Monday, April 6, 2020

Guest Post: When Might is Not Right — Police Violence and the Coronavirus Pandemic

(I am pleased to present a guest post by Shukr Usgaokar, a Fourth Year Law Student at the V.M. Salgaocar College of Law, Goa)

Since the imposition of a lockdown by the Central Government and State Governments all across India to contain the spread of Covid-19, several press reports have emerged showcasing brutalities resorted to by the authorities. Violators of the apparent “curfew” have been made to crawl on the street, do sit-ups, suffer lathi-charge, or were simply beaten black and blue by police officers. Some have argued that these are isolated incidents; others have justified such forms of punishment as a necessary-evil if the lockdown is to be effectively implemented to contain the spread of Covid-19. But the question which arises regardless is whether this use of force by the police is permissible under law, and if so, what is the magnitude of force which the law enforcement agencies are entitled to use.

No arrest, no force
Since law and order is a state subject, different states have enacted different statutes to regulate their respective police forces. The Police Act, 1861, is silent on the issue of whether and if so, under what circumstances the police officers are justified in using force while discharging their duties. The only provision that could serve as a source of power is Section 23, which simply provides that it is the duty of police officers to inter alia "detect and bring offenders to justice". 

The Code of Criminal Procedure, 1973 [Cr.P.C.] is more explicit. Section 46(2), entitled “Arrest how made”, states that if the person who is to be arrested forcibly resists the endeavour to arrest him, or attempts to evade arrest, the police officer (or any other person) may use all means necessary to effect arrest. But the corollary of this provision would be that all means necessary, which would include force, are to be used only while making an arrest and that too only when the person who is to be arrested either resists the arrest or attempts to evade it.

Controlling frenzied mobs
Along with investigation of offences, the police in India have the additional function of maintaining law and order which is detailed under the 1973 Cr.P.C. Section 129 of the Cr.P.C., as the title suggests allows a police officer to use force to disperse an assembly. But there are, again, limits on how this power can be used. In Karam Singh v. Hardayal Singh [1979 Cr.L.J 1211], for instance, the Punjab & Haryana High Court culled out the three essential requirements that are ingrained in Section 129:

  1. 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 public peace.
  2. An executive magistrate should order the assembly to disperse.
  3. In spite of such orders, the people do not move away.

Thus, arguably, the pith and substance of Section 129 is that force is to be resorted to as a last resort, when the crowd, which in the opinion of the Magistrate is about to disturb public peace, does not disperse, even after it is ordered to do so.

The other source of power is, obviously, Section 144 of the Cr.P.C. read together with Section 188 of the Indian Penal Code. Section 144 orders can be passed by Executive Magistrates (which includes the High-Ranking Police) to prohibit all kinds of conduct for up to 2 months, and then the defiance of such orders is rendered punishable under Section 188 of the Penal Code. Much like Section 129, the use of Section 144 also requires that certain preconditions must exist [Most recently elaborated upon by the Supreme Court in Anuradha Bhasin [Writ Petition (Civil) No. 1091/2019 (Decided on 10.01.2020)]. 

Even if we assume that a valid 144 Order has been passed, it must be established that the existence of such orders is communicated to persons, without which their so-called defiance can't be penalised. But in the present scenario, can it really be said that the orders were explained or communicated in all cases where the police went ahead to forcefully apprehend "violators"? 

How much is too much?
It might be the case that the though the use of force is justified, the quantum of force used is not. Paragraph 4 of The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials which were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba in 1990 enjoins the law enforcement officials to use, as far as possible, non-violent means before resorting to the use of force and firearms. 

Even when the use of force becomes unavoidable, paragraph 5 mandates that they should exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved while minimising damage and injury. The Code of Conduct for the Police in India which was formulated at the Inspector Generals of Police Conference in 1961 has been cited with approval in P. V. Kapoor v. Union of India [1992 Cr.L.J. 128 (Delhi)] and states that while maintaining law and order, the police should as far as practicable use methods of persuasion, advice and warning and when the application of force becomes inevitable, only the absolute minimum required in the circumstances should be used. 

This view was reaffirmed more recently by the Supreme Court in Anita Thakur v. Union of India [(2016) 15 SCC 585] where it was held that even when it is the agitating protesters who start pelting stones on the police, use of excessive force and misuse of power by the police amounts to not only a violation of human rights and human dignity but can give rise to liability in civil and criminal law. 

Even the imposition of Section 144 of the Cr.P.C., as has been done in several districts to enforce the lockdown, cannot serve as a licence for unchecked, violent, police action. Though the Supreme Court in Ramlila Maidan [(2012) 5 SCC 1] upheld the imposition of Section 144, it ordered disciplinary action as well as registration of criminal cases against the all the erring police personnel who had resorted to brick-batting, lathi charge and excessive use of tear gas shells upon the crowd.

It is pertinent to note that the above cases deal with action taken by the police to suppress unruly and violent mobs. It is obvious that an even lesser degree of force would be called for while arresting an offender, which is an investigative function of the police. Useful in this regard is reference to the test laid down by United States Supreme Court in Graham v. Connor [490 US 386] in 1989, which held that the officer’s actions must “objectively reasonable in the light of the facts and circumstances confronting them, without regard to their intent or motivation.”

Wits, not Fists
It is abundantly clear that the conduct of the police authorities has been grossly disproportionate and amounts to a flagrant violation of human rights of those who were at the receiving end of such treatment. As mentioned above, disobeying curfew orders can be an offence under Section 188 of the Penal Code in some cases. But even then, the correct course of action would have been to arrest the curfew violators and release them on bail since that offence is cognizable and bailable and prosecute them according to the law when normalcy is restored, rather than dish out instant justice. 

If video-clippings are to be gone by, the curfew violators were unarmed, did not attempt to evade or resist arrest. However, the police officers have, without giving any warning and in some cases without even making an arrest, mercilessly assaulted the purported offenders. 

It is disheartening to note that authorities are treating a health emergency and humanitarian crisis as if it is a law and order problem. Even if the situation is somehow brought under the purview of section 129 of the Cr.P.C, the actions of the police amount to throwing every pre-requisite to the wind. The rightful conduct would have been to order people to disperse and stay at home, if at all there was a gathering of people, the dispersal of which was necessary to prevent them from contracting the infection.

The police officials must keep in mind that citizens are not violating the curfew because they want to or because they are desirous of getting infected with the Coronavirus. They are compelled to do so in order to buy groceries, medicines and other essentials, particularly when the performance of the home delivery service has been less than satisfactory. 

Under such circumstances, the police authorities ought to show restraint, empathy and a co-operative attitude towards the citizenry rather than indulge in high-handed behaviour and unprovoked hostility. The fact that the curfew is necessary to break the chain of transmission of Covid-19 and has been imposed for the own good of the people is no excuse to use force since as per Graham’s case (supra), the intention of police is immaterial and what must be seen is whether the conduct was objectively reasonable under the circumstances. However, it would become apparent that their conduct has been anything but reasonable with even those who were exempted from the curfew such as doctors, delivery personnel and pedestrians bearing the brunt of the viciousness of the police.

This flies in the face of Article 5 of the Universal Declaration of Human Rights which says that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Referring to this, the Supreme Court in the celebrated case of D. K. Basu v. State of West Bengal [AIR 1997 SC 610] held that expression "life or personal liberty" in Article 21 includes the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries.

Way back in 1981, Justice V. R. Krishna Iyer commented that “Police rely more on fists than on wits, on torture more than on culture…Nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights”. Nearly 40 years later, it would appear that not much has changed.

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