HEAVY rainfall, political protests, and traffic control. What do all these things have in common? On the face of it, it seems like not a lot; but if you are living in Pakistan and keep up with the news, you can make an educated guess that the answer is: an imposition of Section 144 of the CrPc.

An oft-wielded tool of the state, Section 144 restricts citizens from acting or conducting themselves in any way that is likely to result in, among other things, annoyance. This explanation of the provision might sound ambiguous or too widely worded and that would not be wrong because Section 144 is exactly that vague and indefinite. Section 144 is a classic example of overbreadth and over-regulation. It has been used to restrict assembly of both political opposition and livestock.

The CrPc was drafted under an empire that was of the view that the indigenous laws of the subcontinent were inept and uncertain and could not govern the unruly and uneducated local populace. Instead, it wanted to introduce certainty by codifying and introducing English law principles. Ironically, the wish to create certainty through a criminal code resulted in an unclear Section 144.

Despite the obviously paternalistic and racist origins of the CrPc, the state continues to use some of its most problematic provisions, like Section 144, against our own people. It seems like an indelible mark has been left by our colonial masters on our criminal procedure code, one the state refuses to change due to political expediency and a patronising legislative attitude towards its citizens.

Section 144 empowers different personnel (depending on the provincial amendment) to pre-emptively restrict any person from a certain act if such direction is likely/tends to prevent `annoyance, obstruction or injury ... or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot or an affray`. The relevant personnel may vary depending on the province; however, regardless of who the authorised person is, the power given under Section 144 is broadly worded and confers wide powers to the relevant person, allowing wide latitude in terms of the pretexts under which such a power can be exercised. The provision does not require that there be actual disturbance or injury but rather it may be employed as a preventative measure before any such act occurs it is an anticipatory power that unduly restricts constitutionally guaranteed rights.

This is not to say that the curtailment of certain actions, like groups assemblingHEAVY rainfall, political protests, and traffic control. What do all these things have in common? On the face of it, it seems like not a lot; but if you are living in Pakistan and keep up with the news, you can make an educated guess that the answer is: an imposition of Section 144 of the CrPc.

An oft-wielded tool of the state, Section 144 restricts citizens from acting or conducting themselves in any way that is likely to result in, among other things, annoyance. This explanation of the provision might sound ambiguous or too widely worded and that would not be wrong because Section 144 is exactly that vague and indefinite. Section 144 is a classic example of overbreadth and over-regulation. It has been used to restrict assembly of both political opposition and livestock.

The CrPc was drafted under an empire that was of the view that the indigenous laws of the subcontinent were inept and uncertain and could not govern the unruly and uneducated local populace. Instead, it wanted to introduce certainty by codifying and introducing English law principles. Ironically, the wish to create certainty through a criminal code resulted in an unclear Section 144.

Despite the obviously paternalistic and racist origins of the CrPc, the state continues to use some of its most problematic provisions, like Section 144, against our own people. It seems like an indelible mark has been left by our colonial masters on our criminal procedure code, one the state refuses to change due to political expediency and a patronising legislative attitude towards its citizens.

Section 144 empowers different personnel (depending on the provincial amendment) to pre-emptively restrict any person from a certain act if such direction is likely/tends to prevent `annoyance, obstruction or injury ... or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot or an affray`. The relevant personnel may vary depending on the province; however, regardless of who the authorised person is, the power given under Section 144 is broadly worded and confers wide powers to the relevant person, allowing wide latitude in terms of the pretexts under which such a power can be exercised. The provision does not require that there be actual disturbance or injury but rather it may be employed as a preventative measure before any such act occurs it is an anticipatory power that unduly restricts constitutionally guaranteed rights.

This is not to say that the curtailment of certain actions, like groups assembling(freedom of assembly Article 16) or movement of people (freedom of movement Article 15) automatically make Section 144 unconstitutional. These are not non-derogable rights. Rather it is the ambiguity and indefinite contours of Section 144 that make this provision unconstitutional. Its misuse is not a hypothetical possibility; rather its overbreadth can be seen when it is used for preventing political rallies and stifling dissenting voices in Punjab under the disguise of public order. It is neither narrow nor clear in its language and its heavy-handed use can be witnessed when the provision is used to control traffic in Sindh. It is not that discretion cannot be exercised by officials at all, but rather such discretion cannot be unfettered and curtailment of rights cannot be unreasonable.

The language of Section 144 facilitates the unbridled exercise of power and allows for it to be used unreasonably and disproportionately. Imposing restriction on movement and assembly for traffic con-trol or imposing timings for marriage halls is both disproportionate and unreasonable.

A narrower exercise of power can yield the same result when public safety is threatened with-out there being a disproportionate restriction on the fundamental rights of the gener al population espe cially when special laws exist to deal with traffic, livestock/ animal control, natural disasters, etc. The apex court has, in various judgements, laid down that the curtailment of fundamental rights needs to be justified on the touchstone of the principle of proportionality, and the limitation ought to be for proper rational purpose and necessary.

Section 144 is neither proportional nor rational.

The unchecked power under Section 144 violates the principle of the rule of law. Instead, it facilitates the `rule of men` by conferring unbridled power on the executive or on government officials who use it with impunity.

A colonising government may use such a draconian power to snuff out the voices of indigenous people, but for a free democratic state to use such measures seems antithetical to the democratic ideals it stands for. Despite freeing ourselves from the colonial yoke, we refuse to free ourselves from a paternalistic colonial legislative legacy. • The wnter is a lawyer based in Lahore.