is being refrained by the said order dated 31-10-2022, despite that they have no involvement whatsoever with the said incident of 28-10-2022 and whereas such peaceful protests, rallies, processions, etc are always held without any breach of law and order by various groups across the city.

The Constitution of India protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144 unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger, and the innocent civilians, groups, NGOs, cultural organizations, societies, etc. of Shillong should not be deprived of their fundamental and constitutional rights.

The  Supreme Court, has observed that power under Section 144 is exercisable not only where there exists present danger in the nature of an ’emergency’; and moreover, the same cannot be exercised indefinitely. While imposing Section 144, the Magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstances and the restrictions must be proportionate to the situation concerned.

Further, the  Supreme Court has, time and again, held that Section 144 of the CrPC, which prohibits assembly of four or more people, cannot be used as a tool to prevent legitimate expression of opinion, grievance or exercise of democratic rights, and that orders passed under the said section have direct consequences on the fundamental rights of the public and such power, if used in a casual and cavalier manner, would result in severe illegality.

Furthermore, the Hon’ble Apex Court has also held that preventive measures under Section 144 should be based on the type of exigency, extent of territoriality, nature of restriction and the duration of the same. In the present situation, there has been no such incident of violence during rallies apart from the said incident on 28-10-2022, and as such, the said order dated 31-10- 2022 issued by your good office is disproportionate and unreasonable.

In  as much as due to a single untoward incident concerning some members of a particular group which is highly condemnable, but however, as a result of the said order dated 31-10-2022, the entire population is being deprived of their right to expression of divergent views, legitimate expressions and disapproval, and to carry out peaceful assembly, meetings, rallies, protests, etc. and whereas peaceful protests, rallies, processions, etc are always held without any breach of law and order by various persons, groups, organizations, etc, all across the city.

Therefore, in consideration of the above, the undersigned request your good office to relook into the entire matter and take appropriate criminal action against the perpetrators of the said incident of 28-10-2022, but however, the said order dated 31-10- 2022 may be withdrawn/recalled/rescinded by your good office, so that the democratic rights of the innocent citizens are not interfered with without any fault on their part. The representation was sign by the President Mr. Donbok Dkhar and general Secretary Mr. Wanbun N Dkhar.

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