SHOOT FIRST AND ASK QUESTIONS AFTERWARDS: Attitude of police while using force to disperse unlawful assembly

by Ritika Goyal     7 July 2020

Setting the factual context:

With the eruption of worldwide protests against death of George Floyd and recent Thoothukudi police custodial death of Jayaraj and Bennicks, debate regarding police brutality has become major headline once again. Criticising police brutality in US only (as done by many) would be like throwing stones at others while living in a glass house, given the fact that police brutality is a stark reality in India too. Not long back, it reached an all time high during the anti-CAA protests. News reports came from various parts of the country depicting that excessive force was used against the protestors with incidents of indiscriminate lathi charge leading to death of an 8 year old child.

Furthermore, a briefing paper, published by International Commission of Jurists, indicated that even bystanders were shot in the head and many people suffered multiple fatal injuries. Due to the use of excessive lethal force, total deaths rose to 70. A fact finding team led by Harsh Mander reported that a protesting student suffered from brain haemorrhage and another’s hand had to be amputated due to the injuries sustained from a stun grenade. Human Rights Watch also reported that Indian police officials were using ‘unnecessary deadly force’ to silence the dissenters. On 27th June, National Human Rights Commission (NHRC) released a report and while discussing the use of disproportionate force by the police, it stated that unnecessarily canning of students inside the library was “avoidable”. It also noted that the recovery of tear gas shells inside the library was “an irresponsible action of the police and could have been avoided.” Further it states these incidents had no bearing on the task of controlling law and order.

While it’s pertinent to prosecute violent protestors, it is equally important to make sure that the police are not given a license to use more than necessary force. As per section 129 of Code of Criminal Procedure, 1973, the power to use the force for dispersal of an unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, has been given to 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. However, the Code doesn’t define to what extent this ‘force’ can be used. It is silent about the quantum of force that should be used while controlling the unlawful assembly.

According to Code of Conduct for the Police in India (MHA), Standard Operating Procedures (SOP) for Crowd Control and Model Rules on the Use of Force by the Police against Unlawful Crowds (Adopted by the Inspectors General of Police Conference, 1964, principle of ‘minimum force’ should be opted while dispersing unlawful assembly. Through judicial pronouncements and State police manuals too, it can be made certain that excessive force should never be used, however there is still ambiguity as to what can constitute ‘minimum force’. This vagueness gives immense powers to police officials to exercise force according to their whims and fancies.

Interpreting ‘Excessive Force’ through Court’s lens:

Supreme Court in the case of Anita Thakur v. Government of Jammu & Kashmir, held that fundamental rights under article 19 of the Constitution are violated whenever police uses excessive force to disperse the unlawful assembly. The Court emphasized on striking a balance between dispersal of unlawful assemblies and use of force with utmost care, deftness and precision. While it is important to restore law and order, force beyond what is absolutely essential, cannot be used. However, in this case, the police continued to lathi-charge even after controlling and overpowering the mob.

In re Ramlila Maidan v. Home Secretary, no guidelines were followed while firing the teargas shells.  Teargas shells should be fired away from the crowd however in this case, they were fired into the crowd. CCTV cameras showed that police indulged in unnecessary lathi charge and threw stones on the public. Four members of the police surrounded single individual and then used canning against him. Therefore, the Court held the police officers were guilty of excessive use of force. In Association for Protection of Democratic Rights v. The State of West Bengal, the Calcutta High Court held that police officials indulged in ‘indiscriminate firing’ when it open-fired on the assembly of farmers who didn’t cause any danger to the life of any police personnel. Firing can only be used as the last resort however police officials didn’t abide by it.

