Guest Post: Indian Prisons, Workshops of Atrocity?

(This is a guest post by Vanshika Jain)

It is well recognised that the aim of criminal law is to preserve law and order in society, promote peace and punish those who violate a legally established order, which can be achieved through the establishment of a system of prohibitions, sanctions and procedures to deal fairly and appropriately with culpable conduct that causes or threatens serious harm to society. 

A punishment can be simply defined as a means of inflicting pain on the offender for transgression of law, to serve one of the purposes of retribution, deterrence, reformation or prevention, most common form being incarceration. This includes the deprivation of liberty and freedom of the offender for a certain fixed amount of time which can even extend to life and in rare cases, to death depending on the severity of offence and the individual circumstances.

The Indian Criminal Jurisprudence believes in reformation of offenders who while serving their sentences inside prisons can be cultivated into better individuals. This is essential as the person who is now inside the prison has to come out someday and if he is not reformed, he could be a greater source of troubles for the society. 

As Oscar Wilde says, ‘Every saint has a past and every sinner has a future’, a prisoner should be reformed so that he can prove to be a better citizen of this country. But is India doing enough for reforming criminals? Does the conditioning inside prisons promote rehabilitation? What are the living conditions of these people? Are their basic human rights guaranteed?

Indian prisons suffer from multitudinous problems, which can be categorised under various heads such as that of infrastructure, shortage of staff, conditions of women prisoners, violence among the inmates, security lapses which had led to jail breaks previously, health and sanitation facilities and the callous attitude of jail officials towards their responsibilities. This article would highlight the issues of under trial prisoners whose basic constitutional rights stand violated; the living conditions of women prisoners and most essentially the children who live with their incarcerated mothers inside the prisons.

Under trial prisoners languishing in Jails

In 1996, when a Delhi Police team bundled him into a car in Kathmandu, Nepal, Mohammad Ali Bhat was just 25. Bhat, who hailed from Kashmir, was working as a shawl trader in the Nepalese capital. From there, he was taken to Delhi, made an accused in the Lajpat Nagar blast case, and later taken to Rajasthan and named as an accused in the Samlethi blast case. This ensured that he spent years in jails in Delhi and Rajasthan.

On July 22, 2019, the Rajasthan High Court declared Bhat to be innocent. Found "not guilty" at 48, Bhat had lost 23 prime years of his life to prison due to India's lethargic justice delivery system.

There are hundreds of such instances which can be mentioned. Such is the plight of prisoners who are under trial and waiting for that one day when they would be judged innocent and thus justice would be served. To understand this issue, it is crucial to have a look at the recent reports of Prison Statistics India, brought out by National Crime Records Bureau in 2018. The proportion of under trial prisoners in India was almost 70% of the total number of those imprisoned, their number during the last decade increased by 25.4%. 

 

High proportion of under trials in the overall prison population may be the result of unnecessary arrests and ineffective legal aid during remand hearings. It is also observed that maximum number of under trial prisoners belong to a downtrodden and backward section of society who continuously struggle to make their ends meet in their daily lives. More than 65 per cent of under trial prisoners in India belong to the Scheduled Castes (SC), Scheduled Tribes (ST) and Other Backward Castes (OBC).

Greater wealth generally allows for more effective representation; it is because of their financial constraints that they fail to hire competent advocates who can successfully file and get bail for them. Even if they get bail, they are unable to afford the bail fee. While our Constitution tries to eradicate this evil by recognising ‘Right to Free Legal Aid’ as a Directive Principle of State Policy under Article 39A, the situation remains dark.

There is a gap between the number of prisoners eligible to be released and actually released, under Section 436A of the Code of Criminal Procedure 1973 (CrPC). This section allows under trials to be released on a personal bond if they have undergone half of the maximum term of imprisonment they would have faced if convicted. In 2016, out of 1,557 under trials found eligible for release under Section 436A, only 929 were released. Also, research by Amnesty India has found that prison officials are frequently unaware of this section and unwilling to apply it.

Their misery does not end here, what adds to it is the inequality which they face on account of their economic conditions. Our constitution guarantees Equality before Law under Article 14 but this is one Fundamental right which is violated the most inside prisons. In their book, Black Warrant: Confessions of a Tihar Jailer, authors Sunil Gupta and Sunetra Choudhury mention about  prisoners who are extremely rich, affluent belonging to an elite society, enjoying the same luxurious lifestyle in the prison as they would have, had they not been there. Some are real estate owners or developers, politicians and what not. While the poor, who are still under trial, many of whom might have completed their sentence if it would have been awarded still continue to suffer only because of lack of wealth or power; the wealthy ones would even travel out of the jail as and when they liked that too to different cities.

Conditions of Women Prisoners and their Children

As per the most recent data available from the report Women in Prisons published by the Ministry of Women and Child Development, Government of India, there are 4,19,623 persons in jails in India. Women constitute 4.3% of this figure, numbering a total of 17,834 women. These are the official figures. Of these, 66.8% (11,916) are under trial prisoners.

There is a lack of female staff in prisons in the country which often leads to male staff becoming responsible for female inmates. This is highly undesirable since women inmates need gender-specific services that should be provided by female staff.

