ON JULY 20, when thousands of youth marched towards the Indian parliament, the police cracked down with tear gas, pellet guns and nail-studded lathis, leaving more than a hundred injured, with a 22-year-old man losing his eyesight. While most evidence shows that it was a peaceful protest and later, the Rapid Action Force chief conceded to the excessive use of force, what exactly does the Indian law say on the rightful use of force to contain assembly?
The law of peaceful assembly and Jantar Mantar
Jantar Mantar's status as a dedicated protest site itself is a product of constitutional adjudication. In 2017, the National Green Tribunal (‘NGT’) banned peaceful assembly, protest or any gathering at Jantar Mantar, citing noise pollution. This takes us to the constitutional limitations on peaceful assembly, which include public order, sovereignty, security and integrity of the state, and friendly relations with foreign states, among others under Article 19(1)(b). The Supreme Court then, in Mazdoor Kisan Shakti Sangathan (2018), overturned NGT’s decision where the Union’s defence was that demonstrations leave a negative impact on foreign dignitaries to the country and tarnish bilateral relations. Justice A.K. Sikri had commendably declared that the right to protest "strengthens representative democracy by enabling direct participation in public affairs” and “exposes the flaws in governance and demands accountability" and also directed the Delhi Police Commissioner to frame guidelines. Demanding accountability was exactly what the ‘cockroaches’ were attempting to do, this summer.
The guidelines that followed limited the site to a thousand participants and interestingly prohibited the use of lathis and firearms by protestors but had no word about the use of force or weapons by the police. The guidelines also note that no marching from the designated spot is allowed unless specific written permission from the police is obtained. In the Shaheen Bagh case (2020), in the aftermath of the Delhi riots, the Court clarified that the right to protest does not extend to the indefinite occupation of public roads or to unrestricted disruption of public life. While the no-marching rule in the guidelines does have a legal effect on the July 20 Chalo Sansad, does it justify the excessive force used by the RAF?
Justice A.K. Sikri had commendably declared that the right to protest "strengthens representative democracy by enabling direct participation in public affairs” and “exposes the flaws in governance and demands accountability".
The legality of the restriction imposed on July 20
Before delving into the use of force, the specific prohibitory order that was in effect on July 20 and its legality needs to be disentangled. The evening before the proposed march by the protestors, the Delhi Police issued an order under Section 163 of the Bharatiya Nagarik Suraksha Sanhita for the entire New Delhi district, disallowing any gathering or march outside the designated protest site at Jantar Mantar, and clarified that they had received no permission for the march. DCP Sachin Sharma also announced that the protestors violating the order would ‘be liable for legal action’, which is a fair restriction under the settled law.
Nonetheless, the order itself should be legally tested because in Madhu Limaye (1970), the Supreme Court had held that this provision should be carefully applied only where the specific material facts signal ‘a likelihood of being able to prevent some harmful occurrences’ or ‘disturbance to public tranquillity’. The first day of protest at Jantar Mantar was June 6, and it was already more than a month of peaceful protest, and there were no signs of any apprehension of violence. There were no weapons carried by the protestors as prohibited by the city guidelines. There were only flowers, slogans, pieces of artwork, books and the Constitution of India that the students held in their hands. If there was any danger that the Delhi Police could have apprehended, perhaps it was the copies of the Constitution of India carried by the protesters. Perhaps that is what they feared the most.
In Ramlila Maidan (2012) too, the Court reinstated that the prohibition should be proportionate to the threat apprehended based on material facts and not on the state’s mere assumption. There is another layer to this brutal labyrinth. In Mazdoor Kisan, the Supreme Court pulled up the Delhi police for routinely renewing the prohibitory orders and virtually imposing a blanket ban on the right to protest. Eight years later, the Delhi police continued to do so, and this time, when the Gen Zs were actively coordinating their protests through digital space, the government imposed several internet shutdowns a few days before July 20 and even after.
How much force is ‘lawful force’?
The 1985 Code of Conduct for the Police in India mandates that “the police should, as far as practicable, use the methods of persuasion, advice and warning” and use ‘irreducible minimum force’ only when it is inevitable. In Ramlila Maidan, the Court held that even an assembly that had ceased to be lawful did not forfeit the protection against disproportionate force and held that the crackdown was not "proportionate to the exigency". Standing orders 72 and 309 of the Delhi police clarify the use of force: it should be only used for crowd dispersal in a controlled manner with ‘utmost restraint’. This is also only in the case of the crowd turning violent, when the police should, only with the advice of a senior officer, use minimal force and videograph the entire use of force. Before using the force, the police should announce and declare the assembly unlawful, should constantly liaise with the leaders of the protest and only then resort to minimal force with the single aim of dispersing the crowd.
