Compensatory Jurisprudence of Constitutional Courts V: Peaceful Protests of Kashmir

It hardly needs elaboration that a distinguishing feature of any democracy is the space offered for legitimate dissent. One cherished and valuable aspect of political life in India is a tradition to express grievances through direct action or peaceful protest. Organized, non-violent protest marches were a key weapon in the struggle for Independence, and the right to peaceful protest is now recognized as a fundamental right in the Constitution… On the other hand, there is always a possibility that a public rally may become unruly, which can mean damage to life and property. This is when a public assembly becomes ‘unlawful’, which is defined in Section 141 of the Indian Penal Code. Under these circumstances, the district administration and the police are permitted to disperse the crowd to prevent injuries or damage. This may entail the use of force in a controlled and specified manner… How legal powers should be used to disperse an unruly crowd has been succinctly put by the Punjab and Haryana High Court in Karam Singh v. Hardayal Singh, 1979 Crl.L.J. 1211 wherein the High Court held that three prerequisites must be satisfied before a Magistrate can order use of force to disperse a crowd: First, 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; Second, an Executive Magistrate should order the assembly to disperse. Third, in spite of such orders, the people do not move away.

Recent happenings show an unfortunate trend where demonstrations and protests are on increase… Unruly groups and violent demonstrations are so common that people have become to see them as an appendage of Indian democracy. All these situations frequently result in the police using force. This in turn exacerbates public anger against the police. In Kashmir itself there have been numerous instances where separatist groups have provoked violence. In this scenario, task of the police and law enforcing agencies becomes more difficult and delicate. In curbing such violence or dispersing unlawful assemblies, the police has to accomplish its task with utmost care, deftness and precision. Thus, on the one hand, law and order needs to be restored and at the same time, it is also to be ensured that unnecessary force or the force beyond what is absolutely essential is not used. Policemen are required to undergo special training to deal with these situations. Many times the situations turn ugly or go out of control because of lack of sufficient training to the police personnel to deal with violence and challenges to their authority… human rights activists feel that the police frequently abuses its power to use force and that becomes a serious threat to the rule of law.

When we examine the present matter in the aforesaid conspectus, we find… the police personnel continued the use of force beyond limits after they had controlled the mob. In the process, they continued their lathi charge. They continued to beat up all the three petitioners even after overpowering them. They had virtually apprehended these petitioners making them immobile. However, their attack on these petitioners continued even thereafter when it was not at all needed. As far as injuries suffered by these petitioners are concerned, such a situation could clearly be avoided. It is apparent that to that extent, the respondents misused their power. To that extent, fundamental right of the petitioners, due to police excess, has been violated. In such circumstances, in exercise of its power under Article 32 of the Constitution, this Court can award compensation to the petitioners [See, Nalini Bhanot; (1990) 1 SCC 422; Joginder Kaur, (1969) ACJ 28; The State of Rajasthan, (1962) Supp 2 SCR 989; and Nilabati, (1993) 2 SCC 746]. The ratio of these precedents can be explained thus: First, it is clear that a violation of fundamental rights due to police misconduct can give rise to a liability under public law, apart from criminal and tort law. Secondly, that pecuniary compensation can be awarded for such a violation of fundamental rights. Thirdly, it is the State that is held liable and, therefore, the compensation is borne by the State and not the individual police officers found guilty of misconduct. Fourthly, this Court has held that the standard of proof required for proving police misconduct such as brutality, torture and custodial violence and for holding the State accountable for the same, is high. It is only for patent and incontrovertible violation of fundamental rights that such remedy can be made available. Fifthly, the doctrine of sovereign immunity does not apply to cases of fundamental rights violation and hence cannot be used as a defence in public law.

Keeping in view the totality of the circumstances of the present case and finding that even the petitioners are to be blamed to some extent, as pointed out above, the only relief we grant is to award compensation of 2,00,000 (rupees two lakhs only) to petitioner No.1 and 1,00,000 (rupees one lakh only) each to petitioner Nos. 2 and 3, which shall be paid to these petitioners within a period of two months.”

– Hon’ble Justice A.K. Sikri, Anita Thakur v. Govt. of J&K [Writ Petition (Criminal) No. 118 of 2007].