By Nilesh Jain*
Rajesh Sarkar, 19, and Tapash Burman, 21, both former students of Daribhit High School in Islampur, West Bengal, died of bullet injuries. The clashes erupted on September 20, when a section of students along with locals and former students of Daribhit High School were agitating over recruitment of teachers. The protest turned violent with the protesters pelting stones at the police, who opened resorted to open fire on the agitators.
However, the police claimed that “There was a violent mob at the school with bombs, illegal arms and sticks. When police entered the school to help an ailing teacher the mob hurled bombs and pelted stones at the police. We used minimum force and non lethal weapons. One of our constables suffered gunshot injury. Police did not open fire.” If the Police fired at the agitators, let’s see if they took all the precautions necessary in case of firing at the civilians.
A valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest and a distinguishing feature of any democracy is the space offered for legitimate dissent. Cherished organized, non-violent protest marches were a key weapon in the struggle for independence, and the right to peaceful protest is enshrined as a fundamental right in the Constitution.
In the case of S. Rangarajan v. Jagjivan Ram (1989) 2 SCC 574, the Supreme Court expressed that,
“The problem of defining the area of freedom of expression when it appears to conflict with the various social interests enumerated under Article 19(2) may briefly be touched upon here. There does indeed have to be a compromise between the interest of freedom of expression and special interests. But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched.
“It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg’. The State has a duty to provide security and protection to the persons who wish to attend such assembly at the invitation of the person who is exercising his right to freedom of speech or otherwise.”
All villages, towns and cities in the country, however large or small have a particular area and routes dedicated for the purpose of holding public meetings. The police and the State administration have a duty to facilitate these meetings, in which citizens exercise their fundamental right of public assembly.
And there is always the possibility that a public rally will become unruly, which can damage to life and property. This is when a public assembly becomes unlawful, which is defined in Section 141 of the Indian Penal Code. Under these circumstances, the State administration is permitted to disperse the crowd to prevent injuries or damage. This may entail the use of force in a controlled and specified manner.
The principle governing the use of force as explained in the law and in police procedures remains constant: force should only be used when it is absolutely necessary, it should be minimum and proportional to the situation and its use should be discontinued as soon as the danger to life and property subsides. As provided in the Principle 4 of Code of Conduct for the Police in India, on July 4, 1985, by Ministry of Home Affairs,
“In securing the observance of law or in maintaining order, the police should as far as practicable, use the methods of persuasion, advice and warning. When the application of force becomes inevitable, only the irreducible minimum of force required in the circumstances should be used.”
As far as practicable, the method of persuasion, advice and warning should be used. If, however, the use of force became unavoidable then only the irreducible minimum force should be used in the required circumstances.
Section 129 and 130 of Cr. P.C. 1973, an executive magistrate or an officer- in charge of a police station, any police officer, not below the rank of a sub-inspector can order the use of force. Use of force can only be resorted to if an unlawful assembly or an assembly of five or more people (likely to disturb public peace) does not disperse on being ordered to or shows a determination not to disperse. If the assembly cannot be dispersed otherwise and it is necessary in public interest, then the executive magistrate can order armed forces to disperse the assembly. Even then, every officer must use as little force and do as little injury to person and property.
Section 129 of Cr.P.C. provides for the options available to the police to disperse an unlawful assembly. What this provision has to strike balance against is the constitutional guarantee of a right to assemble under Article 19(1) (b) and the right under 19(3). The section covers 1) an actual unlawful assembly 2) a potentially unlawful assembly. Except otherwise, u/s. 99 of IPC, the Law enforcement agencies enjoy the same right of private defence as ordinary people under the Indian Penal Code to protect life and property, which in any case cannot cause more harm than is necessary for defence.
