Mar 10, 2020
By: N.C. Asthana
There is a popular myth, often fostered by the police itself, that the force requires ‘orders’ from their superiors, i.e. the political executive, in order to ‘act’. In reality, under the law, the police have adequate powers and they do not need any orders from anybody, provided they are ‘aware’ of their powers and have the will to act, writes N.C. Asthana, a retired IPS officer, former DGP Kerala.
Criticising the police’s role in handling the protests and violence in Delhi, Justice K.M. Joseph said, on February 26, “Police needs to take action like they do in England. Things are happening before them.” Justice Joseph also criticised the Delhi Police’s “lack of independence and professionalism” in dealing with the unrest witnessed in the National Capital.
There is a popular myth, often fostered by the police itself, that the force requires ‘orders’ from their superiors, i.e. the political executive, in order to ‘act’. In reality, under the law, the police have adequate powers and they do not need any orders from anybody, provided they are ‘aware’ of their powers and have the will to act. A second myth relates to the use of lethal force. The popular notion is that the police need special orders to open fire. Once again, it is not so.
Maintenance of public order ‘primary function’
The media and lay persons often use the terms ‘law and order’ and ‘public order’ interchangeably. However, there is a fine distinction. In Superintendent Central Prison, Fatehgarh v. Ram Manohar Lohia, the Supreme Court held that ‘public order’ is synonymous with public peace, safety and tranquillity. In Dr. Ram Manohar Lohia vs State Of Bihar And Others, the Supreme Court explained the difference between the three concepts of law and order, public order and the security of the state and drew three concentric circles – the largest representing law and order, the next representing public order and the smallest representing security of the state. Every infraction of law must necessarily affect order, but an act affecting law and order may not necessarily also affect the public order. Likewise, an act may affect public order, but not necessarily the security of the state. The court’s judgments in Pushkar Mukherjee & Ors vs State Of West Bengal and Kishori Mohan Bera vs State Of West Bengal made similar distinctions.
In Gulam Abbas & Ors vs State Of U.P. & Ors, the Supreme Court has held that the preservation of public peace and tranquillity is the primary function of the government.
Unlawful assemblies, rioting and police’s inherent powers
An unlawful assembly (popularly known as a mob or a riotous mob) has been defined in the Indian Penal Code (IPC) in Section 141. Rioting has been defined in Section 146 of the IPC. The power to disperse an unlawful assembly by civil force has been provided in Section 129 of the Criminal Procedure Code (CrPC). The words civil force, as against ‘armed force’, means the use of force by the police. The use of ‘armed force’ to disperse unlawful assemblies has been defined in Sections 130 and 131 CrPC. ‘Armed forces’ have been defined in Section 132(3)(a) CrPC as the military, naval and air forces, operating as land forces and includes any other Armed Forces of the Union so operating.
In Akhilesh Prasad vs Union Territory Of Mizoram, the Supreme Court held that the Central Reserve Police Force (CRPF), is also an armed force. Various other paramilitary forces (now officially called CAPF or Central Armed Police Force) are also defined as armed forces of the Union under their respective Acts.
How exactly the legal powers vested in Section 129 are to be used was prescribed in the case of Karam Singh vs Hardayal Singh And Ors. It was held that before any force can be used, three prerequisites are to be satisfied. Firstly, 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. Secondly, such assembly is ordered to be dispersed, and thirdly, in spite of such orders to disperse, the assembly should have refused to disperse. Thus, the police can never have any excuse for not acting or waiting for orders from their superiors or the political executive.
We should note that much-touted words like ‘minimum force’ and ‘maximum restraint’ do not find any place in the judicial pronouncements even if they remain lofty moral principles and find expression in UN Basic Principles for the Use of Force and Firearms, § 13, 14 etc. and conferences of police officers. It is only in Section 130(3) CrPC that we find the words ‘as little force’ and that too in connection with the use of force by the armed forces.
Do police officers always require orders from executive magistrates?