According to Commonwealth Human Rights Initiative, women in some jails are not provided with sanitary napkins for which they have to buy their own, rely on their families or use a cloth. No one would be oblivious of the fact that there has been a lot of awareness about menstrual hygiene and how detrimental it is for a women's reproductive system to not to use sanitary napkins. While many girls and women in our country still cannot afford sanitary napkins, conditions of Indian women prisoners is even worse.

According to extant regulations, a child up to the age of six years can stay with his imprisoned mother. There is certainly no harm in preferring the children to stay with their mothers rather than separating them. But, at the same time one needs to keep in mind the mental state of such a child whose early years are spent inside prisons and therefore this calls for establishing recreational facilities for their social, emotional and physical well being. The impact of their mothers’ imprisonment not only affects them but also their relationship with their mothers. 

Certain steps have to be taken so that these children can easily integrate with the society and don’t feel like outsiders once they are out. A field action project conducted by the Tata Institute of Social Science revealed five major problems – firstly, the prison environment hindered the growth and development of children. Secondly, most children never experience a normal family life. Thirdly, socialising patterns got severely affected due to the prison life. Fourthly, children were unsettled due to the constant transfer from one prison to another. Finally, the children in the prison showed violent and aggressive tendencies.

The Supreme Court has laid down guidelines for the holistic development of such children in R.D. Upadhyay v. State Of A.P. & Others [2006 (4) SCALE 336] wherein it said that children living with parents in prison should not be treated as a convict or under trial. They should be entitled to food, shelter, medical facilities and other basic rights. Also, children shall be permitted to stay in the prison with their mother until the age of six. After this, they will be transferred to the surrogate of the mother’s choice or a suitable institution run by the Social Welfare Department. Such children shall be kept in protective custody either until the release of their mother or till they are old enough to earn a livelihood. The children shall be given proper education and recreational opportunities in prison. Children till the age of three shall be looked after in a day care centre, and children above the age of three shall be placed in a nursery.

Often women prisoners with children remain in jail simply because no one can provide the sureties required to release them on bail, or their terms are extended due to lackadaisical prison administration. There are few allowances, such as a separate diet or baby care items, for women imprisoned while pregnant or breastfeeding. Pregnant prisoners should be provided with the same level of health care as is provided to women not in prison, including access to obstetricians, gynaecologists if required, and midwives or birthing practitioners appropriate to their culture.

Every Cloud has a Silver Lining

Kalu Tulsiram , 35, a bespectacled, serious-looking man, brews tea at a stall near the Udaipur central bus depot. A few metres away, Deepak Lalaprasad, 33, heavier built, helms another stall, waiting for a customer. Casual passersby or customers could never guess that these two men were convicts serving life sentences under Section 302 of the Indian Penal Code of 1860, for murder.

A laudable step towards humanising prisons is the concept of Open Jails. The United Nations Standard Minimum Rules for the Treatment of Prisoners, popularly known as the Nelson Mandela Rules, laid down the objectives of open prisons stating, that such prisons provide no physical security against escape but rely on the self-discipline of the inmates, providing the conditions most favourable to the rehabilitation of carefully selected prisoners. 

According to the Rajasthan Prisoners Open Air Camp Rules, 1972, open prisons are, “prisons without walls, bars and locks.” Inmates in Rajasthan’s open prisons are free to go out of the prison after a first roll call and have to return before the allotted second roll call. The jail does not confine them completely but requires them to earn their living to support their families, living with them inside the jail. As many as 1,127 prisoners in 29 open jails in Rajasthan work as accountants, school teachers, domestic help and security guards, even those serving time for murder.

Certain prison reforms are crucial in refining the justice system

The above mentioned issues portray a sordid picture and one is compelled to ponder if prisons are ever paid attention to. Certainly not the amount it needs, majorly because the prisoners do not enjoy voting rights and hence the political class does not feel motivated enough to work in that sector. 

Borrowing words from Justice Krishna Iyer “In our world, prisons are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from driftwood juveniles to heroic dissenters”. Certain prison reforms are crucial in refining the justice system. 

'Prisons/persons detained therein' is a State subject under Entry 4 of List II of the Seventh Schedule to the Constitution of India. So administration and management of prisons is the responsibility of respective State Governments. Hence, it is high time that prisons are given high budgetary priority in the budgets for providing efficient legal aid to under trials and appointment of female staff for women prisoners. 

Regular visits of social workers, researchers and most importantly, district judges should be scheduled so that judiciary can take suo motu cognisance of those areas upon which the government has failed to work.  

Since pretrial detention has become a major source of injustice for under trials, it is high time that the access to legal aid (which is a directive principle to state policy under Article 39A) should be made a fundamental right. The Magistrates should be aware and vigilant enough of their duty of assigning a pleader for the accused at the state’s expense under Section 304(1) CrPC failing which they are liable for departmental proceedings (as was observed in Kasab v. State of Maharashtra, Criminal Appeal No. 1961 of 2011).

