An unarmed, peaceful protest procession in the land of the “salt satyagraha”, fast-unto-death and “do or die” is no jural anathema
– Justice K.V. Krishna Iyer
The term ‘lathi charge’ though not specifically defined in the Indian Penal Code, Evidence Act, Criminal Procedure Code (CrPC) or the Police Act, appears to be an essential item in every policeman’s tool kit these days. While lathi charge or baton charge is a British era method for crowd control, in independent India it was usually reserved for dispersing violent mobs and preventing riots. However, in recent times, the lathi has been used to crush the pen and to crush student protests. Since 2014, many of India’s leading central universities such as Jawaharlal Nehru University (JNU), Banaras Hindu University (BHU), Jadavpur University, Osmania University and more recently, Aligarh Muslim University, have witnessed organised protests for external as well as internal reasons.
Constitutional guarantee of the right to protest peacefully
The Constitution of India protects the fundamental right of citizens, including students to voice their dissent, air their grievances and demonstrate peacefully subject to reasonable restrictions. Article 19(1)(a) allows for the ‘freedom of speech and expression’, therefore, raising non-derogatory slogans peacefully is permitted. Article 19(1)(b) guarantees to all the citizens the right to assemble peacefully and without arms while Article 19(1)(d) confers the right to move freely, taking out peaceful protest marches cannot be denied on account of this provision. The significance of including the right to peacefully protest under Part III of the constitution should not be underplayed, the constitutional framers recognised the role organised and non-violent protests had played in the independence struggle and therefore made it a justiciable right rather than non-justiciable directive principle of the state or a constitutional right. Nevertheless, these fundamental rights are subject to reasonable restrictions, namely sovereignty and integrity of India as well as public order.
The police too is empowered with significantly wide ranging statutory powers to ensure that protests remain peaceful. The provisions of the Indian Penal Code such as Section 141 defines “unlawful assembly” as an assembly of five or more persons whose common object is to overawe the central or state government by use of criminal force, to resist the execution of any law or legal process, to commit criminal trespass, to obtain possession of any property or deprive a person of enjoyment of a right or to compel a person by criminal force to do something which is he is not legally bound to do or to omit to do what he is legally bound to do.
While Section 268 defines “public nuisance”, Chapter X of the Criminal Procedure Code deals with”maintenance of public order and tranquillity”. In particular, Section 129 provides for the dispersal of assembly by use of civil force, Section 130 allows use of armed forces to disperse an unlawful assembly, Section 143 empowers an executive magistrate to prevent the continuance or repetition of public nuisance, Section 144 allows the issuance of directions to the public to abstain from certain acts or take certain order with respect to certain property in his possession or under his management.
These statutory provisions act as restrictions on the fundamental right to speech and expression, to assemble without arms and movement so as to ensure that protests, dharnas, demonstrations remain peaceful and do not become “unlawful”. The question that arises is what ensures that these restrictions are ‘reasonable’? Whether the police has carte blanche under these provisions? The answer is in the negative. These provisions are not absolute either, the powers therein are not without limitations. Their reasonableness is established by reading the provisions carefully and in totality.
In Karam Singh v. Hardayal Singh (1979 SCC OnLine P&H 180), the Hon’ble Punjab & Haryana High Court held that three prerequisites must be satisfied before a Magistrate can order use of force to disperse a crowd:
First, there should be an unlawful assembly with the object of committing violence or an assembly of five or more persons likely to cause a disturbance of the public peace.
Second, an Executive Magistrate should order the assembly to disperse.
Third, in spite of such orders, the people do not move away.
Unlawful assembly?
All of the above-mentioned powers of the police come into play if an assembly is “unlawful” within the meaning of Section 141 of IPC. As Prof Faizan Mustafa explains in The Wire “The essence of the offence is the common object of the persons forming the assembly.” In the case of the recent student protest at AMU, “the common object” of the assembly i.e asking the police to register an FIR and arrest the trespassers does not fall within any of the five kinds of common objects which convert an assembly into an unlawful assembly as prescribed under Section 141 IPC. The power of the police to invoke Sections 129 and 130 CrPC stands on a weak footing if the assembly was not unlawful. Nevertheless, for argument’s sake, let us assume that there was an unlawful assembly.
