[Column] 'From Emasculating Fundamental Rights To Selective FIRs: Need A Remedy Against Officers Of State' By Justice Madan Lokur

I ask this question because in the recent past, there have been several reported instances of functionaries of the state (mainly policemen) who have violated the law deliberately but no punitive action has been taken against anyone. Are they above the law, unlike mere citizens, or is it that they are just not accountable to anybody? The time has come, I believe, to introduce an accountability jurisprudence and equal treatment under the law in respect of officers of the state acting not in good faith.

The state is pretty powerful and can, by law, if the concerned authority is reasonably and subjectively satisfied, prevent the possible commission of an offence. This is a sort of pre-crime scenario made famous by the Hollywood film Minority Report. Preventive detention is an extreme example resorted to by the state in situations where public order or national security is involved. Preventive detention is the result of a prognosis based on the past conduct of a person. On a much lesser scale, the provisions of section 144 of the Code of Criminal Procedure (CrPC) can be invoked, broadly, only in urgent cases of nuisance or apprehended danger to public order and law and order since they deal with immediate prevention and speedy remedy. An order under this section is not necessarily based on the past conduct of a person or a group of persons.

In other words, the law, as it stands, makes adequate provision for maintenance of law and order, public order and national security. Therefore, it is not at all necessary for functionaries of the State to bend or twist the law (as has happened in the recent past) to arrive at some imaginary conclusions. By twisting the law, they cause tremendous inconvenience – physical, mental and financial – to the people, to the extent of even taking away their personal liberty and causing them to spend jail time. What remedy do the people have against such misuse and abuse of the law and when will it stop, if at all?

Curbing fundamental rights

A few real-life examples will indicate how, through twists and turns, some fundamental rights of citizens are being curbed, leaving some of them without any real remedy and no state functionary being held accountable for violations. Article 19(1)(b) of our constitution states that all citizens shall have the fundament right to assemble peaceably and without arms. However, the state can, by law, impose reasonable restrictions on the exercise of that right in the interest of public order. A few years ago, individuals and some groups exercised this right of assembly on the lawns of India Gate to protest the brutal gang rape of Nirbhaya and lack of safety for women. These protests were spread over a few days and were more or less spontaneous, peaceful assemblies.

Similarly, last year, a peaceful and non-violent protest was planned near the Red Fort in Delhi against the Citizenship Amendment Act (CAA). Ordinarily, I would imagine that conditional permission to hold a peaceful protest against the CAA would be granted for the asking. However, permission to peaceably assemble was denied. The real reasons for denying permission are not available in the public domain, but a possible threat to public order (not law and order) and perhaps the 'political overtones' of the assembly or something similar seems to be the only plausible reason for denial.

Is that good enough? I don't think so, otherwise, no political party (for example) would ever be able to protest against anything on the specious plea that it would disturb public order. But since the real reason is not available, let's leave it that.

However, the point is that when required, a reason can be proffered by the state to deny citizens the fundamental right to assemble peaceably without arms. Is mounting a challenge to an order denying permission by knocking on the doors of the courts an efficacious remedy? If the courts hold the order as invalid or illegal, will anybody in the state be held accountable? I don't think so. So, whatever the outcome of the litigation, the state wins.

In the interest of law and order, the state can put some conditions on those who organise a peaceful assembly. But the conditions have to be reasonable and discretion in this regard has to be exercised judiciously and not arbitrarily. For example, the authorities cannot direct that the protest be held at some God-forsaken part of town which nobody ever visits or restrict it to a small area so that the numbers are few and extremely limited such that the impact of the protest is completely lost. A broad-minded and meaningful exercise has to be carried out by the state's authorities so that citizens can exercise their right without causing grave inconvenience to others. Looked at from this perspective, unless good reasons are given, there can be no occasion to deny conditional permission to hold a protest meeting anywhere, including near Red Fort.

