As a concerned citizen of India I feel bad when in a democracy, people are lathicharged and tear gas is used against people protesting peacefully without arms. Everyone under Indian constitution has a right to assemble peacefully without arms.1 The persons protesting against Government Policies are not hooligans or gundas who should be lathicharged. They are prostestors who want a change in policy, who needs justice. Our Government has to understand that in a democracy people voice is supreme and even constitution preamble starts with the word “WE THE PEOPLE’ which means that PEOPLE’s will is supreme.
The use of tear gas by police is really unfortunate during protests. Order 152 of Police rules2 provides that “A regular warning by the officer should be issued while firing the tear smoke shells” but it is seldom followed. Innocent people get injured during India gate protests Who is liable for there injuries. They are not asking something for them. They are public spirited individuals who want peace in society.
Also the application of Section 144 Cr.PC sometimes creates a lot of questions regarding police functioning in India. When Section 144 Cr.PC3 can be imposed:
On the bare reading of the language of Section 144 Code of Criminal Procedure, it is clear that the entire basis of an action under this Section is the ‘urgency of the situation’ and the power therein is intended to be availed for preventing ‘disorder, obstruction and annoyance’, with a view to secure the public weal by maintaining public peace and tranquility. In the case of Gulam Abbas v. State of Uttar Pradesh4, the Court clearly stated that preservation of public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the executive. In a given situation, a private right must give in to public interest.
Article 355 of the Constitution5 provides that the Government of every State would act in accordance with the provisions of the Constitution. The primary task of the State is to provide security to all citizens without violating human dignity. Powers conferred upon the statutory authorities have to be, perforce, admitted. In H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur and Ors. v. Union of India6, Court held that even in civil commotion or even in war or peace, the State cannot act catastrophically outside the ordinary law and there is legal remedy for its wrongful acts against its own subjects or even a friendly alien within the State.
The citizens/persons have a right to leisure; to sleep; not to hear and to remain silent. The knock at the door, whether by day or by night, as a prelude to a search without authority of law amounts to be police incursion into privacy and violation of fundamental right of a citizen.7
The incidence of lathicharge and use of Tear Gas is mostly seen during protests . Even during Baba Ramdev agitation Delhi police used all force against innocent people and court issued following directions.
Directions of Court in Right to Sleep Case against officials involved in lathi charge.8 Court directed the State Government and the Commissioner of Police to register and investigate cases of criminal acts and offences, destruction of private and public property against the police officers/personnel along with those members of the assembly, who threw bricks at the police force causing injuries to the members of the force as well as damage to the property, issued the following directions:
a. Take disciplinary action against all the erring police officers/personnel who have indulged in brick-batting, have resorted to lathi charge and excessive use of tear gas shells upon the crowd, have exceeded their authority or have acted in a manner not permissible under the prescribed procedures, rules or the standing orders and their actions have an element of criminality. This action shall be taken against the officer/personnel irrespective of what ranks they hold in the hierarchy of police.
b. The police personnel who were present in the pandal and still did not help the evacuation of the large gathering and in transportation of sick and injured people to the hospitals have, in my opinion, also rendered themselves liable for appropriate disciplinary action.
c. The police shall also register criminal cases against the police personnel and members of the gathering at the Ramlila ground (whether they were followers of Baba Ramdev or otherwise) who indulged in damage to the property, brick-batting etc. Court also ordered that police shall complete the investigation and file a report under section 173 of the Code of Criminal Procedure9 within three months.
It is high time that police and government has to understand that peaceful protestors have right to assemble and raise there voice against injustice in the society as it is rightly said “Injustice anywhere in the society is a threat to Justice Everywhere”
(1) All citizens shall have the right
(b) to assemble peaceably and without arms;
Standing Order 152 deals particularly with the use of tear smoke in dispersal of unlawful assemblies and processions. This Standing Order concerns with various aspects prior as well as steps which are required to be taken at the time of use of tear smoke. It requires that before tear smoke action is commenced, a suitable position should be selected for the squad, if circumstances permit, forty yards away from the crowd. A regular warning by the officer should be issued while firing the tear smoke shells, the speed of wind, area occupied by the crowd and the temper of the crowd, amongst others, should be taken into consideration. It states that apparently the object of use of force should be to prevent disturbance of peace or to disperse an unlawful assembly which threatens such disturbance.
Section 144. Power to issue order in urgent cases of nuisance or apprehended danger.
In cases where, in the opinion of’ a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material fact of the case and served in the manner provided by section 134, direct any person 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 tranquility, or a riot, or an affray.
355. Duty of the Union to protect States against external aggression and internal disturbance It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution
Section 173 Report of police officer on completion of investigation.
(1) Every investigation under this Chapter shall be completed without unnecessary delay.
(2) (i) as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) The names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, whether with or without sureties;
(g) whether he has been forwarded in custody under section 170.
(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any by whom the information relating to the commission of the offence was first given.
(3) Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.
(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
About the Author
Kush is a practicing lawyer at Delhi High Court. He graduated from Rajiv Gandhi National University of Law, Punjab, India in 2012 and has authored a book titled – Be Your Own Lawyer.