“Those who make peaceful revolution impossible will make violent revolution inevitable.”
― John F. Kennedy
It is rightly said that dissent and democracy goes side by side. The recent development came as several pleas have been filed after a violent clash between Delhi Police and the Jamia students on Sunday. Meanwhile various protests were carried out in several places of Assam and West Bengal where at least 5 trains and 3 railway stations were torched.
The article will analyze what the law lays down about protesting, damaging the public property along with what is the Standard of Procedure (hereinafter referred as SOP) followed in so far as the police is concerned while dealing with protests, rioting and incidents of the likes as being seen in Delhi.
Rights and Restrictions
As far as the law is concerned, we have a Fundamental Right to Demonstrate, to form Associations in a Peaceful manner but the Constitution guarantees nothing in an absolute way, the Fundamental Right to Form Association, to Demonstrate, to make Representations collectively come with the rider of being subjected to reasonable restrictions. The law as it stands today states that one has to be reasonable while demonstrating, while making representations. There are certain ways and manners where one has to seek permissions, like in Delhi, one has to have permission from the police before having any kind of demonstration.
There is already a law of 1984, Prevention of Damage to Public Property which says that in case of destruction by people in such a manner where buses or any property for that matter is set ablaze, destroyed or any kind of destruction is done, then there is a provision for imprisonment up to 5 years. Now in 2015, there was an attempt by Government of India to bring changes in it, but the things have not yet materialized to the extent they should have. The Government wanted the market value of the destructed property should be recovered from the persons who have been identified as destroyers. One instance which happened two years ago, where one of Dera Chief in Chandigarh was arrested from Sirsa and when brought to Panchkula court, it resulted in a large scale destruction of public and private properties. High Court of Punjab and Haryana took the view that they have to pay for all the destructed property.
Duties and Rights of Police
The presence of the police is meant to ensure that no unlawful activity is indulged and in case they have issued order under clause 144, they have got to be complied by it.
Speaking strictly from the angle of the duty of the Police, there is a big NO to the destruction of the property and a big YES to right to protest that is where the law stands. Now when people start indulging in mob violence and vandalism, the riff-raffs take advantage. Now police couldn’t identify who is the stone pelter, is it the students or the riff-raffs, therefore police starts with the minimum force which is lathicharge below the waist, on the legs and then they switch to tear smoke shelling and then further force.
Talking about situations in West Bengal and Assam where the State Government is carrying out its own protest. Thus, irrespective of the place, the duty of the policeman remains the same.
If the law is being hurled, if the bombs are being hurled, there is no such law which prevents police or any security agency who is in-charge of maintaining law and order in that particular area, from not entering the university. It is only a courtesy which has developed into a practice over a period of time that police does take permission from Vice Chancellor or the Principal but only if there is time. There is a term “hot pursuit”, if in the hot pursuit, the police find that the ones whom they are chasing have entered the premises of a particular institution, even library, they certainly have all the rights to enter the library as well. Also, the Law makes no distinction whether it is students or anybody.
In case of such demonstration, what happens is that there is a sort of spiral circulation going on. One tab incites it, second tab gets incited, third tab giants it and then since crowd mentality is warm, thus the crowd becomes violent. When police finds that this kind of mentality would come, at that point of time, police has to break that mind, otherwise the damage would be much more.
As far as the issue of innocent bystanders is concerned, they are the victims by the protestors. One fact has to be seen that if in a demonstration, violence started taking place, no peaceful Citizen will stand there and remain a part of it as they will scoot so people standing there are the ones most likely to indulge in vandalism.
Crux of the matter
One major question which arises is that who decides what actions to take and what force to be used? As per law, it rests with the officer who is present at that instance. It can be the sub-inspector as well, therefore even the subordinate officer and sub-inspector can certainly give orders for dispersal and for use of force.
Coming to the amount of force that should be used, law states that minimum force should be used. Now the level of minimum force shall vary with situations, which could go till the extent of firing. The minimum force is decided according to the situation so it is the person’s duty who is taking decisions on the behalf of police to determine how much force is to be used against the crowd on the basis of how the crowd is behaving and at what stage, one should interfere.
Supreme Court in Baba Ramdev’s agitation, held that the police used its power which was beyond its requirement, at night, when the protestors were sleeping, they went and bounced upon the protestors and imposed article 144 which violated their right to demonstrate.
Apex Court stand
Citing destruction of property amid anti-Citizenship Amendment Act (CAA) protests in the national capital, Chief justice of India SA Bobde said, If violence and destruction of public property continues, we will not hear it. Further, he added, “Just because they happen to be students, it doesn’t mean they can take law and order in their hands, this has to be decided when things cool down. This is not the frame of mind when we can decide anything. Let the rioting stop,”
Supreme Court gave a set of guidelines on October 1st, 2018 to curb arson, destruction of public and private property during political agitation. Guidelines can be called Cautious Hamas’s, where the law is not there, the Supreme Court can always fill the law till the law is made for that matter which is a domain of the legislature and to promulgate that is the domain of the executive. Supreme Court is clear that no kind of vandalism would be tolerated. And it seems like if such incidents takes place in a regular manner, it would be uncertain whether the Supreme Court will the hear the plea or not. The beauty of democracy is you have the Right to Speak, you have the Right to Demonstrate, Right to Dissent but all are with the reasonable restrictions,, which means that if you have a Right, doesn’t mean you can invade someone else’s right.
The good thing is that technological aids have been invented- video cameras and CCTV’s are there which could bring up the evidence. It’s just that the visual media must play a more positive role, with more restraint and more balance. Any action can be taken after due course of enquiry either judicial or non judicial as one cannot punish a person without an enquiry. If a policeman has exceeded knowingly, intentionally with a motivation, certainly he should be punished but not before the enquiry. The media should see such things and inform the citizens accordingly.
What is enshrined in the Constitution is a Freedom of Speech, Expression, Demonstration. But the question is from where is the idea taken? We need to go back in history when Mahatma Gandhi used to indulge in a Satyagraha, there were demonstrations but the word used was “Satyagraha”, truthful demonstration where the intent was truthful and was achieved by non-violence, now demonstrations starts with a violence then that mischief culminates in the form of violence.