Above all, the aim of sending an offender to a jail is rehabilitation and ensuring that the offender can integrate with the society after his release. For this, various skill development programs should be introduced so that these prisoners can earn better. Also, wages that are paid to prisoners should be increased and be on par with global benchmarks, so that when they come out, they have some better finances. 

The inmates and jails officials should be continuously applauded and motivated for their work. The initiative of Dr. Vartika Nanda, an Indian prison reformer is worth mentioning. She has come up with the idea of awards for inmates, Tinka Tinka Awards wherein two kinds of awards are being organised. Both awards are aimed at encouraging the creative skills and humanitarian work among inmates and the jail staffs. One such award is given in 2018 to a 36-year-old murder convict, serving life imprisonment in Model jail at Burail, Chandigarh. As per Burail jail officials, Vasudev was nominated for his extremely dedicated work in the kitchen. The jail authorities said since he was convicted and brought to the prison, he had been looking after the kitchen without taking any leave, even when he fell sick.

But above all what needs to be noted is that a lot of committees have been constituted by the government for recommending prison reforms, the latest being Justice Amitava Roy Committee of 2020. There is no dearth of recommendations but what is needed is effective implementation. One committee could be set up solely for looking into the fact of how many recommendations previously given have actually been implemented and it is only then that India’s prisons could be humanised.

India has portrayed itself often as a champion of human rights causes all across the world. Alas, the dismal condition of Indian prison reflects the paradox that exists within the Indian criminal justice system itself. 

Guest Post: Examining the Proposed Uttar Pradesh Special Security Force

(This is a guest post by Vaishnavi Prasad. Please note that the author’s analysis of the functioning of the force is based on press statements by public officials on the issue as the official state notification regarding the Uttar Pradesh Special Security Force has not yet been released. This post may be updated / supplemented once the notification is made public.)

On 13 September, the Additional Chief Secretary to the Government of Uttar Pradesh informed reporters that the State Government has given orders for the constitution of a special security force. The Uttar Pradesh Special Security Force is meant to provide security to the high court, district courts, administrative offices and buildings, metro rails, airports, banks, financial institutions, educational institutions and industrial units. However, the defining feature of this force is that it has the powers to arrest and search individuals without any warrant or the orders of a magistrate. The basis for this force is allegedly an order from the Allahabad High Court in December, 2019. In this piece, I will examine that order and the validity of such a force.

On 17 December, 2019, three men opened fire in the Court of the Chief Judicial Magistrate in Bijnor. The Allahabad High Court immediately took suo moto cognizance of this incident. The Bench recognised that this was not an isolated incident and over the past few years, similar incidents had taken place in various district judgeships. They recommended certain steps to ensure security in these district judgeships which included the following:

“(4) A specialized well-trained force be provided for the purpose of maintaining security in District Judgeships throughout the State of U.P. and whenever required, personnel from that Force may also be deployed in this Court along with existing security provided by C.R.P.F., if necessary.”

However, the Bench also stated that such recommendations are merely broad ideas and are subject to modifications and they invited suggestions from various District Bar Associations on the same. The matter of the participation of the State in the matter of security of court complexes was subsequently fixed on 20 December, 2019.

On the issue of specialised security personnel, the Allahabad High Court in its order on 20 December, 2019 stated that the Additional Chief Security (Home) must inform the Court regarding the formation of such a force via an affidavit and until such a time, an appropriate number of police personnel must be made available.

The matter was further listed to be heard on 2 January, 2020. The order includes an affidavit of compliance sworn by Sri Awanish Kumar Awasthi that stated that the State Government proposed to establish the Uttar Pradesh Special Security Force so as to maintain security of this Court at Allahabad, Lucknow, and other district judgeships. Further, the Special Security Force can be utilised for providing security of other installations and institutions, establishments or individuals notified by the state government for this purpose.

Two questions arise here: One, whether the High Court can direct the constitution of a special police force? Two, whether the present powers of the Uttar Pradesh Special Security Force are in consonance with the provisions in the Code of Criminal Procedure.

The State’s Authority to constitute a Special Police Force

The Constitution holds that Police is a subject governed by the State. The Police Act, 1861 governs the police in States such as Uttar Pradesh, Madhya Pradesh, Manipur and Nagaland. The State government shall exercise control over the police force and the superintendence of the police shall be vested in the State Government. The State Government’s executive function encompasses the creation and control of police forces. This power, to some degree, extends to police officers as well.

The Police Act, 1861 also gives police officers the authority to appoint special police-officers. Section 17 states that any police officer, not below the rank of inspector, may apply to the magistrate to appoint citizens as special police officers. Further, Section 18 specifies that these special police-officers have the same powers, privileges and protection as ordinary police officers.

The Supreme Court has established certain limitations to the State’s exercise of executive power in maintaining law and order. In Nandini Sundar and ors. v. State of Chhattisgarh, the Supreme Court discussed various aspects of the constitution and functioning of the Salwa Judum— an armed civilian vigilante group who acted as temporary police officers promoted by the Government of Chhattisgarh.  The respondent-State argued that due to the severe security issues caused by the threat of Maoist violence in Chhattisgarh, they have the executive authority to enforce law and order.

