Lakhimpur Kheri has been cut off from the rest of India – at least for Congress politicians.
Late on Sunday night, a video showing Congress leader Priyanka Gandhi Vadra being arrested by the Uttar Pradesh Police while en route there to meet the families of those killed when a BJP leader's convoy ran over several protesting farmers, began to do the rounds.
By the morning, an army of police officers arrived at Samajwadi Party leader Akhilesh Yadav's house to stop him from travelling to Lakhimpur Kheri. Yadav was detained and placed under house arrest after staging a sit-in protest against this.
On Tuesday, the UP government denied permission to Rahul Gandhi, too, for his visit to Lakhimpur, pointing out that Section 144 was in force there.
Several other Congress leaders attempting to visit the area and meet the farmers have also been stopped by the Uttar Pradesh government. Chhattisgarh Chief Minister Bhupesh Baghel and Punjab Deputy Chief Minister SS Randhaw were not allowed to land in Lucknow. Punjab Chief Minister Charanjit Singh Channi was denied permission to land his helicopter in the area.
Navjot Singh Sidhu was detained by the Chandigarh Police (which come under the Chandigarh Union Territory government, not the governments of Punjab or Haryana) in Chandigarh where he was protesting the violence against the farmers outside the Punjab Governor's house.
A sweeping order has been passed under Section 144 of the Code of Criminal Procedure by UP authorities in the district, which they are using to deny entry to people of their choice.
Apart from Congress leaders – who the UP Police are now trying to stop from boarding flights in Delhi as well – the UP home secretary has written to Punjab's chief secretary saying nobody at all from Punjab should be allowed to travel to Lakhimpur Kheri. The internet has been cut off in the region as well.
But how is any of this legal? Can the UP government really stop political leaders from travelling to a place where there is no ongoing violence or security threat? Can such Section 144 orders really be passed to cut off a district from the rest of the country?
HOW ARE UP AUTHORITIES JUSTIFYING THE RESTRICTIONS?
The UP Police have said that they stopped Priyanka Gandhi Vadra because of the imposition of Section 144 in Lakhimpur Kheri.
She has subsequently been arrested under Section 151 of the Code of Criminal Procedure, on grounds that she was "going to commit a crime in future".
Section 144 of the CrPC allows a District Magistrate to impose restrictions in the form of prohibitory orders in a particular area, to address urgent cases of nuisance or apprehended danger.
Contrary to what many people think, a Section 144 CrPC order can be imposed even against a single person – it doesn't only apply when five or more people are gathered.
There is a public perception that it applies to an assembly of more than five persons, but this is based on how such prohibitory orders often ban 'unlawful assemblies', which under the IPC involve five or more persons. However the power under Section 144 is far wider.
It can be tailor-made even to keep a single person out, ban protests, prohibit public gatherings, and restrict access to certain areas – subject to certain rules, as explained below.
Section 151 of the CrPC, the other legal provision being cited by the UP Police, allows a policeman to arrest any person without a warrant, if they find out about a 'design to commit a cognizable offence' and arresting the person is the only way to stop the commission of the offence. A person can be kept in custody for 24 hours using this power.
This is not the first time that the UP Police have locked down an entire district and prevented people from travelling to an area where some controversy has taken place.
Similar restrictions were imposed in Hathras in September and October 2020, following the death of a Dalit woman who was allegedly gang-raped and murdered there. Priyanka as well as Rahul Gandhi were stopped by the UP Police from reaching the village, with the police citing prohibitory orders under Section 144. The restrictions were initially also used to prevent the press from reaching the village and reporting on the matter.
WHEN CAN PROHIBITORY ORDERS BE ISSUED UNDER SECTION 144?
Prohibitory orders under Section 144 can be imposed by a District Magistrate (or an executive magistrate empowered by the government for this purpose) if they think that this is needed to prevent:
An obstruction to anyone lawfully employed ; or
A danger to human life or health or safety; or
A disturbance of the public tranquility, or a riot, or an affray.
As specified in the text of Section 144, these prohibitory orders need to be passed in writing, and need to state the reasons why the magistrate believes there is a risk to public order.
