The Supreme Court on Tuesday, 17th of December 2019 asked the petitioners in the Jamia Violence matter to approach the concerned High Courts with their prayers for a Court-monitored probe into the reports of police atrocities against students of Jamia Milia Islamia and Aligarh Muslim University during protests against the Citizenship Amendment Act, 2019. The primary reason for non-intervention of Apex Court was its reluctance to adjudicate in the absence of established facts (fact finding is essentially a function of the trial courts) and the vast area over which the matter is spread because prayers were also made concerning incidents in other universities such as Aligarh Muslim University (AMU). Subsequently, on 19th December, the Delhi HC issued notice to the government and the police but refused to provide any interim relief to the petitioners.
This article seeks to provide a legal perspective to the issue by tracing the law relating to the use of force by the police to clamp down protests. The article does not seek to comment on the merits or the righteousness of the actions resorted to by either of the parties to the issue and as stated earlier, only aims to provide a legal perspective to the issue in the backdrop of facts available in the media.
The evening of Sunday 15th December 2019 rocked the entire nation as reports of a student led protest in Delhi's Jamia Milia Islamia University turning violent came in. Popular English daily, the Hindu reported that police had entered the campus without the administration's approval and applied brute force including tear gas firing to clamp down the protest by the students. Authorities at Jamia Milia Islamia University on Monday termed Sunday's police crackdown against its students as a "war-like situation" and demanded a high-level probe into the incident. Furthermore, as many as 50 students were detained by the police, who were subsequently released in the wee hours of Monday.
On the other hand, talking about the protest to India Today TV, DCP South east Delhi Chinmaya Biswal contended that it was the students who had instigated the ruckus by resorting to violent means of protest including stone pelting and the police had to scatter the raging crowd to maintain law and order.
The incident led to nationwide protests with widespread support pouring in from a number of premier national institutes such as IIT Bombay, IISc Bangalore, NLUs etc. in favour of the protesting students and against the excessive use of force by the Police. Alumni associations from international institutions such as Harvard and Yale also issued statements of solidarity with the protesting students. On the opposite side of the spectrum, a number of news channels and statesmen alike supported the actions of the police by putting forth the argument that the police had all the right to use force in cracking down a protest which had allegedly turned violent.
The issue is far from over and has led to a division of opinion amongst the citizens, especially in the already turbulent background of the passing of the Citizenship Amendment Act and its widespread opposition.
Questions Arising from the Issue
It is undisputed that in a country based on democratic values, every citizen has the fundamental right to dissent. It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. Justice D.Y. Chandrachud conceptualised this right of dissent as the safety valve of democracy in Bhima Koregaon. This right along with the right to assemble to exercise such right has been enshrined in Article 19(1)(a) & 19(1)(b) of the Constitution of India.
However, there is always a possibility that a public rally may become unruly, which can mean damage to life and property. This is when a public assembly becomes "unlawful", defined under Section 141 of the Indian Penal Code, 1860. Therefore, it must also be ensured that this dissent is registered via constitutional means. Violent dissent or dissent which causes harm to the general public is no dissent as it enters into the realm of an offence. This proposition finds its way into Article 19(2) as well wherein reasonable restrictions can be imposed on the freedoms provided under the former part of the article. In fact, a number of legal provisions provide a wide array of powers to the police, including the right to use reasonable force to disperse any unlawful assembly and maintain public order. Examples of such provisions are: Section 143 CrPC empowers an Executive Magistrate to prohibit the repetition or continuation of public nuisances and Section 144 CrPC permits the issuance of directions to members of the public to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.
Therefore, before addressing the legal questions there are certain factual questions which will have to be determined by the Court like; What was the nature of the protest at the Jamia University? Whether necessary approvals were taken by the Police before entering the campus? Was force exercised against non-protesting students as well? Only after the establishment of these facts, the Court will determine the broader legal questions arising from the issue, which the article seeks to answer: Can force be used to crack down protests? If yes, when can such force be used? Another set of questions which arise from the issue are: What is excessive use of force? What is the determining criteria to establish that force used by the Police was excessive in nature? Lastly, the most important question which arises for consideration is; What are the principles governing the use of force by the State?
When and to What Extent Can Force Be used to Clamp Down Protests?
