In this blog, the author has discussed at length the inter-relation between the law, the lockdown imposed in India and the lathi-charge as well. While it is true that the law provides freedoms and liberties to people, it is also expected to be exercised reasonably. The author is one of the brilliant interns who contribute to AmicusX.
Introduction
Amidst the various changes that were observed in the two lockdowns, one thing remained common and rampant – lathicharge. Videos and news reports have been pouring in from all round the country of the police having resorted to lathicharge to punish the violators of lockdown. Although the measures adopted by police have been a lot less brutal than countries like Kenya, where a citizen was shot for standing in the balcony during the lockdown(1), and Philippines, where the President has released ‘shoot-at-sight’ orders for any violator of the knockdown(2), but the measure of lathicharge doesn’t fit in the legal framework.
The revised guidelines for implementation of lockdown, released by the Ministry of Home Affairs (MHA)(3), clearly mention that any and all violators of lockdown will be punishable under sections 51-60 of the Disaster Management Act, 2005 (DMA) and/or Section 188 of Indian Penal Code, 1860 (IPC). But, astonishingly, these two legislations have no mention of the term ‘lathi-charge’ in their text. Neither is lathi-charge mentioned in these two legislation nor is it mentioned in the Criminal Procedure Code, 1973 (CrPC) or any other legislation. So, what is the legality of a ‘lathi-charge’ and are the police superseding the powers conferred on them?
Analysing the legality of Lathi-charge
The Section 129 of CrPC talks of dispersing an assembly through use of civil force to maintain public order and tranquility. An overview of the section tells us that to invoke this section, the following conditions are necessary to be meted out –
a) there needs to be an unlawful assembly or any assembly of five or more persons likely to disturb societal peace and harmony ,
b) the assembly needs to be given command to disperse off and
c) even after the command being given, if the assembly remains adamant on its stand to not go away then the police may use force to disperse them.
However, one should acknowledge that this section can not be brought in force to disperse individuals away and even if it is invoked then use of manual is a measure of last resort. A similar provision is found in the 4th principle of ‘UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’,(4) which enunciates that the police personnel should apply non-violent measures before resorting to forceful measure and it further states that force should only be used if other measure are unable to yield the intended results.
Further, Article 21 enounces that any act committed to restrict personal liberty of an individual needs to adhere to a procedure established by law and the procedure in a very perspicuous and lucid manner states that force should be used only in the last-gasp and after the exhaustion of other alternatives. The Apex Court in the landmark case of Maneka Gandhi v. Union of India,(5) has also opined that any procedure adopted shall be right and just and fair and not arbitrary, fanciful or oppressive otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.
But, there have been several instances wherein the police personnel have acted in a high-handed and oppressive fashion including, but no limited to, hurled abuses and groped two female doctors en-route duty,(6) the police have also resorted to the brutal measure of stamping statements on the forehead of youngsters to teach them a lesson for wandering on streets in spite of a lockdown,(7) reports had surfaced where police personnel over-turned and vanadalized vegetable carts even though vegetables are the most rudimentary and essential services. (8)
These instances demonstrate that such acts of the police are threating the constitutional fabric and cognizance of the same has been taken by the Hon’ble Rajasthan High Court in a plea filed by Ashish Davessar,(9) wherein the court has ordered the state government of Rajasthan to file a reply enumerating steps taken to avoid unlawful manhandling of public in enforcing COVID lockdown. Further, the Government of India is also obliged under Article 38 of the constitution to promote social welfare by securing public order and should thus in pursuance of same, release model rules and/or guidelines governing the conduct of police for effective and a non-arbitrary and non-oppressive implementation of this lockdown. Thus, an overhaul of the antique and archaic measure of lathi-charge is imperative.
