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In a recent incident recorded on video, a young IAS officer Ayush Sinha posted as the sub-divisional magistrate (SDM) of Karnal is found ordering the police to “break the heads” of any farmer protesting against the farm laws who crossed a certain barricade. The farmers wanted to reach the venue of a BJP meeting, attended by the Haryana chief minister Manohar Lal Khattar. In the police action that followed, about 10 people were injured. For many of us, it rekindled the painful memory of the colonial era when Lala Lajpat Rai was martyred following a lathi-charge in which James Scott, the then superintendednt of police (SP) of Lahore had ‘broken his head’.
Puerile attempt to defend the indefensible
Most regrettably, the chief minister of Haryana sought to make a contrived defence of the SDM, “Although the officer’s choice of words was not correct, strictness had to be maintained to ensure law and order situation there was kept under check.” The defence put up by the district magistrate of Karnal, one Nishant Yadav, was even more ridiculous, “He used some words in heat of the moment, he shouldn’t have. But his intention was not wrong. (sic)”
Both of them betrayed a singular ignorance of law pertaining to public protests and the police response to them. The chief minister spoke of protests, road blockades, and traffic jams as if the country was witnessing them for the very first time in history. He claimed that he was receiving calls from people asking to deal with farmers protesting against the laws in a strict manner, but the administration was still exercising restraint. That was indeed remarkable. This means, in his view, modalities of law and order management in the country ought to be decided by what some people want and not what the law dictates.
The DM invoking ‘heat of the moment’ is as ridiculous as it could get. The SDM was quite composed when he ordered the “breaking of heads” with forceful, deliberate hits. In fact, he got it repeatedly endorsed by a subservient police posse in proper filmi style of faujis. Moreover, what would they do if members of the public were to invoke the ‘heat of the moment’ as they broke the head of the SDM or some cop or hit them in the testicles, leading to vasovagal shock and possibly death? Inexperience and pressure of duty are no excuse – if someone is given so much power under the law, he is answerable for his actions.
In the following section, we will examine the legal issues pertaining to the use of force by the police on agitators as well as the sociological and psychological reasons that make officers indulge in such obnoxious behaviour.
Grey areas in the law regarding public protests and police response
The democratic right to peaceful protests has been acknowledged in a series of judgments like Babulal Parate (1961); Baldev Singh Gandhi (2002); Ramlila Maidan (2012); Anita Thakur (2016); Mazdoor Kisan Shakti Sanghatan (2018); and Bimal Gurung (2018). How the protests may be carried out was discussed in Amit Sahni (2020) in connection with the Shaheenbagh protests.
Beyond this expression of a laudable sentiment, the law is shrouded in a grey mist. In the past 160 years, in one of the greatest frauds committed upon the Indian people, governments have deliberately refrained from clarifying critical aspects of the law so that they could always interpret them in their favour as the situation demanded and ride roughshod over the people.
For example, who will determine on the ground what is a ‘peaceful’ protest and what is a ‘violent’ protest? What is the exact legal definition of a violent protest? What actions by a mob qualify to be called violent and what are peaceful? Who will determine what is ‘reasonable restriction in the interest of public order’ which the state seeks to impose and how? What could empower the magistrates and their wisdom to weigh things on a Golden Scale?
There are no clear answers anywhere. Unfortunately, the judgments in Himat Lal K. Shah (1973); Railway Board (1969); Madiga Reservation Porata Samithi (1999); and Mechineni Kishan Rao (2002) have not explained how are the people supposed to know whether the restrictions imposed by the police are reasonable or whimsical. If they are to blindly accept all the orders of the public servants, even if they are unreasonable, how will they ever exercise their fundamental rights? Many contentious issues regarding processions have been left unanswered even in Acharya Jagdishwarananda Avadhuta (2004) that prohibited weapons in processions.
A violent mob could indulge in a wide variety of acts:
- Attack police or some other group of people with various types of weapons and projectiles.
- Damage public property or private property.
- Loot public property or private property.
- Assault members of public, molest them or rape them (for example, Murthal gang rapes during the Jat Reservation agitation, Haryana in February 2016).
Section 129 (dispersal of assembly by use of civil force) of the Code of Criminal Procedure (CrPC) empowers the police to use even lethal force to disperse an unlawful assembly. Now what is an unlawful assembly? Section 141 (unlawful assembly) IPC, being a classic relic of the spirit of oppression that had characterised the colonial era, provides a long list of their supposed intentions, which would label them an unlawful assembly. The modern Indian state continues to cling to such colonial powers with a maniacal doggedness. Under this law, five people or more could be accused of overawing, by a show of criminal force, the central or any state government or parliament or the legislature of any state! Imagine five people overawing the parliament of a nation of 140 crores!
How exactly the legal powers vested in Section 129 CrPC are to be used was discussed in the case of Karam Singh (1979). Still, the legal issues that remain unanswered are:
- Where exactly is the Lakshman Rekha? In other words, where is the line after which the police will be entitled to use lethal force?