At Jantar Mantar, it was the protestors who captured videos of brutal violence on protestors, pellet shots, nail-studded lathis and tear gas, which impinges the principle of proportionality and minimal use of force as elucidated above. There were even videos of women being slapped and sexually assaulted by the Delhi police. “I was leading protesters, and I had my hands folded when they fired,” said the boy who lost his eye, describing a gesture of peace towards the security forces.
What about Pellet guns? It has been treated as a Kashmir-specific weapon due to the unique insurgent situation in Kashmir as a "non-lethal" alternative to live ammunition during crowd control operations. Although the Central Reserve Police Force calls it the ‘least lethal weapon’, it is not a non-lethal weapon as per international standards. It has been a subject of legal dispute since the 2016 unrest after Burhan Wani's killing in Kashmir. The usage of pellet guns in farmer protests and Manipur riots were condemned, but its legal history dates even further back in history.
The Supreme Court in 2016 had refused to ban the weapon but directed the Centre to convene an expert committee on alternatives and ordered it not be used indiscriminately. The Committee recommended resorting to shells and grenades, STUN-LAC shells and grenades, all to disperse violent protestors, failing which they could use pellet guns. The Jammu and Kashmir High Court’s rationale to retain pellet guns was the presence of unruly mobs creating an insurgent situation, which is not even remotely relevant to July 20 and Delhi, in general. There was no insurgency or violence whatsoever. What was required was a mere crowd dispersal with a proportionate and minimal use of force.
An international human rights report noted that pellets, colloquially known as ‘bird shot’, are hunting rounds fired as a single group of hundreds of high-velocity metal balls, which could be lethal if fired from a close distance. While the Standard Operating Procedure in India sets a minimum distance of 500 feet to fire pellets, the Delhi police were much closer than that, which led to the blinding of a boy. The report accurately notes this: ‘pellet guns have the ballistic capacity to penetrate some organs, such as the eyes, causing blindness’. While the police are factually contesting the usage of pellets, there is clear documentary evidence, and if it gets proven in court, this would be the first documented use of the weapon against protesters in the National Capital Territory.
A weapon whose legality was tolerated only within the specific security context of Kashmir infiltrated an ordinary crowd control strategy in the national capital. There is no place in law for the usage of nail-studded lathis, which were also found to be used on July 20. The UN Code of Conduct for Law Enforcement Officials (1977), UN Basic Principles on the Use of Force and Firearms (1990) and UN Guidelines on Less Lethal Weapons (2020), all international guidelines, well align with the Indian law on minimal, necessary and proportionate use of weapons.
“I was leading protesters, and I had my hands folded when they fired,” said the boy who lost his eye, describing a gesture of peace towards the security forces.
Where do the injured cockroaches go now?
In J&K High Court Bar Association (2020), the Jammu & Kashmir High Court while dealing with the question of excessive use of force, held that the court can only determine the lawfulness of the force used if a ‘competent forum’ concludes its finding on the facts. The court concluded saying, “the persons alleging use of excessive force, due to which death or injury has occurred, can very well approach the appropriate forum to establish the same and seek redressal.” Now what is the competent and appropriate forum becomes the deciding question. For the July 20 violence, the National Human Rights Commission (‘NHRC’), now in a rare occasion, has taken suo motu cognizance of the excessive use of force.
Interestingly, the NHRC has raised several legal questions discussed above and asked the Delhi police to submit the facts of July 20 violence, the justification for the prohibitory order, details of the usage of lathi charge, tear gas and pellets used and the injuries sustained by the protesters including the proportionality and the SOP followed during the crowd control. Ordering the Delhi Police to investigate allegations against their own colleagues might render it futile, a criticism that is not new for the apex human rights body. This also hinges upon the Supreme Court’s consistent concern on the independence of investigation on police excess - the connivance of colleagues. Does this truly in spirit and practice fulfil the appropriate forum illustrated by the Jammu & Kashmir High Court? The ‘cockroaches’ wouldn’t leave it easily as they are stern on their demands. At least, they shouldn’t!
DCP Sachin Sharma warned against ‘legal action’ on protestors who violate the order, but never said they would be blinded and molested. The law is settled, and the use of force has comfortably transgressed the necessity and proportionality test, and the internet shutdown and sexual assault only worsen it. Besides the NHRC’s intervention, the Supreme Court on July 28 ordered the release of all minors, restrained the police from taking coercive action against “protesting students” without criminal record and is considering the constitution of a high powered investigation committee after hearing the Union. Hence, it is ultimately upon the top Court, which was also inadvertently the trigger for this whole movement, to assert whether it is unlawful use of force to protect the constitutional rights of the youths who exercised their democratic right to ensure ‘accountability and transparency’ as Justice Sikri, noted in Mazdoor Kisan.