The first case which must be referred to in relation to this question is Karam Singh v. Hardayal Singh [1979 SCC OnLine P&H 180] wherein the High Court held that three prerequisites must be satisfied before a Magistrate can order use of force to disperse a crowd under Section 129-132 of the CrPC:
Further, In Re: Ramlila Maidan incident [2012 5 SCC 1] the Apex Court while criticizing the handling of mass protests by the Police held that the restrictions on the freedoms under Article 19 can be curbed only by reasonable restrictions and not by hasty, unreasonable restrictions.
The position was finally cemented by the Supreme Court in the case of Anita Thakur v. State of J&K [2016 15 SCC 525]. In the instant case, the petitioners alleged that the police used brute and excessive force to clamp down their protest. The police rejected the allegation stating that it was the petitioners who instigated the violence and started pelting stones at the police. It was contended that the police only responded to such instigation.
The bench comprising Justice Sikri and Justice R.K. Agrawal found the police guilty of using excessive force in bringing down the protest even though the violence was instigated by the petitioners.
The Court opined 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 that human rights activists feel that police frequently abuses its power to use force and that becomes a serious threat to the rule of law."
The Court further referred to various documents such as Model Rules on the Use of Force by the Police against Unlawful Crowds (Adopted by the Inspectors General of Police Conference, 1964) and a number of police manuals mandating that force should only be used when it is absolutely necessary and in a proportionate manner.
Defining "Excessive Force"
The term excessive force was lucidly defined by the US Courts in the case of Graham v. Connor [490 U.S. 386, 396-99 (1989)]:
"Excessive force is defined as force that exceeds what is objectively reasonable and necessary under the circumstances for an officer to subdue or control a person."
Taking cue from this definition, the Apex Court's decision in Anita Thakur clarifies that force used is excessive when it is disproportionate and unreasonable to the action sought to be controlled. This leads us to the consideration of the principles governing use of force by the state/law enforcement agencies.
Three Principles Governing the Use of Force
In so far as it governs use of force, the law of law enforcement has three main components: necessity, proportionality, and precaution. These norms are binding on all states as general principles of law. Necessity and proportionality set limits on how and when force may be used during policing actions. Law enforcement officials must comply with both principles and failure to respect either principle will usually mean violation of human rights by the State. In contrast, the principle of precaution requires states to ensure that law enforcement operations are planned and conducted so as to minimize the risk of injury.
The "three principles test" was used by Lord Neuberger of the Court of Appeal in R (McClure and Moos) v Metropolitan Police [2012 EWCA Civ. 12], wherein he opined that, "If steps such as arrests for breach of the peace or containment, as an action short of arrest, are to be justified, they must be necessary (i.e. only in extreme and exceptional circumstances), as well as reasonable and proportionate."
The importance of proportionality was also highlighted by the Hon'ble Apex Court in the landmark case of Om Kumar vs Union of India [2001 (2) SCC 386] wherein it was held that, "administrative action in India affecting fundamental freedoms has always been tested on the anvil of 'proportionality'".
Therefore, the following tests must be satisfied for upholding the legality of use of force by law enforcement agencies:
Drivers of Excessive Force and Need for Police Sensitisation
The use of excessive force by police against civilians takes place against the backdrop of a more general conflict between the two groups i.e. the police and the citizens. Majority Police Departments function under the belief that all their actions have the sanction of the state. The coparcenary of this belief is the lack of empathy or sensitivity for the rights of the citizens. The response to this belief is aggravated agitation from people against the actions of the police, often leading to a violent clash amongst the two groups and subsequent use of excessive force.
This behaviour becomes contagious in an organizational culture that tolerates and promotes misuse of force. In fact, research on observational learning suggests that officers who witness other officers use excessive force are more likely to use excessive force in the future in similar settings. Therefore, it is not only the Courts which have to ensure a system of checks and balances over the use of force by the police rather this system must find place at an intra-department level also.
The second major problem is related to the lack of sensitisation about the rights of citizens. The issue of police sensitisation was rightly dealt with in the case of Monica Kumar v. State of U.P. [(2017) 16 SCC 169.] The Apex Court highlighted the need to sensitise the police about the rights of the citizens and the civilised manner in which police should maintain public order. The Court issued various directions for specialised police training and provided suggestions to bring about positive results.
Events that lead to the use of force, particularly dangerous force, must be examined and lessons drawn. From a policy perspective, police Officers must be trained to apply creative methods to diffuse conflict and to control mobs with minimal use of force. Citizens must reciprocate this by resorting to and teaching each other the value of constitutional way of registering dissent. In the context of the Jamia issue, if it is established that the police used excessive or unnecessary force against the protesting students, the State must be held accountable.