Election time prohibitory orders are seldom questioned, even if they amount to blanket restrictions that curb all gatherings. The clamping of prohibitory orders to prevent unauthorised meetings and processions in the run-up to the ongoing general election has been challenged in the Supreme Court of India by activists Aruna Roy and Nikhil Dey. While it is quite normal for political parties to approach the police or the executive magistrate concerned for permission to hold rallies, public meetings and road shows, it appears that civil society organisations and groups find that their applications are met with no response at all. Citing examples of such blanket orders, issued under Section 144 of the CrPC, from Rajasthan, Gujarat and Delhi, the petitioners have highlighted the fact that the practice appears to prevail in other States too. It is not difficult to guess that the police and revenue officers vested with magisterial powers do not want any disturbance to public order in the midst of election campaigns, but a legitimate question arises whether the passing of blanket prohibitory orders and studied inaction on applications for any gathering are constitutionally valid. In the petitioners’ case, they were unable to hold any public programmes aimed at creating awareness among voters about the election, the candidates and the disclosures they have made in their affidavits and nomination papers.
There are several Court judgments that limit the power under Section 144, which is essentially a power to direct anyone to act or refrain from acting in a particular way. Orders under these provisions typically restrict any assembly of people beyond a small number and require those seeking to hold any public activity to apply for permission. It is difficult to disagree with the argument that such restrictions ought not to apply to activities aimed at educating voters, as the ultimate consequence is that it limits public participation in the democratic process. The Bench that heard the submissions rightly raised the question how such blanket orders could be passed. Its interim order directs executive magistrates to decide applications for public meetings and yatras within three days. The case raises a legitimate concern whether an election, by itself, can provide sufficient reason for blanket restrictions on public participation and make it dependent on discretionary powers. It is true that the authorities can cite the fact that they are effectively under the superintendence and control of the Election Commission of India (ECI) during elections, but it also gives rise to yet another question whether the election body favours such a clampdown and whether statutory powers can be shifted from the designated authority to the ECI.
