24, Sep 2021 | Sanchita Kadam
After the inhuman act of evicting impoverished families hailing from the minority community and demolishing their modest homes in the Darrang district of Assam, the administration stooped even lower on Thursday. Police opened fire at those protesting the evictions, killing two people and injuring 10.
Images sent by eye-witnesses present on the spot show how instead of firing only below the knee as is mandated by law, police opened fire on the upper bodies of protesters. Images available with SabrangIndia show bullet injuries to the chest, stomach and even the face and head of people. Some of the injured also appear to be just teenagers.
The discourse is now tipping towards how much force is too much force. Ideally speaking, the force used by the police should be proportionate to that of the protesters. There are several crowd control measures that the police can employ before having to resort to extreme measures such as opening fire. Taking such extreme steps certainly amounts to violation of human rights, and the police need to be held accountable.
However, the modes of holding the police responsible for such acts are limited due to the vast powers and the immunity granted to them under all laws via the clause of “acts done in good faith”. Yet, it is pertinent to look at what our laws and police reforms say about crowd controlling powers of the police as also the international standards on the same.
Provisions in Indian criminal law
The Code of Criminal Procedure consists of a couple of provisions to deal with unlawful assemblies. Section 129 deals with Dispersal of assembly by use of civil force and states that the officer in charge of the police station can command the assembly to disperse. If they do not heed, the police officer can disperse the crowd or if necessary arrest and confine persons in the assembly.
Section 130 deals with use of force using arms to disperse assembly, but under sub-section 3 states, “He (Police officer) shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.”
Section 131 deals with power of certain armed force officers to disperse assembly which allows use of armed forces when public security is manifestly endangered by any assembly and it allows the armed forces to arrest and confine any persons forming part of it or punish them according to the law.
Further, Section 99 of the Indian penal Code (IPC) elaborates upon which situations cannot be used to justify “right of private defence”. It states that if there is no apprehension of death or grievous hurt, a public servant’s act in good faith may not be justified by law. “The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence,” it further states.
Code of Conduct for Indian Police
The Ministry of Home Affairs (MHA) in 1985 released Code of Conduct for the Police in India which states under Clause 4:
“In securing the observance of law or in maintaining order, the police should as far as practicable, use the methods of persuasion, advice and warning. When the application of force becomes inevitable, only the irreducible minimum force in required in the circumstances should be used.”
The UN Code of Conduct for Law Enforcement Officials adopted in 1979 states under Article 3 that Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.
Model Rules on the Use of Force by the Police against Unlawful Crowds adopted by the Inspectors General of Police Conference, 1964 state that minimum necessary force should be used to achieve the desired object. Force should be regulated according to the circumstances of each case. The object of such use of force is to disperse the assembly and no punitive or repressive considerations should be operative while such force is being used.
Assam Police Manual
Since the Assam Police is involved here, it is also important to look at the Assam Police Manual and what it says about managing crowds.
Under section 47 (Part 1), the Manual speaks about dispersals of processions and inter alia states that it is not uncommon for the members of the procession to become violent with the slightest iota of provocation. So it is very much desired of the police to keep utmost restraint and should have a preconceived idea of the motivations and the elements mingled within the procession.
“A procession if peaceful and orderly even if some apparent elements of nuisance need not be policed, since repressive policing is by itself a threat to public tranquility. What is essential IS better appreciation of public psyche. The police have to be seen and to see themselves as protectors of liberty within the law,” its states.
Under section 49 it states that in ordinary cases where no serious opposition is expected, the constables should be armed with bamboo lathies. It also states that “when assemblies of the public are not permitted to carry weapons of offence, the police with their batons and lathies will be sufficiently equipped to -be able to maintain and enforce order even against large crowds” and that armed police should only be kept in reserve and only called out to disperse the crowd or to arrest them.
Under section 50, it states, “Where a police officer did not believe it necessary for the public security to disperse an assembly by firing on them; but nevertheless gave orders to shoot with the result that a man was shot dead, it was held that he did not act in good faith.” It further states, “Discretion in the use of deadly force demands self-control and where the police acquires a reputation for, hasty shooting they seem more likely to become victim of murder themselves. Since right to life is a fundamental human right, life should never be taken by a police officer even if he has a legal excuse, if he can resolve the problem without doing so.”
Immunity and impunity
The section 197 of Code of Criminal Procedure (CrPC) provides immunity to public servants from prosecution for any misappropriate acts done by public servants which includes police personnel. Most cases of police brutality have to be brought to the notice of the judiciary directly by means of writ petitions and in some cases, the courts have awarded compensation to the victims of police excess and brutality. One wonders how is that adequate? There is a fine line between violation of human rights and a police officer acting in disposition of his duty. “I was just doing my duty” is the shield used by police men, unless the excess can be somehow proved and it can take years before any compensation is received, but in most cases, the police officer will complete his years of service and reap the benefits of being a public servant.
Although the Indian Police Act does penalise police for violation of duty or wilful breach or neglect of any rule or omission of duty under section 29, there is no specific section that deals with police brutality.
The United Nations High Commissioner for Human Rights, in 2004, released a booklet titled “Human Rights Standards and Practice for the Police” the underlying principle of which is that police officials must respect human rights and must not do any action in derogation of such rights. The topics covered include non-discrimination in law enforcement, abiding by human rights in investigations, arrests, proportionate use of force, and detention. It also states how there should be accountability for use of force and forearms, permissible circumstances for use of force and firearms, and so on. In case of violation of human rights by police, it says that there should be a proper system in place for receipt of complaints against the police, the investigations of which should be transparent, thorough, impartial, prompt and competent. It also says that obedience to superior orders cannot be a defence for violations. While all these guidelines are ideal, they are also very idealistic and very difficult to be imposed in reality.
The UN also adopted Basic Principles on the Use of Force and Firearms by Law Enforcement Officials in 1990 which asks governments to include the development of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasingly restraining the application of means capable of causing death or injury to persons. Under Clause 4, it states,
“Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.”
The other provisions include providing medical relief to the injured and exercising restraint in proportion to the seriousness of the offence and the legitimate objective to be achieved.
On use of firearms, it states that they should be used only in self defense or defence of others against the imminent threat of death or serious injury. In handling even unlawful assemblies which are non-violent use of force is not considered practicable.
The only three practical and viable remedies that one has against police brutality are:
– to file a complaint with the State Police Complaints Authority
– to file a writ petition at the High Court, or Supreme Court, whatever the case may be
– approach the State or National Human Rights Commission.
All processes can prove to be long drawn as none are bound by a statutory time frame.
However, these violations need to be arrested and only true political will and some serious reforms in police administration at state and local level is capable of bringing about real change to avoid human rights violations.