In the case Hanuman Singh v. State Uttar Pradesh, 1969, the Hon’ble Allahabad High Court observed that that unlawful character of an assembly has to be determined with reference to section 141 of Indian Penal Code alone and failure or refusal to disperse does not convert a lawful assembly into an unlawful one, failing which use of force over such an assembly would be unjustified. Another requirement is that the officers charged with the maintenance of law and order can use only that much force as is necessary for the disposal of an unlawful assembly and suppression of the riot.
The Hon’ble High Court of Andhra Pradesh in A.P. Civil Liberties Committee (APCLC) V. Government of A.P., 2009 has held that,
“…the provisions of Section 129 Cr.P.C. r/w Section 130(3) Cr.P.C; Section 149 Cr.P.C. r/w Section 97 IPC; Section 46(3) Cr.P.C, and Sections 99 – 103 IPC, clearly discloses that since the exercise of a power and the manner and extent of its exercise is conditional upon, controlled or limited by the requirement of conformity to reasonable and objective standards, the discretion employed in the exercise of such regulatory power is subject to judicial review and no claim of unfettered executive discretion is legitimate.
“In case of injury or death caused by police, the perpetrator’s claim to the existence of circumstances which bring the facially prohibited conduct within the justification defenses either Under Section 76, 79 or 97 r/w 100 IPC (even in the absence of a complaint by or on behalf of a victim), judicial review of the validity of claims of justification defenses is mandatory and it is the competent court which must decide whether the police had used force in the manner and to the extent permitted by law or had exceeded the parameters of justification defenses and thus committed an act that is culpable”.
In Queen v. Subba Naik, 1898, the Hon’ble Madras High Court has held that killing can be justified only by the necessity for protecting persons or property against various forms of violent crime, or by the necessity of dispersing a riotous crowd which is dangerous unless dispersed. In the absence of these necessities being fulfilled, what an instance of firing can give rise to any offence that it can fall under, committed in the normal circumstance.
In the case of Maneka Gandhi v. UOI, AIR 1978 SC 597, the Supreme Court opined that
“The principle of reasonableness, which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be right and just and fair and not arbitrary fanciful or oppressive otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied”.
In the case of Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1947)2 All ER 680, the court held that the “Wednesbury’s unreasonableness” … applies to an administrative decision, which is so outrageous in its defiance of logic or of accepted moral standards. Shooting protestors with an assault rifle and such other weapons by aiming them is beyond reasonable standards or principle of reasonableness on the part of state administration.
India is also bound by United Nations standards, which reiterate that the UN Basic Principles state that the use of force in dispersing non-violent unlawful assemblies should be avoided and if that is not possible, then minimum force should be used. Section 13 and Section 14 of Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 1990, in the case of violent unlawful assemblies, firearms should only be used if less dangerous means are not available and only to the minimum extent necessary. Section 13 & 14 are provides that:
“13. In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
“14. In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary. Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in principle 9.”
The Principle 9 of the basic principles provide that the Law enforcement officials shall not use firearms against persons except in self-defense or defense of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.
The Model Rules on the Use of Force by the Police against Unlawful Crowds, 1964 adopted by the Inspector General of Police Conference provides it clearly that,
“Minimum necessary force should be used to achieve the desired object. Force should be regulated according to the circumstances of each case. The object of such use of force is to disperse the assembly and no punitive or repressive considerations should be operative while such force is being used”.
The procedure regulating the use of force by the police administration is outlined in the police manuals of different states. The Standard Operating Procedures (SOP) for Crowd Control lays down a step-by-step procedure to deal with unlawful assemblies and eventual police firing:
- The police must invariably secure the presence of a magistrate where it anticipates a breach of peace.
- The decision to use force and the type of force to be used is to be taken by the magistrate.
- Once the order for the use of force is given by the magistrate, the extent of force to be used will be determined by the senior-most police officer.
- The extent of force used must be subject to the principle of minimum use of force.
- Use of force should be progressive i.e. firearms must be used as a last resort if tear smoke and lathi charge fail to disperse the crowd.
