April 13, 2024
By Alefia T Hussain
When the governments in Punjab decide that a political party must not demonstrate its political strength in public spaces, women must not walk out into the street to demand freedom and security, contain the spread of a disease, kill the joy of kite flying, direct bike riders to wear helmet, it wields its authoritative baton and imposes the infamous Section 144. It is the power that allows authorities to regulate perceived nuisances for temporary periods.
But Section 144 has grown to be a monster – a convenient and limitless tool used by the state authorities to control peoples’ every day lives.
Section 144 of the Criminal Procedure Code, 1898 grants the provincial and district authorities unchecked power to issue directions to persons to either abstain from certain conduct or to direct persons to engage in certain actions for specific periods of time. It allows them to disallow gatherings of people at the pretext of public order. When excessively used, the direct casualty is civil liberties.
Alongside MPO, ATA, PANAA, AACPR, and OSA, Section 144 equips the provincial authorities to check assemblies of five or more people for specified periods of time.
Disobedience to this order may result in punitive measures.
Critics are certain that this colonial era law has become irrelevant in modern times. Its language and procedures are out of step with evolving identities, gender roles, and advancements in technology. To accommodate the demands of the present era, Section 144 necessitates a reset.
The application of Section 144 in contemporary Pakistan overlaps with constitutional guarantees, “particularly the right to assembly enshrined in Articles 8 to 28,” says former senator Farhatullah Babar.
Section 144 in action
The frequency of Section 144 impositions in Punjab has become so common that it’s challenging to track when it’s enforced and lifted. It may come as a surprise to learn that Lahore these days is not under Section 144, and people are free to take to the streets, openly express their concerns and demands.
Under the caretaker setup of Mohsin Naqvi, Section 144 was imposed liberally in Punjab in 2023. To “prevent disturbance of public peace and tranquility”, Section 144 was imposed in Punjab on January 22, 2024. It was meant to be in place till Feb 12 – to specifically check the carrying, display and firing of weapons, including licensed arms, ahead of the Feb 8 general elections.
Justifying the imposition of the section, Punjab Home Secretary Shakeel Ahmad, reportedly said, “Section 144 was imposed following the threats to the law and order and public peace in Punjab during the general elections”.
It was obviously intended to prohibit political gatherings, rallies, and corner meetings organised by contesting candidates and political parties across the province. Appeals from political parties for not restricting peoples’ right to assembly before the general elections went unheeded. The Pakistan Tehreek-e-Insaf’s (PTI) loud and emphatic complaints regarding the government’s failure to provide them a ‘level-playing field’ were also disregarded.
Further, in 2023, the section was enforced to stop the PTI from rallying on the streets when it launched the ‘jail bharo tehreek’ in February, to contain the Aurat March on International Women’s Day on March 8, after the May 9 attacks on state properties post-Imran Khan arrest in Islamabad, during the 10 days of Muharrum in July and to control smog in November.
The authorities in Punjab claimed to invoke Section 144 to forestall violence in the streets of the province – often at the cost of curtailing public rights.
Changes in Section 144
Pakistan inherited the British era Section 144 after Independence. The new country largely retained its original character, with slight amendment over time.
Recently, in Punjab, amendments were proposed through an ordinance in May 2023, transferring the authority to impose Section 144 to District Commissioners (DCs) and Home Secretaries. This ordinance underwent the typical 30-day cycle of issuance and re-issuance, with the latest reissuance reported in August 2023.
Back in the colonial times, Section 144 granted authorities the power to impose a form of mini-martial law in areas where public nuisance was feared. Our own babus inherited such apprehensions from that era through this section. They are as proficient in wielding authoritarian language and action as their predecessors. “When they blocked Internet and social media platforms, Feb 17 on, it was the culmination of this very conditioning,” says Babar.
He adds that while historically assembly meant physical gatherings, the advent of the Internet has expanded its definition to include online assemblies. “The state is now trying to regulate the virtual sphere in the same manner as the physical space”. To protect the cyberspace it has become all the more important to rethink and revise this law.
The case for repeal
Farhatullah Babar believes that urgent changes to Section 144 are necessary, stating, “At present, the section is granting a free-for-all authority to the administration”.
He says, “Section 144 must be entirely repealed, as it grants discretionary power to provincial governments. It must be replaced with a section that stands in consonance with Article 16 of the constitution, which guarantees the freedom of assembly to the people.”
Explaining further, he says, it must delineate reasonable conditions under which assemblies cannot be allowed; specify when force might be used to restrict disruptive gatherings; explain how to use force, including announcements, baton charges, rubber bullets, and circumstances for firing live ammunition – “It must necessitate thorough training of law enforcement authorities”.
On March 8, 2023, while responding to the ban imposed on assemblies, across the district of Lahore by the home ministry, Harindrini Corea, regional researcher on the right to protest at Amnesty International, said the use of a draconian colonial-era law, “is a stark failure of the Pakistani authorities to respect and uphold the rights to freedom of expression and peaceful assembly”.
It further noted that the blanket ban on assembly is negate Pakistan’s obligations to recognize, respect and facilitate the right to freedom of peaceful assembly as a state party to the International Covenant on Civil and Political Rights – “Section 144 should never be used to unduly restrict the right to freedom of peaceful assembly, and it needs to be repealed”.
The Human Rights Commission of Pakistan in a study, titled ‘Freedom of peaceful assembly in Pakistan’, reviewed 858 assemblies from 2010 to 2020 and recommended that Section 144 of the CrPC should be repealed in full, as it grants excessively wide discretionary powers to the provincial governments and to the district administration of an area to impose wholesale bans on peaceful assemblies. “Such powers constitute a wholly disproportionate restriction on the right to freedom of peaceful assembly and open up a dangerous avenue for politically motivated decisions to be imposed under the garb of necessity,” it stated.
As we reflect on the legacy of Section 144, it is crucial to recognize that the path to a more democratic and rights-respecting society lies in embracing legal reforms that empower citizens, protect their freedoms, and uphold the principles of justice and equality. The time has come for Punjab, and indeed all of Pakistan, to revisit this archaic law and embrace a future where the right to assemble is not just a constitutional promise but a lived reality.