Suggestions and Solutions
This author strongly believes that India needs to take inspiration from the model being followed by Israel and United Kingdom, where the police have started imposing fines on violators of lockdown.(10) The author also firmly believes that imposition fines will bring about a better discipline in people as in such times, the want-satisfying-power of money has escalated manifold and thus no sane individual would run the risk of losing it. It is also scientifically recognized that punishments like fines or penalties stimulate a rule-governed behavior in individuals known as ‘pliance’ whereby individuals tend to mould and mend their behavior as per the desire of a superior authority.(11)
Conclusion
This author is all praises for the dedication, determination and for the creative methods that they have devised to punish the individuals.(12) But at the same, the author laments the presence of lack of a uniform guidelines governing the behavior of law enforcers. The author also wants the government to take cognizance of the brutal and oppressive measures adopted by the law enforcers and take stern measures to prevent transgression of law in future. Further, the author believes that the government should empower the police to impose fines rather than resorting to archaic measure of ‘lathi-charge’.
References
[1] Damien Cave and Abdi Latif Dahir, How Far Should Police Go in Enforcing Coronavirus Lockdowns? , available at https://www.nytimes.com/2020/04/02/world/australia/coronavirus-police-lockdowns.html (Last accessed on 1st May at 12:16 AM)
[2] Ibid
[3] The revised guidelines are available at : http://164.100.117.97/WriteReadData/userfiles/15.04.2020%20Revised%20Consolidated%20Guidelines.pdf (Last Accessed on 1st May 2020 at 6:00 PM).
[4] Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, available at https://www.ohchr.org/Documents/ProfessionalInterest/firearms.pdf (Last accessed on 1st May , 2020 at 6:24 PM).
[5] [AIR 1978 SC 597]
[6] Nishita Jha and Pranav Dixit, A Doctor Was Assaulted On Her Way To The Hospital. She’s Not The Only Medic Being Attacked, available at https://www.buzzfeednews.com/article/nishitajha/coronavirus-india-doctors-nurses (Last accessed on 1st May 2020 at 6:50 PM).
[7] Basavaraj Kattimani Karnataka: Youngsters caught violating lockdown have a lesson stamped on forehead, available at http://timesofindia.indiatimes.com/articleshow/74900384.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst (Last accessed on 1st May 2020 at 7:32 PM)
[8] PI taken to task for hitting vendors, available at : https://ahmedabadmirror.indiatimes.com/ahmedabad/crime/pi-taken-to-task-for-hitting-vendors/articleshow/74921242.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst ; Delhi Police cop suspended for allegedly vandalising vegetable carts amid coronavirus lockdown , available at https://english.jagran.com/india/delhi-police-cop-suspended-for-allegedly-vandalising-vegetable-carts-amid-coronavirus-lockdown-10010092 (last accessed on 1st May 2020 at 8:00 PM).
[9] Ashish Davessar S/o Vijender Kumar Davessar v. Sate of Rajasthan , D.B. Civil Writ Petition No. 5124/2020
[10] As lockdown tightens, police begin enforcing rules with explanations, then fines, avialble at https://www.timesofisrael.com/as-lockdown-tightens-police-begin-enforcing-rules-with-explanations-then-fines/ ; Police slap Brits with coronavirus lockdown fines every five minutes with youths the worst offenders, available at https://www.thesun.co.uk/news/11517877/police-fine-brits-breaking-coronavirus-lockdown/
(Last accessed on 1st May 2020 at 9:50 PM)
[11] Niklas Törneke et.al., Rule-Governed Behavior and Psychological Problems, INTERNATIONAL JOURNAL OF PSYCHOLOGY AND PSYCHOLOGICAL THERAPY, 2008,Vol. 8(2), p.145.
[12] Omkar Khandekar, 7 creative ways Indian police punish covid-19 lockdown violators, available at https://www.livemint.com/mint-lounge/features/7-creative-ways-indian-police-punish-covid-19-lockdown-violators-11588043982457.html (last accessed on 1st May 2020).
Submitted by,
Rajas Salpekar,
Maharashtra National Law University, Nagpur.
(Image used for representational purpose only.)