- Should they wait until the mob comes to a certain distance from them?
- Should they wait till some (minimum how many?) officials receive certain injuries? If so, what injuries? Which law or judgment mandates such a view regarding the number of officials injured or their injuries?
Where it is prescribed in Section 129 CrPC or in any judgment as to what sort of force is to be used in which situation? Should fire be opened when the agitators are damaging rail tracks, but not if they are burning some police vehicle or private vehicles? Should fire be opened when protesters are seen raping or molesting women or should the police exercise restraint in the larger political interests of the ruling party? According to the police’s own admission, during the Azad Maidan riots of August 2012, at least five women police personnel were molested by the mob. The police remained a mute spectator and did nothing.
Or, should fire be opened even on those protesters also that are not posing any immediate threat? Exactly this thing had happened in the police firing in Tuticorin in May 2018 during a protest against proposed expansion of a copper smelter plant run by Sterlite Corporation in Thoothukudi town. Thirteen people were killed and 102 injured. There were photographs of policemen standing on top of medium vehicles and firing, clearly establishing that their targets were at least a couple of hundreds of yards away. Still, shockingly, for the death of 13 persons, as the New Indian Express reported in March 2021, the CBI had filed chargesheet against just one inspector of police but 71 protesters!
The much-touted words like ‘minimum force’ and ‘maximum restraint’ do not find any place in judicial pronouncements even as they remain lofty moral principles and find expression in UN ‘Basic Principles for the Use of Force and Firearms etc. In fact, in cases like Pancham Lal (1977), Akhilesh Prasad (1981), D. N. Srivastava (1982) and Manoj Sharma (W.P.(Crl.) No. 1014-16/2006), etc., it was held that the officer on the spot would be the best judge of the degree of force which would be required to control a particular situation.
Still, it must be kept in mind that the use of lethal force is permitted only by shooting—not by a barbaric ‘breaking of heads’. Police can’t use swords, for example, even if the rioters have swords. Lathis have to be used according to prescribed lathi drill, which specifically prohibits hitting the head. Even Tasers are not allowed under the Arms Rules.
Citizens of this country should not forget that it was because of such ‘deliberately left grey areas’ with the obvious intention of allowing upper hand to the government that the Hunter Committee, which had three eminent Indian jurists also in it, could hold Reginald Dyer guilty of the grave error of judgment only and he could not be prosecuted for a crime. It is disclosed in the Hansard (the traditional name of the transcripts of parliamentary debates in Britain) that all that he suffered was that he was made to resign!
Sociological and psychological reasons for highhanded behaviour
The fundamental sociological reason for making officials prone to such behaviour is the unnaturally excessive, feudal-type social prestige associated with government jobs, particularly in the law enforcement: police, magistracy, IAS/IPS, etc. Prevailing societal notions imbue them with almost supernatural wisdom that could do no wrong. The colonial legacy of civil service in selecting ‘one-exam wonders’ is fundamentally flawed in that it usually catapults undeserving people into positions of immense power. That actually makes them believe that they are there to ‘rule’ over people and not ‘serve’ them.
Historically, in India, the state has existed for the ruler, not for the ruled. All the organs of the state (the armed forces, police, other government officials) existed essentially to oppress their own people first; that they could, at times, protect them from some external threat or depredations of criminals was only incidental. This identification with the rulers bred a very characteristic pattern of obnoxious behaviour in them; uncontrolled, impertinent, aggressive, rude, abusive, arrogant, barbarous, and brutish.
This popular feudal imagery of government officials and the power, which the Indian laws have imbued them with, ‘derange’ them. As Avay Shukla, himself a retired IAS officer points out, “Most IAS officers have very high levels of schadenfreude (pleasure derived by someone from another person’s misfortune), and love nothing better than to see the proletariat squirm.”
Like feudal lords of yore, they too tend to look down upon the poor people as some sort of vermin that could be squished brutally anytime. Speaking of the popular bias against farmers, Rohit Kumar cites agricultural economist Devinder Sharma, “You should see how many people on my Twitter feed are condoning the actions of the police and saying the farmers are gundas and that they deserve this!”
Atrocities by the minions of the state are actually atrocities by the state. The state is the mind; its servants are the muscle. India has always suffered from a problem that the loyalty of the officials has been to the rulers and not to the people. Bheeshma was perhaps the greatest warrior of his era. During the shameful episode of the disrobing of Draupadi, had he even risen from his seat, the entire Kaurav clan would have trembled. Yet, his ‘sin’ was that he placed his dharma as a servant before his dharma as a human being.
The officials have completely forgotten that their loyalty must be to the nation, the people and the constitution, not to the regime of the day. A democratic country like ours cannot afford to leave matters of life and death to the discretion of magistrates and cops brimming with bhakti of the regime and eagerness to please the political masters.
Dr. N. C. Asthana is a retired IPS officer and a former DGP of Kerala. Of his 49 books, 14 are on civil rights, social justice, law, and police including the latest State Persecution of Minorities and Underprivileged in India. He tweets @NcAsthana.