(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
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.
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.
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]