The Supreme Court held that while the State has the exclusive executive responsibility to provide security to its citizens, if it conflicts with core constitutional values such as the right to life and equality of its citizens, the Court is forced to intervene. Irrespective of the efficacy of such groups, they may not be used as a yardstick to measure constitutional permissibility. Therefore, the necessity of developing a well-trained and professional law enforcement capacity than function within the limits of constitutional action is emphasised.

Therefore, while the U.P. State Government may constitute a special police force, the members of such a force must be well-trained professionals and must operate within the boundaries of due process.

Arresting and Searching Property without a Warrant

From the perspective of a police-officer’s power to arrest, offences are broadly divided into cognizable and non-cognizable offences. Cognizable offences are those offences for which the police may arrest an individual without a warrant. This is specified in Schedule I of the CrPC. This includes offences such as kidnapping, murder, rape etc. Other offences are non-cognizable. A police officer cannot investigate a non-cognizable case without the order of a magistrate having jurisdiction over such a case. Further, a police officer has no powers of arrest without orders of a magistrate in such non-cognizable cases.

Section 41 of the Code of Criminal Procedure, 1973 provides certain circumstances where an individual may be arrested without a warrant. Section 41(1) of the Code of Criminal Procedure empowers a police official to arrest without a warrant, any person “who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned.”

Clear guidelines on the police’s power to arrest without warrant has been held in Joginder Kumar v. State of UP. The Supreme Court held that no arrest can be made simply because it is lawful for the police officer to do so and the police officer must justify their arrest beyond the fact that it is lawful for them to do so.

The Third Report of the National Police Commission suggested that an arrest during the investigation of a cognizable case may be justified in certain circumstances: One, if it involves a grave offences like murder, dacoity and rape and it becomes necessary to arrest the accused; two, the accused is likely to abscond and evade the processes of the law; three, the accused is given to violent behaviour; and four, the accused is a habitual offender. However, the police officer making such an arrest must record the same in a case diary and conform to due process. An arrest may be made only if there is reasonable satisfaction of the genuineness of the complaint after some investigation and there is necessity to arrest.  

Further, if arrest is effected, the individual who is arrested is entitled to certain rights guaranteed by Article 21 and 22(1) of the Constitution. They must have a relative or friend informed of their arrest and where they have been detained. The police officer must specifically inform the arrested person of this right and record the arrest in their case diary.

The aforementioned guidelines were reaffirmed in Som Mittal v. Government of Karnataka. Both Section 2(c) and Section 41 of the CrPC state that the police officer may arrest therefore implying that they’re not bound to arrest even in cases of cognizable offences. The Supreme Court observed the trend of immediately arresting individuals accused of cognizable offences even if the situation doesn’t meet the high threshold for arrest as held in Joginder Kumar.

Interestingly, the Supreme Court in this case also noted that due to the trend of arbitrarily effecting arrests as well as there being an absence of a provision for anticipatory bail in Uttar Pradesh, there is excessive overcrowding of jails, and hardship caused to both the public and the courts.

When one examines the prospective Uttar Pradesh Special Security Force, the officers of that force may arrest an individual without a warrant merely if they have reason to believe that a crime has been committed. This is a sharp contrast to the aforementioned threshold. The power of arrest is clearly based on the nature of the offence, and demolishing this legal requirement while vesting this power in any security force is arguably illegal.

Further, the UP Government has stated that Courts may not take note of actions of employees of such a force without government permission. This immunity from prosecution is not unknown in statutes in India. However, even then, there must be a showing that duties were discharged in "good faith" — if the proposed immunity clause here goes beyond this, it is a quick step into the realm of impunity.

Law and Order in Uttar Pradesh

This prospective move is yet another nail in the coffin of due process in Uttar Pradesh. The past few years displayed a shocking trend of rise in encounter killings by police (with reportedly media being "invited") and a spike in hate crimes against marginalised groups. Further, the jails are overcrowded, the courts overburdened, and the justice delivery system remains extremely inaccessible to ordinary citizens. It’s important to understand that the creation of another security force in a State where police atrocities go largely unquestioned is only diverting focus from the real issue of enforcing due process and improving transparency in police functioning. Even in the context of crime reduction, excessive policing is a poor (and expensive) replacement to actually improving welfare, quality of life and accessibility to justice, which have proven to effectively reduce crime rates in countries.

Guest Post: The Police Violence in JMI and AMU — What does the Law Say?

(This is a guest post co-authored by Naeemullah Azeem and Rudraksh Lakra. It is in anticipation of an upcoming report published by Citizens against Hate where the thrust of the report is upon disproportionate use of force by police and paramilitary forces in JMU and AMU, based on testimonies of more than 200 students. The report also makes a detailed legal analysis of powers governing use of force by police / other forces.)

On 15th December 2019, in response to largely peaceful protests against the Citizenship (Amendment) Act 2019, the police and paramilitary forces forcibly entered Jamia Millia Islamia University's campus and subjected students to indiscriminate violence. On the same night, a similar story played out against students at Aligarh Muslim University. They were protesting the crackdown on students of Jamia Millia Islamia. UP police and Rapid Action Force personnel entered their campus late at night and subjected protestors to lathi charge, teargas shells, stun grenades, and even bullets.