Crowd control and use of armed force
Where an unlawful assembly which does not disperse by use of civil force, the executive magistrate is empowered under Section 130 CrPC to cause it to be dispersed by armed force, Clause (3) of Section 130 requires the police officers to “use as little force, and do as little injury to person and property as may be consistent with dispersing the assembly”. Internationally, India is also bound by UN basic principles for the use of force and firearms, Section 13 of the basic principles states that use of force in dispersing non-violent unlawful assemblies should be avoided and if that is not possible, then minimum force should be used.
The main principles for the use of any kind of force by the police are enlisted in the respective police manuals of the states. In Uttar Pradesh, the UP Police regulation (available in Hindi on the UP police website and roughly translated by the author into English) under Section 70 provides the main principles governing the use of force of any kind, as follows:
The magistrate, if present and the senior police officer should act throughout in cooperation.
All Attempts to disperse a crowd by warnings and exhortation shall be made before it is ordered to disperse.
Once the order to disperse has been defied or when after the order has been given the attitude of the crowd remains defiant, force shall be used.
If a magistrate is present, the responsibility for using the force shall rest with him and it is for him to direct the senior police officers to use force. If no magistrate is present the responsibility will rest with the senior police officers.
The magistrate if present or if no magistrate is present, the senior police officer is responsible for seeing that the minimum force necessary for the effective dispersal of the crowd and making of necessary arrest is used.
The kind and duration of force used shall be subject to the reservation in Clause 7 be decided by the senior police officer and the least deadly weapons, of which the circumstances permit, shall be used. No ulterior object, such as punitive or repressive effect, shall be taken into consideration.
The use of force must cease immediately when the object has been obtained. The magistrate if present, has the power to decide when sufficient force has been applied. He should make his decision after consultation with the senior police officer.
Volume 2 of The Model Police Manual prepared by the Bureau of Police Research and Development (BPRD) provides that for dispersal of mobs, officers commanding police parties will, ensure that the fullest warning is, if feasible, given to the mob in a clear and distinct manner before any order is given to use tear gas or lathis or firearms.
In Anita Thakur v. State of J&K, (2016) 15 SCC 525, The Supreme Court of India observed that, “In those cases where assembly is peaceful, use of police force is not warranted at all. However, in those situations where crowd or assembly becomes violent it may necessitate and justify using reasonable police force. However, it becomes a more serious problem when taking recourse to such an action, police indulges in excesses and crosses the limit by using excessive force thereby becoming barbaric or by not halting even after controlling the situation and continuing its tirade. This results in violation of human rights and human dignity. That is the reason human rights activists feel that police frequently abuses its power to use force and that becomes a serious threat to the rule of law.”
Recent incident at AMU
On May 2, 2018, nearly 15 to 20 right-wing goons marched towards AMU’s main entrance shouting abusive and provocative slogans such as “AMU ke gaddaron ko, jootey maro salon ko” and “Hindustan mein rahna hoga, Vande Mataram kehna hoga (those living in Hindustan must say Vande mataram)“. The right to freedom of speech and expression does not extend to using offensive language. When these goons approached the university, the former vice-president of India M Hamid Ansari was in the adjacent building. In his letter sent to AMU Students’ Union (AMUSU) president, Ansari has himself raised questions about the timing of this incident, pointing out that the concerned authorities had been officially informed of his visit. It is surprising that not only did the police fail to ensure security, the video footage of the day shows policemen escorting the goons.
In the AMU incident, tear gas was used after the lathi charge. credit: PTI
Thereafter when the police refused to arrest them or register an FIR, the AMU students led by the AMUSU office bearers who had assembled in protest, proceeded towards the nearest police station, just a kilometre away. This is when the police launched a brutal lathi charge against the students, injuring 30 students. Ideally the police should have complied with the principles listed in the Police Regulations, but the video footage does not show that. The following points are noteworthy:
First, the assembly of university students was not unlawful, neither was it disturbing public order, students were not carrying arms or weapons. They were merely demanding the perpetrators be arrested and marching towards the police station to exercise their right to file an FIR.
