Point of Law: Election Commission of India. The relevant section, that covers the last 48 hours before polling begins, contemplates issuance of orders under Section 144 of the Code; but that does not imply that such a prohibitory order may be passed as a routine exercise or invariably in respect of all constituencies prior to any election thereat.

JUDGMENT :-

(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari to call for the records of the third respondent herein in her proceedings in Order No.1203/DM/D1/GEPLA/2021, dated 22.3.2021 and quash the same.)

Sanjib Banerjee, CJ.

1. 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.

2. The relevant order dated March 22, 2021 was, according to the petitioner, made public only on April 1, 2021 and is to come into effect from 7 pm today. Indeed, it is already around the time that the order comes into effect.

3. 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.

4. 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 -has Section 144 of the Code been imposed. The petitioner insists that the sine qua non for passing such an order, restraining the usual freedom of movement, is upon the apprehension of any mischief or anything untoward or an emergency; and, without the satisfaction of the Magistrate being expressed in such regard, the power to invoke the jurisdiction does not arise.

5. A further ground urged by the petitioner is that there was no tearing hurry for an order to be passed on March 22, 2021 without giving any notice in accordance with Section 134 of the Code and the entire object indicates a kind of premeditated mind to instill fear in the minds of the citizens. 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.

6. The Election Commission says that Section 144 of the Code has been imposed throughout Puducherry in every general election since 2014. 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 tranquility...”The Commission is quick to indicate that the prohibitory order does not apply to religious functions, marriages, funerals and the gathering of people insidepolling booths for voting purpose.

7. The Union Territory refers to the “Standard Operating Procedure For Last 72 Hours Till Counting” published in December, 2016 by the Election Commission of India. The relevant section, that covers the last 48 hours before polling begins, contemplates issuance of orders under Section 144 of the Code; but that does not imply that such a prohibitory order may be passed as a routine exercise or invariably in respect of all constituencies prior to any election thereat.

8. Thankfully, this country allows expansive freedom to its citizens and, as the Constitution provides, there cannot be any authoritarian regime possible in the country nor any regimentation of the citizens or their lives