This post assesses the legality of these actions by the law enforcement agencies (LEA) against the largely peaceful and unarmed protests by Jamia Millia Islamia (JMI) and Aligarh Muslim University (AMU) students discussed above. It attempts to answer three specific questions: whether LEA’s can enter university campuses, whether they can use force against protestors, and what ought to be the magnitude of force they employ.

It has been asserted that LEA’s have the power to enter campuses and to use force to carry out arrests and to disperse unlawful assemblies. To answer the questions that follow this initial line of inquiry, this article is divided into two parts: the first section examines and analyses the power of LEA’s to effectuate an arrest, examining whether or not they can enter education institutes to do so, and if yes, then to what extent force may be used to enforce an arrest. The second section explores the power of LEA’s to disperse an unlawful assembly and explores the extent of force that can be deployed to facilitate such dispersal. The article considers India's domestic and international obligations.

It concludes that while the LEA’s did have the power to enter the JMI’s and AMU’s campus, the state’s use of violence against the students amounted to unlawful use of force.

Power of LEA’s to effectuate an Arrest

Police can forcefully enter the campus for effecting an arrest under Section 41 and Section 48 of the Criminal Procedure Code 1973 [Cr.P.C.] allows police personnel to pursue individuals without warrants into places that are not within their territorial jurisdiction. The Cr.P.C. authorises LEA’s to enter any place (Section 165, 166) or any jurisdiction (Section 48) to effect an arrest, the degree of force that may be deployed by the police to effect an arrest ought not to be to more than that is necessary to prevent the target’s escape (Section 49).

The Kerala High Court in Vijayakumar v. State Of Kerala [2004 (2) KLT 627] clarified that “students indulging in criminal activities inside the college campus are liable to be dealt with just like any other offender and if the situation warrants the police can enter the college campus without anybody's request or permission to prevent such criminal activities or to take action against persons who commit criminal offences.” However, within the same judgment, it went on to caution “considering that the college is a 'temple of learning' any action of the police inside the college campus shall, as far as possible, be with the knowledge of the Principal.” (Paragraph 9)

The Bureau of Police Research and Development, which addresses the functioning and methods of police, has also clarified that the police should “keep the head of the institution informed of visits to the campus as far as possible.” 

Therefore, although there is no legal restriction upon entering campuses under circumstances where an official is “authorised” to effect an arrest, however permission is sought as a matter of custom.

Fact Matrix Analysis

While the police could have entered the JMI and AMU campus for effectuating lawful arrests, given the sensitive situation they should have consulted with the administration before entering the campus, on how best the situation could have been handled.

Moreover, the range of police activities that were carried out on JMI and AMU campus reportedly went well beyond merely arresting students. It was reported that police had deployed arbitrary and excessive force in their dealings with the students and targeted minorities. For instance, the instances of reported use of force in the library and reading room, would appear wholly unconnected to the purpose of locating and arresting students, and so could not possibly be justified because it fell within the police's power to effectuate an arrest.

In JMI, it was reported that over 1000 police and paramilitary forces were present; surely not all of them could have been positioned to arrest students. Therefore, the power of the police to effect an arrest cannot be used to legitimise the range of the LEA’s activities on these campuses.

While the lawfulness of the arrest can only be determined on a case to case basis, on the face of it, a case could be made that the force use by the police to effectuate arrests was illegitimate, as the force employed was not limited to the extent that would have been necessary to prevent suspects from escaping. PUDR’s fact-finding report concluded that the police used force to inflict “maximum damage,” and the force was deployed for reasons entirely unconnected to the object of arresting students, for instance, forces engaged, in the destruction of property of students and other residents vehicles in and around JMI, of window panes, of CCTV cameras, and library property.

Power of LEA’s to use force to disperse an Unlawful Assembly

Indian Law

Cr.P.C. Sections 129 and 130-131 encapsulate the powers of police and armed forces to use force to disperse an unlawful assembly. The Cr.P.C. does not place any territorial-jurisdictional limitation to the power of the police or armed forces under the sections, and therefore, it follows that they can even enter educational institutes.

The Supreme Court in Karam Singh v. Hardayal Singh [1979 Cri. L.J. 1211] noted an assembly being unlawful will not by itself warrant the use of force, the object of the unlawful assembly must be to commit violence or breach of peace, and it must be likely to commit violence or breach of peace (Paragraph 6).

The term “breach of peace” may be better understood by referring to SC’s articulation of the term public order, this is supported by the fact that Section 129 is placed within the chapter titled “[m]maintenance of public order and tranquility.” In Ram Manohar Lohia [AIR 1966 SC 740], the Supreme Court gave us the concentric circles logic for understanding the overlapping concepts of "law and order", "public order", and "security of the state" — law and order is the widest, public order narrower, and state security the narrowest (Paragraph 55). 

Therefore, for the use of force under Section 129 the object of the assembly, must be to carry out an act which rises to the level of disturbance to the public order – the public peace, safety, and tranquility in the society and such an act must be likely; consequently, a mere infraction of the law, would not invoke Section 129 CrPC.