The importance of the reasons and for these to be in writing was re-emphasised by the Supreme Court in the January 2020 Anuradha Bhasin judgment.
"The State is best placed to make an assessment of threat to public peace and tranquillity or law and order. However, the law requires them to state the material facts for invoking this power. This will enable judicial scrutiny and a verification of whether there are sufficient facts to justify the invocation of this power."Supreme Court
The judgment went on to lay down several principles for when the police are issuing orders under Section 144 of the CrPC. Some of the relevant ones here are as follows:
The power under Section 144 is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an 'emergency'.
The power under Section 144 cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
An order passed under Section 144 should state the material facts to enable judicial review of the same.The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind.
While exercising the power under Section 144, the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure.
UP POLICE'S RESTRICTIONS IN LAKHIMPUR KHERI SEEM DISPROPORTIONATE
It is difficult to see how the UP Police's prohibitions on entry into Lakhimpur Kheri, even if they are targeted restrictions on Congress and certain other Opposition politicians from visiting the district, would be legitimate within these principles.
There is currently no violence or riot going on in the area, so it can't be argued that there is an emergency. The blanket nature of the orders would clearly affect any attempts by the victims' families to express their grievances.
The orders are also clearly disproportionate, as there are far less intrusive measures which could be put in place to prevent any violence, from increased police presence to prohibitions of large gatherings in any one place.
Most importantly, it is entirely unclear what bona fide reasons there could be to stop political and constitutional leaders from visiting the area and meeting victims of the violence. There is no way in which it can be argued that all Congress politicians are all to be considered threats to public order – this would veer into clear autocratic territory.
And remember: the material has to actually be placed on record for judicial review, so this cannot be merely fudged later on.
It would be a rewriting of Indian democracy if certain areas can be made off-limits to political leaders from opposition parties just because the government doesn't want them there.
There is no legitimate precedent for such a move; indeed, when Narendra Modi was chief minister of Gujarat, he went to Mumbai in the days after the 26/11 attack and there were no restrictions on his political speeches there.
It is also unclear how the UP authorities are blocking politicians from moving when outside Lakhimpur Kheri. The Section 144 orders there cannot be stretched to Lucknow or, as they are now trying to do, Delhi. State-wide restrictions attract even more scrutiny, as the Supreme Court held in Anuradha Bhasin, and are more likely to be found disproportionate and illegal.
Moreover, the Section 144 orders have not been clearly published for the public, as the Supreme Court indicated was necessary for all state authorities.
SECTION 151 ARRESTS & INTERNET SHUTDOWN ALSO ON SHAKY FOOTING
The usage of Section 151 of the CrPC to arrest politicians is again extremely dubious. On what basis can the police claim that a politician is going to commit an offence merely by going to a place like Lakhimpur Kheri? Is there actual actionable intelligence with the UP Police, for instance, that Priyanka Gandhi Vadra was going to incite a riot there?
Or were they merely saying she would violate a Section 144 order (which is technically a criminal offence)? If this is the case, the lack of legitimacy for the Section 144 orders would render the use of Section 151 perverse as well.
On top of this, the UP Police has kept Priyanka Gandhi in custody for over 50 hours (and counting) now, without producing her before a magistrate, which violates Section 151 and the basic tenets of Indian criminal law.
There are even questions to be raised about the internet shutdown in the region.
In the Anuradha Bhasin judgment, the apex court clarified that such orders also have to satisfy the proportionality standard, and fall within the reasonable restrictions specified in Articles 19(2) and 19(6) of the Constitution, since the internet is a key platform for freedom of speech and profession.
Such shutdowns have to also be for a temporary period and must be reviewed within a reasonable time. Not only does the Lakhimpur Kheri shutdown have no timeframe, it has now been extended to nearby Sitapur to prevent Priyanka Gandhi Vadra and other Congress politicians detained there from posting messages to the internet.
For all these reasons, it is arguable that the UP authorities are ignoring the law and imposing their own whims in the way they are restricting access to the site of the tragic murders.