To make matters worse for any possible assembly, resort is now being had to passing an order under section 144 of the CrPC in the apprehension of danger and at the drop of a hat. This means not only a denial of the fundamental right to assemble peaceably, but also that anyone participating in that assembly would be liable for imprisonment for disobedience of a lawful order. The misadventure could result in imprisonment of participants under section 188 of the Indian Penal Code (IPC) (disobedience to order duly promulgated by public servant) for one month, but if the state functionaries believe that the disobedience would tend to cause a riot or affray, the imprisonment could stretch for six months.

It's not hard to imagine the inequity of the situation. Assuming the section 144 order is unwarranted, a slow-moving justice delivery system would decide its validity in good time, but by then the participants in that peaceful assembly would have had to cancel the protest or undergo imprisonment for about a month, if not more. An excellent and legal way to stymie a peaceful protest.

Again, a real-life example. In Karnataka, a section 144 order prohibiting a peaceful assembly on December 18, 2019 was quashed by the Karnataka high court only on February 13, 2020 – too late to have any meaning for the participants. So, what would appear to be a perfectly legal and valid exercise of power was found by the high court to have been "completely illegal" and that "the illegality cannot be cured or tolerated even after giving necessary latitude."

Consequently, there was an unlawful emasculation of a fundamental right of some of our citizens, a right guaranteed by our constitution. Due to the absence of an accountability jurisprudence, the functionaries of the state in Karnataka got away with their 'misdeeds' without being held liable for effectively declaring as illegal the exercise of a fundamental right of peaceful assembly.

There are other ways of emasculating the fundamental right of peaceful assembly, and this has also happened in the past. Barricades are set up ostensibly on some intel, but actually to artificially engineer a traffic jam. Disruption of traffic for an hour or two as commuters crawl through the security check barriers is more than enough time to put a dampener on an assembly which then fizzles out due to the absence of a sizeable number of participants. Coupled with this, one or two metro stations at key points in the city are closed, apparently for security reasons. These measures assist in achieving the objective of scuttling the protest, but what is painful is the collateral damage caused to the general public. Genuine office goers, students, workers and others who have no connection with the protest are greatly inconvenienced. So, to prevent an unpalatable event from occurring, powers available under the law are wrongly exercised, causing great inconvenience to many innocents.

The larger issue also is whether the fundamental right to assemble peaceably and without arms should be curtailed merely because the assembly chooses to express a point of view contrary to what the state professes. The answer to this is clearly in the negative. The narrower point, however, is that while the state recognizes the right of citizens to protest, it can through a subterfuge, prevent them from effectively exercising that right should it choose to do so. Prohibitory orders can be passed in the garb of being regulatory and they can also be kept out of public discourse by shutting down the internet for a couple of hours so that social media is silenced. Late last year, the internet was shut down in Delhi for four hours. A challenge to the shutdown order was not entertained by the high court on December 24, 2019 on the ground that it was temporary. Frankly, a shutdown order even for two hours can achieve its purpose, like a traffic jam.

Novel forms of harassment

A novel form of harassment was recently employed. Membership of an unlawful assembly (section 143 of the IPC) is a bailable offence. So also a violation of section 188 of the IPC. But the police can twist the law as had happened in March in Delhi. Three persons were arrested by the police for some other bailable offences and produced before a magistrate. She pulled up the police for not offering them bail for bailable offences in the first instance and sought an explanation from them. What explanation was given is not known, but the fact remains that these persons were under arrest at least for a few hours when they could have been immediately released on bail. Arrest and detention even for a few hours and production before a magistrate has its own adverse consequences, particularly on an innocent person, and should never be taken lightly by the authorities.

There are other ways of inconveniencing protestors. For example, persons detained from a protest site in Delhi were taken in a Black Maria and released and dumped miles away from the protest site. Perfectly legal, one might say. But these protestors were effectively compelled to walk several miles to reach home. Therefore, it is not only accountability that enables the state to harass innocents, but also compassion that is often lacking and there is really no remedy for that.