- Common tear smoke which causes no bodily injury and allows recovery of affected persons should be used.
- When the crowd is large and the use of tear smoke is likely to serve no useful purpose, the police may resort to lathi charge.
- Lathi charge can only begin if the crowd refuses to disperse after suitable warning.
- Clear warning of the intention to carry out a lathi charges should be given through a bugle or whistle call in a language understood by the crowd. If available, a riot flag must be raised. If the police officer in-charge is satisfied it is not practical to give a warning, s/he may order a lathi charge without warning.
- Lathi blows should be aimed at soft portions of the body and contact with the head or collarbone should be avoided as far as practicable.
- The lathi blows must not cease until the crowd is completely dispersed.
- If the crowd fails to disperse through the lathi charge, the magistrate or the competent officer 8 may order firing.
- The fullest warning in a clear and distinct manner must be given to the crowd to inform them that the firing will be effective.
- If after the warning, the crowd refuses to disperse the order to fire may be given.
- The police are not on any account allowed to fire except on a command given by their officer.
- A warning shot in the air or firing over the heads of the crowd is not permitted (*Police manual of some states allow the firing of warning shots in the air to caution the crowd.).
- An armed force should maintain a safe distance from a dangerous crowd to prevent being overwhelmed or increasing the chances of inflicting heavy casualties.
- Aim should be kept low and directed at the most threatening part of the crowd.
- Firing should cease the moment the crowd show signs of dispersing.
- All help should be rendered to convey the wounded to the hospital.
- Police officers must not leave the scene of disturbance before satisfying themselves beyond reasonable doubt about the restoration of tranquility.
- An accurate diary of all incidents, orders and action along with the time of occurrence should be maintained by the police. This will include an individual report by all officers involved in the firing.
- The number of fired cartridges and the balance of unfired cartridges should be verified to ensure ammunition is accounted for.
Article 3 of the Code of Conduct for Law Enforcement Officials, 1979 provides that law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty. National law ordinarily restricts the use of force by law enforcement officials in accordance with a principle of proportionality. The use of firearms is considered an extreme measure. Every effort should be made to exclude the use of firearms, especially against children.
UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials also govern the lawful use of what is often described as “less lethal” weapons, munitions and policing equipment – such as plastic and rubber bullets, tear gas (chemical irritants either sprayed or in projectiles), stun grenades or what are commonly called “flash bangs” and batons or truncheons – which can result in serious injury and even death. Armored vehicles often facilitate the use of such equipment and can also be extremely dangerous when used against demonstrators. Therefore, the type of equipment used for the purpose of dispersing an assembly must be carefully considered and used only when necessary, proportional, lawful and accountable. Police using “less lethal” equipment must be specially trained and under strict command according to professional standards for the legitimate use of such force. Chemical irritant mixtures and their means of delivery vary and are approved by governments for the use in minimal force to disperse a crowd that is threatening violence
Trigger-happy policemen have quite often come in for severe criticism throughout the country for allegedly killing people while quelling riots, dispersing unlawful assemblies, controlling crowds, etc. While there may be an immediate cause for the people to indulge in rioting, the police must exercise restraint even under grave provocation and try to counsel those spearheading any agitation not to take the law into their own hands.
The permission to take out processions is granted under section 30 of the Police Act 1861 or under the Acts/Rules enacted by various States. The police have legal powers to regulate the flow of procession and traffic so that the normal life is not thrown out of gear when thousands converge on roads. In the lawfully assembled crowd, the participants may make the assembly unlawful when they in furtherance of common objective commit an unlawful act to resist the execution of any law or any legal process under section 141 (ii) of the IPC. But, the police must have recourse to persuasive methods when an immediate breach of the peace is apprehended.
A fair inquiry by an independent body is necessary before making any conclusions on the police firing in Islampur, West Bengal.
*Student of Master of Laws at Delhi University, researcher at Swaraj Abhiyan