It is a popular misconception that the police need an order from a magistrate in order to act. Section 129 CrPC speaks of ‘Any executive magistrate or officer in charge of a police station or, in the absence of such officer in charge, any police officer, not below the rank of a sub-inspector’. This means that any one of them can order the use of force to disperse an unlawful assembly. One often finds police officers taking a plea that while they wanted to use force, the executive magistrate did not issue orders even though the law does not say that only an executive magistrate can issue such an order. If there is an executive magistrate around, it is generally considered good practice to obtain her or his orders, but it is not stated anywhere that it is mandatory.
On the contrary, police officers would be wrong in presuming that no fault can be found with them if the order to use force or lethal force was duly given by an executive magistrate. In the Nandigram firing case, 14 persons were killed and 162 injured. A division bench of the Calcutta high court held in the case of Association for Protection of Democratic Rights v. The State of West Bengal & Others that the action of the state authorities in directing the police to open fire on the crowd that had gathered at Nandigram cannot be said to be beyond the pale of judicial review, and directed a CBI inquiry.
The British, in their wishful thinking, had presumed that if an executive magistrate and a police officer above the rank of sub-inspector are both present, there would never be a difference of opinion between the two. Luckily, for them, no such piquant situation arose during colonial rule. However, in independent India there have been many instances when they have differed, particularly when it came to firing. One time-honoured solution of the police has been to threaten or coerce the magistrate into signing the order. However, during a judicial commission of inquiry or if the matter goes for a criminal trial, the magistrates have backed out, landing the police in trouble. It has happened several times in Kashmir that the ‘local’ executive magistrate refused to give orders for firing but the police or the ‘outsider’ CRPF/BSF officers fired nevertheless.
Do paramilitary forces require orders from the state police?
Many people believe that even as paramilitary forces such as the CRPF (or its special wing, the RAF-Rapid Action Force) are deployed to assist the state police, they are helpless in taking action by themselves because they are placed under the state police.
The fact is that on July 27, 1976, the Ministry of Home Affairs, Government of India vide a Gazette Notification (No. J. II-9/74-Adm-(Pers-lI/GPA-I), had conferred upon every member of the CRPF of and above the rank of sub-inspector various powers including those under Section 129 CrPC, which a police officer enjoys. This means that where a sub-inspector of the police can act, the sub-inspector of the CRPF can also act.
Grey areas in the law as to when lethal force may be used
If an unlawful assembly can be dispersed with the help of non-lethal weapons, generally there is no problem. The problem arises when lives are lost in firing. Since Section 129 is silent about the quantum of force that must be used, this becomes a vexatious question. People’s reactions to the use of force are both ambiguous and ambivalent depending on the mood prevailing at the time and the hype built by the media. More often than not, the police is accused of deliberate inaction for well-known reasons, such as during the Haryana Jat reservation agitation, Gujjar agitation in Rajasthan, and 2012 Assam Violence, etc.. When they use force at all, they often use it excessively, such as in Mathura etc. In their defence, the police try to pass off inaction as tactful handling of a situation. They also take advantage of the fact that if the victims of the use of excessive force are poor (such as in Mathura), nobody would bother about them.
The right to protest has been upheld in a catena of judgments. Similarly, several judgments have spoken on the ‘reasonable restriction in the interest of public order’. A fundamental problem encountered on the ground is how the people are supposed to know as to what those ‘reasonable restrictions’ are? Is the magistrate supposed to give wide publicity to such ‘reasonable restrictions’? What will happen if they are not announced in advance?
In the case of Acharya Jagdishwaranand Avadhuta etc. v. Commissioner of Police, Calcutta and another, the Supreme Court held that the Anand Margis could not take out a procession carrying daggers, trishuls and skulls and that a prohibitory order under Section 144 banning these was valid. However, what is the police supposed to do, if the people were to carry lathis (strong bamboo sticks) disguised as say, flagpoles? On the other hand, what is the police supposed to do, if the people in the procession were suspected of carrying handguns, grenades, swordsticks, stones or throwing knives concealed within their wearing apparel?