Amount/Quantum/Extent of Force?

Section 130(3) of the Cr.P.C. indicates that “as little force as possible” is to be used by armed forces while dispersing an unlawful gathering. This section is indicative that even LEA’s are required to use “as little force as possible.”

In Anita Thakur v. Union of India [2016 SCC OnLine SC 814], the Supreme Court noted that the police's use of force in response to an unlawful assembly has to be reasonable and cannot be over the limit required to control and disperse the crowd. Even in a case where the protesters pelted stones at the Police, the Court held that the police’s use of force surpassed what was required to control the situation and amounted to a violation of human rights and human dignity (Paragraph 17-18). The same Court unequivocally noted in Ramlila Maidan Incident v. Home Secretary [(2012) 5 SCC 1] that the disciplinary action ought to be taken against those police officers who indulged in lathi charging, brick battling, and “excessive use of tear gas shells upon the crowd” and stated that these actions had “an element of criminality” (Paragraph 286.17(a)).

This is also found in Delhi Police Standing Order 72, which notes that the least force possible is to be employed.

Guidance is further provided by the Model Conduct Code for the Police (1961) and the Model Rules on the Use of Force by Police against Unlawful Crowds (1964), which state that minimum force necessary is to be employed to achieve the desired object, with the latter specifically stating that the object of use of force must not be punitive or repressive. These guidelines have been cited with approval in P. V. Kapoor v. Union of India [1992 Cri. L.J. 128] (Paragraph 35) [and the latter with approval in Anita Thakur (supra)]. In P.V. Kapoor, the Delhi High Court noted that “in maintaining order, the police should use the method of persuasion, advice, and warning” and only on the failure of these methods, the absolute minimum force employed as required in the situation (Paragraph 34-35).

Thus, force used under Section 129 of the CrPC should strictly be limited to what is strictly necessary to disperse the crowd, must halt once the crowd starts to disperse, and must not be deployed for punitive or other such purposes.

International Law

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials [BPUFF], and the Code of Conduct for Law Enforcement Officials [CCLEO] are authoritative laws regulating the use of force by LEA’s and many of their principles are part of customary international law [CIL].

BPUFF’s principles are part of customary international law as recognised by the European Court of Human Rights in the Benzer v. Turkey (2013) (Paragraph 90) and by the Inter-American Court of Human Rights in Cruz Sánchez et al v. Peru (2015) (Paragraph 264). Principle 5 states that the exercise of force should be proportionate to the seriousness of offence; Principle 13 states the force employed to disperse an unlawful assembly should be to the minimum extent possible, and principle 14 states that legal force should be the last resort.

Fact Matrix Analysis

Indian legislation, judicial decisions, and its international obligations, therefore, require LEA’s to exercise minimal proportional force to be used to disperse an unlawful assembly, and once the crowd starts to disperse, the use of force must stop, and the object of force employed should not be punitive. Moreover, force should only be employed where the object of the unlawful assembly is causing violence or breach of peace (or likely to do so).

Consequently, we argue that the use of force in JMI and AMU was excessive and unlawful. On 15th December 2019, a protest was organised by the JMI body crossed the JMI campus, and started walking toward Mathura road. It was at this point that the police started lathi charging and used tear gas because of which the crowd started dispersing, running towards the campus. Even if the assembly was unlawful, Section 129 could not authorise the use force, as the majority of these protestors were unarmed and peacefully protesting, and therefore is nothing to suggest the object of the protectors was to cause violence or breach of peace and that they were likely to.

Assuming the invocation of Section 129 was lawful when the assembly was marching towards Mathura road, even then force employed should have halted as and when the police were successful in dispersing the crowd which was heading back to the campus.

Lastly, even if the police claim that entry into the campus was important for dispersing the crowd and finding out who was pelting stones is accepted, the force used inside the campus remained vastly disproportionate to the extent required, lending itself an element of criminality [Ramlila Maidan (supra)].

The LEA’s use force only was not restricted to only those who were allegedly throwing stones; they “were certainly not being thrown by students in the reading room and library, the washrooms that they had to be gassed out or from the History and Urdu departments which were vandalized by the police.” The police targeted individual students and used force which was intended to brutalise and not merely to disperse the crowd. Islamophobic and targeted slurs were used against students indicating the action was punitive, targeted, and reprehensible.

In AMU, reports suggest that the actions of police were similar to those undertaken by them in JMI. The police arrived to disperse a crowd protesting at Bab-e-Syed​ and used non-lethal force including tear gas shells, rubber bullets, stun grenades, pellets, and other kinds of explosives into the crowd inside the gate. The crowd, at this point, reportedly began to disperse, which means that there was no need for further use of force. Despite this, LEA searched the campus to target student, the “nearby buildings such as Guesthouse No. 2 and 3 along with the mosques were raided by police and RAF and all the unarmed students (estimated 12-15) were heavily lathi-charged.”

