Arbitrary handling of public protests
Many of the readers might have an occasion to protest for something or at least, they must be interested in knowing the police powers and response during protests and agitations.
Arbitrary and ambiguous police response
Police response to public protests is invariably arbitrary—either they do not react at all or they overreact. Quite often, the police is guilty of deliberate inaction for well-known reasons of political expedience (such as during the Haryana Jat agitation, Rajasthan Gujjar agitation, and communal violence in Kokrajhar, etc.). Such deliberate police inaction is sought to be passed off as tactful handling.
At other times, they use excessive force. The most recent example was in Assam. The horrific video of the police firing in Dholpur, Sipajhar, Assam in September 2021 left the nation stunned in disbelief. The absolutely wanton manner in which the police personnel were seen firing at chest height at civilians as if they were doing some target practice was absolutely unprecedented in the history of the country and could probably put even the Jallianwala Bagh firing to shame.
It should not require the Supreme Court to tell the police that it is their primary responsibility to prevent the commission of crimes; to ensure that law and order and public order are maintained; and that mobs do not become lawless. The rule of law has to be upheld at any cost.
The reality of the Indian police is that in most cases of lawlessness, the police have remained a mute spectator. This is not because of cowardice. There has been no occasion when the police were found to be outgunned by the criminals, rioters or a mob. They refuse to act because they and the State that controls them are seldom fair or impartial.
When they use force, it is usually characterized by a gung-ho attitude that goes like: “We are giving you such-and-such order; you better obey it immediately or else we shoot you down. After that, we will cook up a story that you had thrown acid bulbs or country-made bombs at us or had fired at us from within the crowd. We can also say that you threw stones at police vehicles or set them on fire. Who is there to disbelieve us?”
In general, the standard techniques adopted by the police in dealing with public protests include the following broad approaches:
- Use methods like curfew and Internet shutdowns to make life so miserable that the fervour gradually subsides.
- Do not take any action. Let the rioters have a field day and let the agitation subside on its own or when their demands are acceded to by the government.
- Use force on them and continue to kill people—after all, no agitation can last indefinitely—eventually they get tired.
- Institute judicial or magisterial inquiries to provide a vent to public anger and to let time be the healer.
What the law says?
In Anita Thakur (2016), the Supreme Court held that the right to peaceful protests without arms is a fundamental right guaranteed in the Constitution. However, the aforesaid right is subject to reasonable restrictions in the interest of the sovereignty and integrity of India, as well as public order. The Court held that in those cases where the assembly is peaceful, the use of police force is not warranted at all. However, in those situations where a crowd or assembly becomes violent, it may necessitate and justify using a reasonable police force. In this judgment, the Court also laid down principles for awarding compensation for breach of fundamental rights of citizens.
In Amit Sahni (2020), the Supreme Court held that public protests and demonstrations expressing dissent must only be organized in ‘designated places’ only. This judgment was delivered in connection with the matter of the anti-CAA (Citizenship Amendment Act) at Shaheen Bagh, Delhi. The Supreme Court said that in respect of streets and public parks, the rights of protestors had to be balanced against the rights of commuters.
Procedures the police must follow
For the police to order and disperse an assembly, it has to be first declared an unlawful assembly. Now the problem is who determines it, and how sure the suffering public could be that the aforesaid determination is correct? Would a mere sub-inspector decide that? Have country and its laws vested the power of life and death in the hands of someone who, until a year back, was a frustrated, unemployed youth like millions of his ilk and who, by a sheer stroke of luck happened to clear the exam for the post of SI? Can one year of PT and drill imbue a person with so much wisdom? Is there any reason to believe so? Not in my considered opinion.
In Acharya Jagdishwarananda Avadhuta (2004), the Supreme Court prohibited weapons in processions. The question is who will decide and on what ground as to what makes a dangerous weapon? Carrying sticks disguised as flagpoles is common—can they not be used as weapons? Several stones could be carried concealed easily in the pockets of trousers. Swords could be concealed in sticks—the so-called Guptis or sword-sticks. Are the police supposed to check every member of the mob before they come out on the streets or after that? What are the police supposed to do if they spot such weapons by chance or suspect that there is some weapon? Arrest them or use force? What happens if it provokes the people? What happens if the police use force and are subsequently found to be mistaken?
How do they get scope for acting in an arbitrary manner?
It is not prescribed anywhere in Section 129 CrPC or in any judgment as to what sort of force is to be used in which situation even when a proper warning has been issued? Should the fire be opened when the agitators are damaging rail tracks, but not if they are burning some police vehicle or private vehicles? Should the 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? Readers may recall that 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 the 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 a chargesheet against just one inspector of police but 71 protesters!
The country has unfortunately left everything to the discretion of the cops on the ground.
Illegal weapons that the police must never use
During the farmers’ agitation in Delhi in 2021, we saw photographs of some policemen holding what appeared to be metal pipes replete with metallic forearm guards in a two-hand grip with a basket hilt. They were illegal as the government has not approved them. Yet, they had the audacity to argue that the protesters had swords. The answer does not lie in responding with equally barbarous weapons themselves. The answer lies in invoking the law laid down in Acharya Jagdishwarananda Avadhuta (2004).
It is precisely for this reason that Electronic Disabling Devices or Electroshock weapons (popularly known as Tasers) have not been introduced in Indian police because Rule 89(3)(a) of the Arms Rules 2016 stipulates that they can be imported only if medical research reports on as many as eight points are produced, which prove that the technology used is neither lethal nor would cause permanent damage. Indian Express had reported in March 2020 that Gujarat police had bought some Tasers. In the absence of such medical studies as required by the law, the introduction is simply illegal. Why, of all the police forces in the country, only Gujarat police dared to violate the law needs no explanation.
Extremely unfortunate that 74 years after independence and 160 years after the present legal system was put into place, the police still act arbitrarily in dealing with public protests. It shows what real value the common man has in the system.