Even the slightest of restriction on the citizens’ movement has to be justified. The issuance of a supercilious prohibitory order on the ruse that it would lead to a smooth conduct of the election cannot pass muster without there being any justifiable basis therefore. A division-judge bench consisting of Sanjib Banerjee and Senthil Ramamoorthy JJ; while adjudicating the matter in R. Rajangam v. Union Territory of Puducherry; [W.P.No.8980 of 2021], dealt with the restrictions under freedoms granted under Article 19.
A Puducherry official of a national level political party has instituted the present public interest litigation, complaining of an order passed under Section 144 of the Code of Criminal Procedure, 1973 by the District Magistrate in Puducherry. Section 144 of the Criminal Procedure Code (CrPC) of 1973 authorises the Executive Magistrate of any state or territory to issue an order to prohibit the assembly of four or more people in an area. According to the law, every member of such ‘unlawful assembly’ can be booked for engaging in rioting. The petitioner points out that there is nothing in the relevant order which even remotely suggests any unrest or anything untoward or even the apprehension of anything unlawful for a clampdown to be imposed. The petitioner says that since this is a free country, the citizens can go about their usual chores as they choose and the election day, when they exercise their most basic democratic right, is no time to curb their right to move about freely or do other things as they choose. The petitioner says that it is inconceivable that throughout the entire Union Territory of Puducherry, small as it is, there is a situation that requires an order of the nature under Section 144 of the Code to be imposed.
The petitioner submits that while Assembly elections are being conducted in several other States, except in certain sensitive areas in some of the other States – and not even covering the entirety of the constituency in each case. The underlying insinuation of the petitioner is that in such a scenario, it is only the committed voter who will step out to vote as the ordinary voter may be led to believe that there is a possibility of trouble or violence and it may be better to not step out, even to vote. The Election Commission also clarifies that the prohibition is restricted to “unlawful assembly & movement, holding of public meetings, carrying of weapons, sticks, banners, placards etc., by any person … and … shouting of slogans and using of Loud Speakers and acting in any manner detrimental to public peace and tranquillity…” The Commission is quick to indicate that the prohibitory order does not apply to religious functions, marriages, funerals and the gathering of people inside polling booths for voting purpose.
The Court upon considering the aforesaid facts stated that; “It needs to be reiterated that the relevant order will be strictly restricted only to the prohibition of “Unlawful assembly & movement, holding of public meetings, carrying of weapons, sticks, banners, placards etc., by any person and … shouting of slogans and using of Loud Speakers and acting in any manner detrimental to public peace and tranquillity …” In a sense, it is unnecessary to issue an order prohibiting unlawful assembly, since such an assembly, by definition, is illegal. Common citizens must immediately be informed, by a further clarification that the Election Commission has agreed to issue in course of the day, that the expression “prohibit the unlawful assembly & movement” will not stand in the way of citizens going about their normal business and chores and even gathering for private functions.”