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National Concerns: Use of Force by Police

When, and to what extent, is the use of force by police legal?

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Use of Force by Police

In News:

  • The police action in Delhi’s Jamia Millia Islamia, where the police entered the university campus and employed force against students, is being widely criticized.

Provisions to deal with protests:

  • There are various provisions in the Constitution and laws of India on the right of police to intervene in protests and agitations.
    1. Provisions in the Constitution:
      • The right to protest peacefully is guaranteed by the Constitution of India. Articles 19(1)(a) and 19 (1)(b) give to all citizens the right to freedom of speech and expression, and to assemble peaceably and without arms.
      • However, under Articles 19(2) and 19(3), the right to freedom of speech is subject to reasonable restrictions.
      • The reasonable restrictions apply in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
    2. Provisions in the CrPC and IPC:
      • The legal provisions and avenue available to police for handling agitations, protests, and unlawful assemblies are covered by the Code of Criminal Procedure (CrPC), 1973, the Indian Penal Code (IPC), 1860, and The Police Act, 1861.
        • 2.1 CrPC provisions:
          • The CrPC’s Sections 129-132 deal with dispersal of assembly by use of civil force, use of the armed forces in situations of civil unrest, and protection against prosecution for acts done under these sections.
          • Under CrPC Section 129, any Executive Magistrate or officer in charge of a police station can command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse.
          • After which, it is the duty of the members of such assembly to disperse accordingly.
        • Use of Force:
          • If, upon being commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in a manner to show a determination not to disperse.
          • The Executive Magistrate or police officer, may then proceed to disperse such assembly by force, and, if necessary, arrest and confine the persons who form part of it, in order to disperse such assembly and punish them according to law.
          • Section 130 of the CrPC, requires personnel to 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.
        • 2.2 Provisions under IPC:
          • The IPC’s Sections 141-158 deal with unlawful assembly, and the responsibilities, liabilities, and punishments related to this offence.
          • Under IPC Section 141, an unlawful assembly is an assembly of five or more persons that intends.
            • To intimidate by criminal force, governments or public servants.
            • To resist the execution of any law, or of any legal process.
            • To commit any mischief or criminal trespass, or other offence.
          • As per IPC Section 146, whenever force or violence is used by an unlawful assembly, or by any member, in the process of prosecution, every member of such assembly is guilty of the offence of rioting.
    3. Provisions in the judiciary:
      • In Karam Singh vs Hardayal Singh And Ors. the High Court of Punjab and Haryana underlined in its judgment of August, 1979, that before any force can be used, three prerequisites are to be satisfied:
        • Firstly, 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 the public peace.
        • Secondly, such assembly is ordered to be dispersed and;
        • Thirdly, in spite of such orders to disperse, such assembly does not disperse.
    4. Provisions in the United Nations:
      • The ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’ were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Havana, 1990.
      • It resolved that 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 Principles cautioned that whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall, exercise restraint in such use.
      • Further, they should act in proportion to the seriousness of the offence and the legitimate objective to be achieved, and minimize damage and injury, and respect and preserve human life.
      • Also, Governments have to ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.

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