The sum and substance of these events of the recent past suggest that if the functionaries of the state are desirous of preventing lawful and peaceful protests, they have ways and means to do so, lawfully or by twisting the law. And if protestors and others are inconvenienced, that's just too bad. If the protestors are detained and arrested, even that's their bad luck.

On the accountability aspect, how can the citizenry check the misuse or abuse of power? The speed at which the courts function indicates that a remedy at law is not meaningful. Should the state be permitted to inconvenience hundreds of people in a city only to prevent a few dissenters who aspire to peacefully protest against a view or policy? Should the state be permitted to prevent dissent or protest, thereby violating a fundamental right guaranteed to citizens? What about the principle of proportionality that has eventually been accepted by the Supreme Court, that all options be weighed before a decision is taken? Is it not possible for the police to tackle a protest here or there, after placing reasonable restrictions and conditions on the protestors and organisers and the manner of protest? Is emasculating a fundamental right the only method in the armoury of the state to quell dissent? Is it always necessary to quell dissent?

Going a step ahead, let's assume that a peaceful assembly turns violent and there is physical damage to property. The state has a remedy for that too. It is called the Prevention of Damage to Public Property Act, 1984. Interestingly, it provides that "whoever commits mischief by doing any act in respect of any public property" other than exempted property "shall be punished with imprisonment for a term which may extend to five years and with fine." The keyword is "whoever" – it is not limited to a protestor, but also includes a functionary of the state, that is, a policeman or policewoman.

Protestors who are alleged to have damaged public property in Uttar Pradesh have been sent a notice by the state, under the provisions of this statute, demanding monetary compensation for the damage caused. The issue is before the Supreme Court and I would not like to comment on it. Amounts have been claimed from some alleged protestors for something as petty as damage to footwear, begging the question of whose footwear and was it the depreciated value. But more seriously, there are enough clippings shown on national TV channels of the police damaging the library of a university, damaging private property in the form of breaking motorcycle tail lights, wielding a lathi on a fallen student for whose protection some girls had to stand up, smashing CCTV cameras and so on.

Sure, citizens must be liable for the damage caused (if proved), but who among the functionaries of the state are accountable for the damage that they cause, not only to public property such as CCTV cameras, but also to the private property of persons who perhaps have no connection with the protest, except that their motorbikes were parked in the vicinity? Instances like these establish the need for an accountability jurisprudence to be developed with equal treatment under the law – citizen or state functionary.

Registration and investigation of first information reports (FIRs) is another area of concern. In early January this year, some persons had attacked students in a university in Delhi. The attackers wore masks (those were pre-COVID-19 days) but some of them were identified in a couple of days by the police and their name and address came to be known. This was quite remarkable and must be applauded. Unfortunately, several months have gone by but it appears that the police have not been able to apprehend these attackers or it is possible I may have missed the news of arrest. This is more than surprising and really, what inference can one draw? The damage to university property, which is public property, might have been assessed, but no claim has been made by the state against the attackers for the damage caused in derogation of the Prevention of Damage to Public Property Act, 1984. Also, no name and shame in this case (not that I support it). Do the words in the law "whoever commits mischief…." have a limited meaning?

A similar pattern can be found in the manner in which the riots in northeast Delhi were dealt with. The Delhi high court observed in late February that the atmosphere was not conducive to register FIRs against some worthies. When will the atmosphere become conducive, if at all? Does anybody really know, or care? Is the atmosphere conducive for registration of FIRs against some people but not others? Who decides this and who decides whether or not to obey the constitution bench judgment of the Supreme Court in this regard? This is a new dimension added to impunity and lack of accountability of functionaries of the state. These events will slowly but surely erode, or probably have, eroded faith and caused a trust deficit not only in some state governments and their functionaries, but also in the criminal justice delivery system that is expected to ensure expeditious justice. This, to my mind, is a frightening scenario playing out in front of our eyes. And by the way, arbitrary arrests and encounter killings have not even been discussed.

(Madan B. Lokur is a former judge of the Supreme Court of India.)

This article was first published in The Wire.in