Second, the police is required to make all attempts to warn the crowd clearly and in distinct terms before use of tear gas or lathi charge, there has been no suggestion that such a warning was given to students. Some state police manuals, such as Kerala’s require the use of force to be progressive i.e use of tear gas is to be used first as it causes little bodily injury. In the AMU incident, tear gas was used after the lathi charge.
Third, despite the warning if the crowd does not disperse, force may be used. The principle No.7 of the UP Police regulation requires that “No ulterior object, such as punitive or repressive effect, shall be taken into consideration.” In other words, far from exercising punitive and repressive actions, the police is forbidden from even considering it. The object of using force is to ensure that the crowd disperses. The video footage of the lathi charge shows a student taking shelter under a tree and covering his head, but four to five policemen surround him and brutally beat him with the lathi, one student is hit with the ‘butt’ of the rifle on his head, many students suffered fractures. Such attacks on vital body parts have a punitive character. The question that arises is whether brutally striking the vital body parts the sole way of dispersing the crowd?
Fourth, Principle No. 8 of the regulations mandates that “the use of force must cease immediately when the object has been obtained”. The video footage reveals students running backwards and the police chasing them, in other words the object was achieved, the crowd was dispersed. Yet policemen can be seen stopping students and brutally hitting them.
Similar violations of principles of use of force have been seen during the lathi charge by the Delhi Police on JNU Students in March 2018 wherein female protestors complained of being grabbed by the chest, pulled by their hair and kicked repeatedly on their heads. Even students witnessing the incident complained of being surrounded and attacked by two dozen policemen. In Osmania University, video footage shows policeman barging into a room full of protestors who were seated on their beds peacefully and attacking them with lathis. Thus, the by police forces is common across the country.
In Police Commisioner & Ors. v. Yash Pal Sharma, (2008) 155 DLT 209 (DB , the Delhi high court observed that “The object of the provisions of Section 129 of the Code, or for that matter Rule 14.56 of the Punjab Police Rules, is to use the force to quell a disturbance of the peace or disperse an assembly which threatens such disturbance and has either refused to disperse or shows a determination not to disperse. Forgetting this, the act of the police was punitive and repressive.”
Uttar Pradesh and lathi charge
The National Crime Record Bureau’s Crime in India 2016 reveals that there were 185 occasions on which police used lathi charge in Uttar Pradesh, the second highest in the country after Jammu and Kashmir, during which 219 civilians and 11 policemen were injured. In comparison, there was one, ten and two lathi charge incidents in Madhya Pradesh, Maharashtra and Rajasthan respectively. It remains unexplained why UP, not being a disturbed area like Jammu and Kashmir had to use lathi charge so frequently, when states of comparable size, in North India saw minimal use? This is not to suggest that police forces in other states do not abuse their powers, however, UP has a long way to go. The Uttar Pradesh Police regulation needs an overhaul, specific instructions regarding different kinds of force ought to be provided. The police officers need to undergo regular mock drills and be educated on the relevant rules.
In Anita Thakur case, Kurian J. also observed that “Policemen are required to undergo special training to deal with these situations. Many times, situations turn ugly or go out of control because of lack of sufficient training to the police personnel to deal with violence and challenges to their authority. There are various documents in the form of police manual and even international covenants proscribing use of unnecessary force.”
While much of India has emerged from the shadows of British Colonialism, its police force remains immersed in an archaic style of functioning. Among the many legacies India inherited from the British such as the parliamentary system of government, unfortunately, it also inherited the legal framework used by the then colonial police to crush protests and demonstrations. The need of the hour is to engage in immediate police reform, before the rule of law transforms into the rule of police.
Wajahat M. Jilani is a fourth year law student at the Faculty of Law, Aligarh Muslim University.