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INDIAN EXPRESS EDITORIALS AND EXPLAINED 10TH JANUARY 2020

ISSUE: SECTION 144

WHY IN NEWS?

In its order on Jammu and Kashmir on Friday (January 10), the Supreme Court made the following points with regard to the use of Section 144 of the Code of Criminal Procedure (CrPC), 1973.

• Sec 144 cannot be used to suppress the legitimate expression of opinion or grievance, or the exercise of democratic rights

• When Sec 144 is imposed for reasons of apprehended danger, that danger must be an “emergency”.

• The imposition of Sec 144 must strike a balance between the rights of the individual and the concerns of the state.

• Powers under Sec 144 should be exercised in a reasonable and bona fide manner, and the order must state material facts in order to enable judicial review.

What is Section 144?

Section 144 CrPC, a law retained from the colonial era, empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate specially empowered by the state government in this behalf to issue orders to prevent and address urgent cases of apprehended danger or nuisance.

The magistrate has to pass a written order which may be directed against a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.

In emergency cases, the magistrate can pass these orders without prior notice to the individual against whom the order is directed.

What powers does the administration have under the provision?

The magistrate can direct any person to abstain from a certain act or to take a certain order with respect to certain property in his possession or under his management.

This usually includes restrictions on movement, carrying arms and from assembling unlawfully. It is generally believed that assembly of three or more people is prohibited under Section 144.

However, it can be used to restrict even a single individual. Such an order is passed when the magistrate considers that it is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.

However, no order passed under Section 144 can remain in force for more than two months from the date of the order, unless the state government considers it necessary.

Even then, the total period cannot extend to more than six months.

Why is the use of power under Section 144 criticised so often?

The criticism is that it is too broad and the words of the section are wide enough to give absolute power to a magistrate that may be exercised unjustifiably.

The immediate remedy against such an order is a revision application to the magistrate himself. An aggrieved individual can approach the High Court by filing a writ petition if his fundamental rights are at stake. However, fears exist that before the High Court intervenes, the rights could already have been infringed.

Does Section 144 provide for communications blockades too?

The rules for suspending telecommunication services, which include voice, mobile internet, SMS, landline, fixed broadband, etc, are the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.

These Rules derive their powers from the Indian Telegraph Act of 1885, Section 5(2) of which talks about interception of messages in the “interests of the sovereignty and integrity of India”.

However, shutdowns in India are not always under the rules laid down, which come with safeguards and procedures.

Section 144 CrPC has often been used to clamp down on telecommunication services and order Internet shutdowns.

In Sambhal, UP, Internet services were suspended by the District Magistrate under Section 144 recently.

 

ISSUE: HOW POLICE IGNORES RIGHTS BODIES?

WHY IN NEWS?

In a country like India, access to the criminal justice system is often determined by how much money, power, and influence the complainant has, suggests the latest crime data released by the National Crime Records Bureau (NCRB). Who the complainant is able to approach to register her complaint, therefore, becomes important.

According to the 2018 report, a person has the best chance of getting a complaint registered as an FIR if she is able to go to the police station with an order from a court. Ninety-nine per cent of complaints that are routed through a court are registered as FIRs, the data show. As many as 1,09,392 of the 1,10,338 complaints that were forwarded by courts to police were registered as FIRs in 2018.

According to the data, a written complaint sent to the officer in charge of a police station has a 72% chances of being converted into an FIR. In 2018, of the 37,46,600 complaints sent to SHOs, 2,68,8182 were converted into FIRs.

In a country like India, access to the criminal justice system is often determined by how much money, power, and influence the complainant has, suggests the latest crime data released by the National Crime Records Bureau (NCRB). Who the complainant is able to approach to register her complaint, therefore, becomes important.

According to the 2018 report, a person has the best chance of getting a complaint registered as an FIR if she is able to go to the police station with an order from a court. Ninety-nine per cent of complaints that are routed through a court are registered as FIRs, the data show. As many as 1,09,392 of the 1,10,338 complaints that were forwarded by courts to police were registered as FIRs in 2018.

According to the data, a written complaint sent to the officer in charge of a police station has a 72% chances of being converted into an FIR. In 2018, of the 37,46,600 complaints sent to SHOs, 2,68,8182 were converted into FIRs.

ISSUE: SIGNIFICANCE OF THE POST OF CHIEF OF DEFENSE STAFF

First mooted in 2001, by a Group of Ministers (GoM), in the aftermath of the Kargil conflict, successive administrations — NDA and UPA — have baulked at the creation of CDS.

The Modi government, having jettisoned the doctrine of “strategic restraint”, in its first term, deserves full credit for initiating a long-overdue process of national security reform, whose first “green shoots” are the CDS and DMA.

HOW IT WILL HELP FORCES?

With creation of the DMA, headed by CDS, the military will, for the first time, be admitted into the central edifice of the GoI and become a participant in policy-making. Designation of the CDS as Principal Military Adviser (PMA) to RM will enable unhindered access to MoD, accelerating the process of decision-making and accord of approvals. T

Second, a key military body, the Chiefs of Staff Committee (COSC), has, for decades, been dysfunctional because its chairmanship is held by one of the three chiefs on a part-time, rotational basis. Historically, the chairman COSC has lacked the authority as well as capacity and inclination to tackle tri-service issues of substance.

With the CDS now being designated “permanent chairman COSC”, he will be able to devote undivided attention to the administration of tri-service organisations and take measures to engender “jointness” amongst three services. In the approaching era of dwindling defence budgets, a crucial function of CDS will be “prioritising” the capital acquisition proposals (or “wish-lists”) of individual services. He will have to ensure that the “defence rupee” is spent judiciously; on warfare-capabilities considered vital for national military power, and not on pandering to service demands.

 

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