A fact-finding report shows that in Morrison Boys’ Hostel, AMU, soldiers beat up guards and fired teargas into the rooms of the students to smoke them out, and one of the rooms caught on fire. Doctors from the university medical college rushed more than ten ambulances to pick up the injured students, but the soldiers refused to allow them to rescue the students, and even broke the bones of one ambulance driver. As in the JMI incident, the kind of force reportedly used was disproportionate, targeted, and was employed to penalise and brutalise minorities.

Conclusion

The LEA’s and paramilitary forces did have the power to enter the campuses of JMI and AMU, however, the extent of use of violence against JMI and AMU students was disproportional and was unlawful. In our opinion, such use force of force was not towards securing a lawful object, but rather the purpose was something else entirely — an attempt to subjugate minorities and to suppress dissent from resilient and autonomous educational institutes, by sheer coercive action, in complete disregard for rule of law.

[This post was updated at 12 PM on 12.09.2020 to add details to the introduction and correct a typographical error regarding the date of incident]

Guest Post: Conviction Records in Labour Law — A Closer Look at the Decision in Sushil Singhal

(This is a guest post by Vasudha Passi Verma)

Individuals who have been convicted of a criminal offence often find it difficult to reintegrate into society even after they have served a sentence prescribed by law. Apart from the stigma which attaches to a conviction, these individuals also lose several formal rights for the rest of their lives. This fate is especially tragic when it befalls individuals involved in minor or petty crimes, or young offenders, or those convicted under penal provisions which were not constitutional to begin with, such as section 377 of the Indian Penal Code for instance. Like other statutes struck down for unconstitutionality, it was only made ineffective prospectively, which means that individuals convicted under the provision from 1860-1947 serve carceral sentences and emerge with conviction records. All of these individuals are equally struck by blanket exclusions based on conviction records, and are thus deprived permanently of avenues to reform, self-actualize, or find constructive purpose.

Most jurisdictions recognize this, and attempt to reduce this impact. Some states in the US expunge criminal records of low-level and first-time offenders to prevent prejudice to opportunities otherwise available to the individual. In India, the attempt to prevent prejudice has culminated in the Probation of Offenders Act of 1958 (‘the Act’).

Sections 3 and 4 of the Act allow courts to offer a lighter sentence to persons who have committed minor crimes, or otherwise exhibit a character which makes it expedient in the opinion of the court to grant probation. These sections allow the court to exercise discretion and award a lighter sentence or ‘probation’. However, section 12 of the Act attempts to reduce the post-carceral disadvantage that these individuals face by relieving them of the disqualifications which accompany a conviction. 

The provision has the potential to create significant impact, but this has remained unfulfilled due to the conflicting and inconsistent construction that courts have placed upon it. In Sushil Singhal’s case, the Supreme Court had the opportunity to give meaning to section 12, which it missed. 

Sushil Singhal’s case

Sushil Singhal, the appellant, was an employee of the Punjab National Bank. As part of his duty, he was asked to deposit a sum of money which he instead misappropriated. The bank reported him to the police, and he was tried and subsequently convicted. He was also dismissed from his position because section 10(1)(b) of the Banking Regulation Act of 1949 required that the respondent bank dismiss and refuse to employ individuals convicted of offences involving moral turpitude. He was subsequently granted probation, and moved the Industrial Tribunal arguing that the dismissal was a “disqualification attached to conviction under [a] law”, and he was entitled to not suffer it. 

The court upheld his dismissal. In considering the effect of section 12, it asked whether dismissal from employment was a "disqualification attached to conviction under [a] law", and found that it was instead a "civil consequence". To arrive at the correct interpretation of the law, the court ought to have considered two distinct questions, namely whether the dismissal was at all a “disqualification”, and whether the dismissal in the present case was “attached to conviction”. 

Is dismissal from employment a “disqualification”?

In determining what a “disqualification” is, two views are possible. The first is that since the provision reads “notwithstanding anything contained in any other law... disqualification, if any, attaching to a conviction of an offence under such law”, that “such law” refers to disqualifications under statutes which specify the disqualification, or those to which the non-obstante clause pertains. This was the view taken in Shankar Dass. The other view is the one taken in Harichand, which read the provision to mean “conviction of an offence under such law”, where “such law” referred to the statute which specified the offence. Since the decision in Harichand did not acknowledge the decision in Shankar Dass despite adjudicating the same subject, it was in fact per incuriam, and the meaning of “such law” in Section 12 continues to refer to disqualifying statutes.

Thus, an individual who faces exclusion under a statute which creates the exclusion based on conviction should be relieved of it if they are granted probation. However, the Supreme Court in Sushil Singhal cited both Shankar Dass as well as Harichand to create sub-categories of “disqualification” to which section 12 applied. 

In Shankar Dass, the Supreme Court attempted to gauge the meaning of a “disqualification”. In that case, the appellant was convicted, granted probation, but dismissed nevertheless based on a departmental proceeding. The court held that “disqualification” in section 12 refers to disqualifications under statutes which provide for such “disqualifications”, such as for example the Representation of People Act, 1951 (which co-incidentally uses the word ‘disqualification’). The court appeared to have been emphasising that the benefit of section 12 could only be granted when the disqualification was under a statute. While the use of the example may be considered illustrative, the court did not specify whether statutes which use the word ‘disqualification’ differed from those that do not.

