By Nishtha Gupta
“The safety of the people is the supreme law.”
-Markus Tullius, Roman statesman and lawyer
The Indian state has recently faced the world’s largest lockdown wherein 1.6 billion people have been subjected to an unprecedented lockdown. This has obviously led to a certain protest in terms of people not following the lockdown and appearing on the streets. Many migrant labourers are facing immense food shortages and they are going back to their villages in the belief that their needs will be met there. On the other hand, there are people in cities who have been coming out on the streets to stock up their homes or for other consequential reasons. Amidst these incidents, there have been incidents where the police have been resorting to the use of force to prevent people from coming out on the streets. The police have been facing immense pressure to ensure complete lockdown and to not resort to use of force to implement these orders.
THE CRITICISM OF POLICE ACTION
The most common criticism of this use of force is that it is without any legal backing. There are multiple articles that talk about the police hitting people with the sticks. They have been critical of the police resorting to use of force while attempting to manage the crowd on streets. As per the Criminal Procedure Code of India, the police can resort to the use of force only when an unlawful assembly refuses to disperse. The a priori condition is the order of an executive magistrate asking the police to disperse an unlawful assembly by use of force. Unlawful assembly has been defined in Sec 141 of the Indian Penal Code. The section mentions that “An assembly of five or more persons is designated as unlawful assembly if the objectives of this assembly is either- 1. To overawe by use of force a public servant, 2. Resisting execution of law, 3. Committing mischief or trespass, 4. To obtain enjoyment of right of another by the use of criminal force, 5. Compel a person by use of criminal force to do what he is not entitled to do”. According to Sec 129 of the CrPC such an assembly can be ordered to disperse only on the orders of an executive magistrate or the officer in charge of police station (and in his absence an officer not below the rank of sub-inspector). The police can use force only when the unlawful assembly (likely to disturb public peace) refuses to disperse upon being commanded to do so. Sec 130 requires that the officer to use the least force required. The requirements have been spelt out in the Padmanabha Bheya case. In recent cases the police have used force on individuals rather than unlawful assemblies. The large number of news reports and clips on media, show the police using lathis to beat up people who are coming out of their houses either on two wheelers or on foot. This is clearly not encompassed under the act. The police are not legally allowed to hit individual persons walking on streets. The court has held in the case of Anita Thakur that the use of the lathi charge by the police can be justified in cases the conditions mentioned in Sec 129 are satisfied. It was also held in the case of Ramlila Maidan vs. Home Secretary that such illegal actions on part of the police have “elements of criminality”. The court should take action against such use of force by the police. This shows that lathi charge has even gone to the extent of being considered a crime in the state of India in certain situations. The UN Policy on the Use of Force and Firearms by enforcement Officials has been critical of such actions by the Indian Police.
JUSTIFYING THE ACTION BY POLICE
What we are essentially forgetting is, in such critical times of the corona crisis, there is a need to make these actions by the police force justifiable to some extent. There are certain defences to such actions that our law provides. The Indian Penal Code in Sec 81 has rendered the general exception of necessity acceptable in cases of crimes committed. It states“Nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it be done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property.”To avail this defence the three conditions are to be satisfied- 1. The act must be committed without criminal intent, 2. The act should be exercised in good faith, 3. The act must be committed to prevent larger harm. The only exception to it is that the act must not be for self-preservation. This was reiterated in the case of Dudley Stephen.
While the case of police beating the individuals on the streets is considered, the intention behind their acts has to be seen. In most of these cases, there is no criminal intent behind such acts. The act is being committed for the larger good of the public. The intent is clearly to minimise the spread of the virus in the country by disallowing public to come on the streets. They are acting to govern unruly individuals who refuse to self-regulate and do not realise the importance of the lockdown. When we have a section of society which strongly believes that they are immune to the attach of such a virus and prefer continuing with their routine practices under their faiths, like the one in Delhi, we cannot expect the law enforcement agencies to not take actions against these people. A large section of the Indian public still does not understand the gravity of the situation. In this health emergency, proportionate and justified use of force should be considered as an alternative recourse. In most of these cases, the actions taken by the police survive the test of the defence of necessity that prevents such actions from being put under the category of an offence.
The Constitution of India in Article 19 has given the right to assemble peacefully and freely without arms. It also allows citizens to travel freely across the country. Article 21 provides the right to life and personal liberty to all its citizens. This is used as a common counter assertion to the use of force by state agencies since the lockdown has taken away these rights. However, we must bear in mind that these fundamental rights come with reasonable restrictions. The sub-clause (2) provides that the state can create reasonable restrictions for public safety and security of the nation.
The health emergency in the present times is crucial from the point of view of public safety and health. The police action that furthers the security of the nation is justified when used proportionately. It must be ensured that sufficient warning is given to the people about the guidelines issued by the Government. However, when these rules are not adhered to and the public safety is compromised, the use of force by police that is nolens volens can be resorted to. The unlawful use of force is definitely required to be punished and is not acceptable in a democracy. However, exceptions should be carved in situations of need or else the entire purpose of the law would be rendered futile. The beauty of the law lies in its ability to adapt and be flexible to the novel cases that come before it. The law does not work in practicality when pigeon holes are created. Every case is different and the law has to be flexible in order to accommodate such actions in these circumstances.
[The author is a student at NALSAR University of Law, Hyderabad.]