Obviously, it is not possible to frisk everybody present in a procession by hand or make them pass through a metal detector. The police would be responsible if they used lethal force on suspicion alone. In the case of Mechineni Kishan Rao v. Commissioner of Police, the Andhra high court rejected a contention of the police that there was credible intelligence that cadres of the banned organisation People’s War Group could infiltrate into the procession and public meeting of the Telangana Samnvaya Committee, and that is why permission was denied.
An unlawful assembly could indulge in a wide variety of acts:
The law is not clear on the type of force that must be used in various situations. It has been left to the discretion of the officers on the spot, which is naturally subject to judicial review.
The questions that have remained unanswered are:
Who decides exactly how much force must be used?
This has remained one of the trickiest questions and there is no unanimity of opinion amongst various judgments. In the case of Commissioner Of Police And Ors. vs Manoj Sharma And Anr., the Delhi high court ruled, “Once law enjoins a duty upon an officer and gives him power to perform the duty, it gives enough discretion to the officer to take decisions necessary for the performance of his duty… Neither there is a golden scale of quantum of force to be used, nor can such a yardstick be laid down by the Courts. The quantum of force to be used has to be determined by the officer concerned, the Court cannot substitute its own opinion or decision about the quantum of force, which should have been used.”
On the contrary, the Calcutta high court, in the case of Association for Protection of Democratic Rights v. The State of West Bengal & Others held the police firing to be ‘indiscriminate’ even as, in terms of procedures, the police had fully complied with Regulations 150 to 154 of the Police Regulations, Bengal, 1943. The court held that the police firing could not be justified even under the provisions of the Criminal Procedure Code; the Police Act, 1861 or the Police Regulations, Bengal, 1943.
Moreover, the action of the police cannot be protected or justified on the ground of sovereign immunity. The court further held that it is difficult to perceive a situation where, in a crowd of thousands, an officer would be able to single out the targets and identify them for the firing party. The court rejected a submission of the state that a mere gathering of a very large group of villagers would be so intimidating or awesome as to overawe the state or its authorities as required under Section 129 of the CrPC.
Use and abuse of prohibitory orders under Section 144 CrPC
When everything else fails to quell riots, a time-honoured tactic of the police is to impose curfew. Strictly speaking, the CrPC does not have anything called a curfew. Section 144 speaks of orders to abstain from a certain act. Such orders could be of various degrees of severity. Generally, they are called prohibitory orders and, in their most severe form, a curfew.
In Gulam Abbas & Ors vs State Of U.P. & Ors, the Supreme Court had held that the entire basis of action under Section 144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to maintaining public peace and tranquillity. When there is a conflict between the public interest and private rights the former must prevail. In Madhu Limaye vs Sub-Divisional Magistrate, the Supreme Court held that the key-note of the power in Section 144 was to free society from the menace of serious disturbances of a grave character and the section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health.
In Re-Ramlila Maidan Incident Dt … vs Home Secretary And Ors also in 2012, the Supreme Court held that the sine qua non for an order under Section 144 is urgency requiring an immediate and speedy intervention by passing of an order. The order must set out the material facts of the situation. It can be used only in grave circumstances for the maintenance of public peace. The efficacy of the provision is to prevent some harmful occurrence immediately. Therefore, the emergency must be sudden and the consequences sufficiently grave.
In Anuradha Bhasin vs Union Of India in 2020, the Supreme Court reiterated that power under Section 144 should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind so as to enable a judicial review of the same. While exercising the power under Section 144, the magistrate is duty-bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure. Repetitive orders under Section 144 would be an abuse of power. We must keep in mind that locking people up is, at best a temporary measure, and not a solution of any problem.
If the police have the ‘will’ to act and discharge their constitutional obligations of maintaining public order, there are enough powers in the law to enable them to do it effectively anytime, anywhere. Yes, there are certain grey areas in the law; however, in a fair system, in the worst-case scenario, they can be accused of an error of judgment, not error of intention. Overall, there is no excuse for police inaction under any circumstances.
N.C. Asthana, a retired IPS officer, has been DGP Kerala, a long-time ADG CRPF and BSF and also IG, Rapid Action Force. Views are personal. Read More