The recent widespread protests, concentrated mostly in Delhi, have exposed the ineptness and insensitivity of the Indian police forces in tackling protests. The regime-centric nature of the police across the country, causing brutal handling of protests, is increasingly alienating it from society and the people. Consequently, the institution views protesters as enemies of the regime, and hence of the state. The regime is also happy to reinforce a ruthless image of the law enforcement agencies to deter dissenters and opponents. Therefore, the police and security agencies are not only given orders to unleash fierce force, they are also given a free hand to use merciless violence against protesters. This was evident during the October protests led by the Cockroach Janata Party (CJP), the Congress and other opposition parties.Rule of law and protest policingPolicing in general, and protest policing in particular, is performed according to the principles of the rule of law. Noted scholar of law Upendra Baxi defines the rule of law as a principle which “is always and everywhere a terrain of peoples’ struggle incrementally to make power accountable, governance just, and [the] state ethical.” Internationally, the United Nations places rule of law as “a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights and norms and standards.” Hence, the principle of accountability built into the rule of law creates a great responsibility upon the state and its “law enforcing” agencies to be humane, just and ethical. For, a protest may not necessarily be anti-government or anti-regime.The principles of the rule of law, has accountability innate to it, and safety and security of citizens that it inheres are enshrined in Articles 21 and 22 of the Constitution of India. Article 21, in Part III of the Constitution dealing with Fundamental Rights, which states “No person shall be deprived of his life or personal liberty except according to procedure established by law”, is basic to ensuring physical safety not only to citizens of India but to any person within the territory of the Republic of India. Importantly, the debates in the Constituent Assembly raised apprehensions that the empowerment of the Indian parliament with the principle of “procedure established by law” could be misused. To allay that fear, a full section of the erstwhile Criminal Procedure Code (CrPC) was incorporated in Article 22 to limit the policing powers of the Indian state by providing additional safety to an arrestee.Thus, when we look at the recently enacted Bharatiya Nyay Suraksha Sanhita (BNSS) to replace the CrPC, its relevant sections regarding the policing powers of the Indian state may conform to constitutional principles. However, in practice they are violated by the state by issuing verbal orders of harsh, even brutal, police practice. For example, Sections 148 to 151 of the BNSS empower police and civil/armed forces to disperse unlawful assemblies that threaten public peace. Section 152 to 162 of the BNSS empower an Executive Magistrate to issue conditional or absolute orders for the removal of public nuisances. Section 163 of the BNSS empowers an Executive Magistrates to issue urgent orders in cases of nuisance or apprehended danger (replacing the erstwhile Section 144 of the CrPC) to restrict assemblies or prevent immediate threats. Section 168 to 172 BNSS are regarding preventive actions and intervention powers granted to the police.Also read: Home Ministry Extends Deployment of 273 CAPF Companies in DelhiWhether the BNSS provisions are in consonance with the crucial Articles 21 and 22, and whether protest policing respects Article 19 (1a and 1b, particularly the latter relating to permitting peaceful assembly) is an issue of intense judicial scrutiny and legal debate. The BNSS indeed explicitly incorporates established constitutional safeguards regarding arrest and trial timelines. It also simultaneously expands the state’s executive and police powers, prompting constitutional challenges in the Supreme Court of India. The Supreme Court, for instance, has repeatedly cautioned against violating the right to peaceful protest. The usage of Section 172 of the BNSS allows police to detain or remove individuals who disregard or resist their public order directions. The Supreme Court has ruled that it must remain strictly proportionate and evidence-based so as not to choke the spirit of the constitutional provisions. Section 187(2) of the BNSS permits a 15-day police custody period to be broken up and spread across the first 40 or 60 days of detention. However, spreading custody over two months severely risks delaying bail and prolonging state detention, creating an environment susceptible to custodial harassment. The erstwhile CrPC strictly restricted detention to 15 days.The protestsIt is obvious that the police conduct in the recent protests has been severely violating not only the principles of human rights, but also the rule of law as well as the Constitution of India and the provisions of the BNSS. The first question we need to ask is, could the government not have simply allowed the protests as long as it was peaceful? The police immediately imposed Section 163 of the BNSS, prohibiting assembly of more than five persons. Obviously, the protesters were not deterred. A large-scale deployment of the police and security forces was a natural consequence. The pictures and videos available of different stages of protests showed that not only Delhi Police, which under the Commissioner system has some magisterial powers as well, but the Central Armed Police Forces, including the Ra[id Action Force and the Border Security Force, were also deployed. Aside from these three, a particular peculiarly uniformed personnel with designer pockets on their shirts were also seen. Many of the security personnel were without the mandatory name plates on their breasts. The presence of plain clothes persons with a police baton, some of them spiked with nails, made it all the more controversial.Despite delineating the area of protest, the security personnel started removing the protesters forcibly by stuffing them in the waiting buses. Since the removal of the Chief Election Commissioner Gyanesh Kumar was (and still is) among the chief demands of the demonstrators, the police were stopping their march towards the Election Commission office. In order to manage the large gathering, a small delegation of 10 leaders of the INDIA bloc managed to get an appointment to meet President Droupadi Murmu on October 9 and submitted a memorandum. Following an hour-long meeting, Leader of Opposition Rahul Gandhi claimed that the President accepted their submission without any comment. She, however, asked the delegation to provide evidence supporting its claims and assured them that she would look into the matter.Yet, it was the violence unleashed on the protesters that was most shocking. Visibly, videos showed police personnel, both male and female, misbehaving with the young girls participating in the protest. In some cases, their clothes were torn. Late at night, the protesters – including women – were stuffed into the waiting buses, carried to far off places and left in the middle of nowhere. Some of them were detained in jails. Lest we forget, in the previous one against Dharmendra Pradhan, the use of pellet guns was also reported and in one case, Rahul Gandhi had to accompany a protester who lost vision in one eye to a police station to have an FIR registered.Obviously, the Delhi Police, whose chief was missing during the action, failed in democratic conduct in policing peaceful protest.Ajay K. Mehra, a political scientist, is senior fellow at the Centre for Multilevel Federalism. He was Atal Bihari Vajpayee Senior Fellow, Nehru Memorial Museum and Library, New Delhi, 2019-21 and Principal, Shaheed Bhagat Singh Evening College, Delhi University (2018). The author alone is responsible for the views expressed in this essay.