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ecent judgment by the Sindh High Court, wherein it was explained that, ‘When
the State wishes to deny its citizens the enjoyment of Articles 16 and 17(2) of
the Constitution, three things must be shown: Firstly, that the restriction in
question has been imposed by law, thus, it is entirely irrelevant and insufficient
for the executive to assume for itself a general power in this regard simply for
the reasons of, for example, administrative expediency or convenience and
something expressly stated in a statutory provision must be shown to exist;
secondly, the court must be satisfied that the restriction so imposed by law is
reasonable; and thirdly, the restriction must be relatable to the matter specifically
provided for in relation to the fundamental right in question’ (2012 CLC 714
SHC).
Under section 144 of the Code of Criminal Procedure (CrPC) a district
government was empowered to make temporary orders in emergency cases
of nuisance or apprehended danger, where immediate prevention or a speedy
remedy was desirable. Powers under this section could be exercised where
the authority considered its direction likely to prevent or intended to prevent
obstruction, annoyance, injury to any person lawfully employed, danger to
human life, health or safety, or a disturbance to public tranquility, or a riot, or
an affray (Section 144). The power was, however, extraordinary in nature in
view of the fact that it suspended the lawful and fundamental rights of a
citizen.
Some instances where a ban was imposed under section 144 are provided
below:
♦ In January, Race Course police registered a case against 35 members
of the Lahore Chamber of Commerce and Industry (LCCI) including its
president for violating a ban imposed under section 144 on rallies on the Mall.
The protest was arranged by the LCCI against the closure of gas supply to
industries.
♦ In March, Civil Lines police registered a case against 600 PTI workers
for holding a rally on the Mall in violation of section 144 restrictions.
♦ In April, the government of Sindh banned rallies and processions for
10 days in five districts of Sindh under section 144 during the hearing of a
case of alleged forced conversion of Hindu girls to Islam.
♦ Teachers who violated section 144 on the Mall in May by demanding
a better pay package were arrested by the police
♦ Sindh government imposed Section 144 curbs in September, banning
processions, rallies and organising public meetings within the limits of Karachi
Division for a period of three days, in view of the violence committed by
miscreants during recent rallies in which lives were lost and properties
damaged.
Recommendations
1. The state’s consistent failure to ensure adequate security for religious
139
State of Human Rights in 2012