From UPSC perspective, the following things are important :
Prelims level : Right to Protest
Mains level : Freedom of speech and the reasonable restrictions
The police action in Delhi’s Jamia Millia Islamia, where the police entered the university campus and employed force against students is being widely criticised across the country. What do the Constitution and laws of India say on the right of police to intervene in protests and agitations?
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”.
- These include 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.
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.
- 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… may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly”.
- Also, “If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, (the) Executive Magistrate or police officer… may proceed to disperse such assembly by force.
- This may require the assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons who form part of it.
- Section 130 of the CrPC, which deals with “Use of armed forces to disperse assembly”, 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”.
- 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 “overawe by criminal force, or show of criminal force”, governments or public servants, or to “resist the execution of any law, or of any legal process”, or “to commit any mischief or criminal trespass, or other offence”, etc.
- IPC Section 146 says, “Whenever force or violence is used by an unlawful assembly, or by any member thereof, in the prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.”
Pre-requisites for use of Force
- In ‘Karam Singh vs Hardayal Singh And Ors’ the High Court of Punjab and Haryana underlined in its judgment of August 8, 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.
- Thirdly, in spite of such orders to disperse, such assembly does not disperse.
In the United Nations
- The ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’ adopted in 1990, 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”, among other things, “exercise restraint in such use and 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 shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.”