The Court in Sushil Singhal understood this ratio to mean that there exists a class of “other statutes” for which section 12 is effective. Apart from the Representation of People Act, the Court (wrongly) relied on Harichand to include within this category criminal statutes.

However, it did not attempt to clarify the meaning of “other statutes”. It did not even clarify if the basis of this determination was indeed the use of the word ‘disqualification’. Since the dismissal was based on the Banking Regulation Act, which was not a criminal statute, and did not contain the word ‘disqualification’, the Court’s determination allowed it to hold that the dismissal of the appellant was not a “disqualification” and the benefit of section 12 therefore need not be granted. However, the word “disqualification” should have instead been constructed to include all exclusions or bars stipulated by a statute where they attach to conviction. This is because of the following factors:

• Beneficial legislation 

Statutes which confer a benefit on individuals or classes of individuals by protecting them from an oppressive circumstance should be interpreted broadly and given wide meaning. Since the Act, and in particular Section 12, attempts to protect certain individuals against the deprivation of their rights, it is a beneficial statute. In order to give section 12 wide effect, it should be read broadly. A broad reading would not limit its meaning to disqualifications expressly called ‘disqualifications’. Rather, such a reading would account for statutes which create a disqualification but for reasons of drafting or simplicity do not label them as such. For instance, the Court in Trikha Ram upheld an order of dismissal but noted that it should not operate in any way as a “disqualification or bar” against future employment. The court in Sushil Singhal did not consider if the Act was a beneficial legislation. 

• “disqualification, if any”

The use of “disqualification” under section 12 is followed by the words “if any”. If the legislature had intended the provision to be read narrowly, it could have omitted “if any”, since the sentence ‘shall not suffer disqualification attaching to a conviction’ would have made grammatical sense. However, the inclusion of “if any” indicates that the legislature intended the provision to cover any kind of disqualification, and not just one which is expressly labelled so. This is a broad category but is limited by the requirement that the disqualification be mandated by statute. Thus, the section does not go as far as to create absolute parity of treatment with individuals without conviction records, but attempts to undo the harms of formal exclusion. 

Therefore, the word “disqualification” should be broadly construed. Such an interpretation would have acknowledged that a compulsory dismissal was indeed a disqualification created by the Banking Regulation Act, capable of receiving the benefit of section 12. Fortunately, the word has subsequently been interpreted broadly in matters connected with employment. For instance, section 12 has been held to protect retirement benefits, as well as employment opportunities received through compassionate appointment. 

Was the dismissal in this case attached to conviction? 

The Court was of the opinion that the dismissal of the appellant was a “disciplinary proceeding” against the employee. It argued that section 12 does not preclude disciplinary action against an individual, which is a “civil consequence”.

However, the court adopted the incorrect approach to this question. Instead of focusing on civil or criminal consequences, the court should have focused on whether the disqualification was attached to a conviction under a law. In Punjab Water Supply Sewerage Board, Karam Singh and in P.R. Mohan all of which the Court relied upon, the decision to dismiss was based on the discretionary ability to dismiss i.e. the departmental proceeding was a decision and not a mandate under a statute. 

The Court was in fact applying the ratio in Swarn Singh, where the appellant was dismissed under the same provision of the Banking Regulation Act, and sought re-appointment under section 12. Yet, even in that case, the Supreme Court attempted to characterise the dismissal as a discretionary act. It referred to Article 311(2) of the Constitution which confers a power on the government to dismiss a person “on the ground of conduct which has led to his conviction on a criminal charge”. However, the dismissal in both of these cases was based on a mandatory stipulation, making the dismissal not one of discretion but statute, and thus a ‘disqualification based on conviction under a law’ under section 12. 

In the abstract, the court’s reasoning was correct. Had the dismissal been the outcome of a discretionary disciplinary proceeding, the respondent bank would have been able to successfully demonstrate the legal basis to do so, and section 12 would not have applied. However, in this case, the respondent bank did not initiate its own disciplinary proceeding or act on the misconduct until the conviction, despite having the ability to do so as per Swarn Singh. The respondent, in fact, argued that the grant of probation did not “wash away” the finding of guilt or the “factum of conviction”, and relied on the ratio in T.R. Chellappan. 

That appears to be a reasonable view to take. Being convicted of a criminal offence means that an individual can be demonstrated to have committed it beyond reasonable doubt. Therefore, the grant of probation cannot take away the finding of culpability. Such a reading, however, fails to acknowledge the purpose of section 12. Surely all disqualifications attached to conviction actually attach to the finding of fact of commission of the offence. Without the finding, an order of conviction is purely an order of sentencing. It would make no sense to assume that the statutes which exclude based on conviction for an offence actually exclude based on the deprivation of personal liberty that the individual suffered whilst serving their sentence.

In fact, such a reading effectively nullifies section 12 in entirety. A more honest reading of the section would acknowledge that the only individuals who are granted probation are those in whom a court of law has seen a ‘character’ capable of change and reform, and therefore section 12 intends to erase any disqualification based on their conviction record, as the finding of culpability itself is deemed to not reflect on their future prospects.