Elucidating the quantum of force through State Police Manuals:

While deciding the cases related to minimum force, the Supreme Court has often taken recourse to the State Police Manuals. Since the Constitution of India puts ‘Police’ in the List II of Schedule VII[1], it becomes a matter of State Legislature and therefore, this ‘force’ has been interpreted in the Police Manuals of respective states. Some common principles have been implicated in the different Police Manuals. If these are not followed, then the use of force would amount to ‘excessive force’:

  1. 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. Firearms are used only in extreme and very exceptional circumstances where there is imminent and extreme danger to life and property.
  2. Rapid fire is considered wild and wasteful and demoralizing, therefore it should be avoided.
  3. Firing should not be directed as persons who do not form part of the assembly.
  4. Blank cartridges, buck shots and warning shots in the air are completely prohibited.
  5. Firing in the air or over the heads of rioters is prohibited as it leads to greater loss of life.

Furthermore, Bureau of Police Research and Development (BPR&D) has also released a Model Police Manual and it contains more comprehensive provisions regarding the dispersal of unlawful assembly. It states that while dispersing crowd, principle of ‘no more force and no longer than necessary’ should be kept in mind by the officials. The same has been elaborated by the following rules:

  1. Warning should be given to the mob in a clear and distinct manner by use of loudspeakers or megaphones.
  1. Firing should be well controlled and the number of rounds should always be indicated.
  2. Firing with live ammunition should be directed against the most threatening part of the crowd, the aim being kept low.
  3. Firing should cease the moment it is no longer necessary. Firing should cease the moment the rioters show signs of dispersing.
  4. All help should immediately be rendered to tend or convey the wounded to the hospital.

A research study done by Observer Research Foundation found that there have been many instances when lathis, batons, water cannons and teargas were used in an excessive and harsh manner to disperse an unlawful assembly. Whenever a call for lathi charge is made, police tend to execute it haphazardly which often results into high casualties, as we saw in the case of CAA protests. When pellet guns are used indiscriminately, it spreads out randomly and increases the likelihood of hitting the bystanders. Therefore, there is a need to include more specified rules regarding use of these tactics, so that the police are compelled to restrict the use of force.

 

Reforming Police Manuals:

Most of the State police manuals are old, outdated and archaic. Comprehensive police manuals are necessary for efficient police performance, however the existing ones are quite unsatisfactory. They are rarely reviewed, revised and updated. While they have certain provisions reading dispersal of unlawful assembly mentioned in the BPR&D Model Police Manual, nevertheless there is a need to revise these manuals in light of the various changes and developments taking place in criminal realities such as increased use of lathi charge, tear gas etc.

In another report of BPR&D tiled “Development and Testing of Effective Non-lethal Weapons/ Technologies and Tactics for Countering Public Agitation with Minimum Force”, use of less lethal weapons was examined. The study states instances in which use of tear gas, plastic pellets could turn lethal and exceed the ‘minimum force’ requirement. Therefore, there is a need to incorporate these rules in the police manual:

  1. Tear gas gun which is used to fire the shells can be lethal if it is fired from close range.
  1. Paper cartridges can be lethal if fired at a distance of less than 60 meters (thus the minimum distance of firing should be set as 60 meter). In addition, it can be lethal on children.
  2. The plastic pellets can lead to excessive force when directed towards sensitive areas like eyes, head etc.
  3. Lathi blows should be aimed at soft portions of the body and contact with the head or collarbone should be avoided.
  1. Anti-riot guns if used to fire blank cartridges which could be lethal.

Concluding Remarks:

While it is acknowledged that in the practical and overwhelming situations, it is not always possible to keep the above-mentioned points in mind and to follow them accurately but this is what police trainings and riot-drills are for. Furthermore, India is also a signatory to United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials which 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. The three principles of ‘necessity’, ‘proportionality’ and ‘precautions’ should be used by them.

[1] Refer to Entry I.

 

Ritika Goyal is a B.A.LLB student at National University of Study and Research in Law (NUSRL) Ranchi. She has profound interest in International Human Rights Law and matters concerning public policy. Currently, she is Research Assistant to Ms. Maja Daruwala (Senior Advisor, Tata Trusts and CHRI). She can be reached at ritika.goyal42@gmail.com

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