10/21/2020 [Column] 'From Emasculating Fundamental Rights To Selective FIRs: Need A Remedy Against Officers Of State' By Justice Madan

ice Madan Lokur

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[Column] 'From Emasculating Fundamental Rights To

Selective FIRs: Need A Remedy Against O cers Of
State' By Justice Madan Lokur
Justice Madan B. Lokur (Retd.) 5 Oct 2020 8:52 PM

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From emasculating fundamental rights to selective registration of FIRs, citizens need a remedy to
against o cers of the state who do not act in good faith,

When a citizen intentionally violates the law (mens rea) he or she is liable to be tried, convicted and

punished. In respect of some offences, intention might be absent but the law casts strict or

absolute liability, thereby inviting punishment. The imposition of an immediate ' ne' on LG Polymers

by the National Green Tribunal for the styrene gas leak in Vizag is a fairly recent example. The

question for consideration is: If an o cer of the state intentionally violates the law, shouldn't that

person be liable for punishment like any citizen?

Also Read - Getting To Yes – An Understanding And Summation

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 o cers of the state acting not in

good faith.

Also Read - Labour Reforms and the Elusive Quest for Workers' Rights

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The state is pretty powerful and can, by law, if the concerned authority is reasonably and

subjectively satis ed, prevent the possible commission of an offence. This is a sort of pre-crime

scenario made famous by the Hollywood lm 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.

Also Read - Limitation Act In COVID- 19 Times: Need To Reconsider Decision In 'Sagufa Ahmed

vs. Upper Assam Plywood'

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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

nancial – 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?

Also Read - The Crumbling Rule Of Law In India

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

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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 e cacious 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.

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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
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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.

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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 arti cially

engineer a tra c jam. Disruption of tra c 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

zzles 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 o ce 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 tra c 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 rst instance and sought an explanation from them.

What explanation was given is not known, but the fact remains that these persons were under

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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?

Remedy for physical damage to property

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

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act in respect of any public property" other than exempted property "shall be punished with

imprisonment for a term which may extend to ve years and with ne." 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.

In Uttar Pradesh, the state government put up hoardings and banners in several parts of Lucknow

identifying the protestors against whom notices have been issued, but not yet proved guilty. This

was apparently part of a name-and-shame campaign. In a public interest petition, the Allahabad

high court directed removal of the hoardings and banners forthwith. The state government did not

comply with the order of the high court and approached the Supreme Court with a petition

challenging the directions given by the high court. Interestingly, the state government did not ask

for a stay of the high court order and therefore the Supreme Court did not stay the direction to

remove the hoardings and banners forthwith. The order of the high court was not complied with.

The functionaries of the state effectively committed contempt of court. But who is to make

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anybody accountable for this disrespect shown to the orders of the high court? Are these

functionaries above the law and the courts also? Are they not accountable to anybody, including

those named and shamed, who may not even be guilty? Again, these kinds of events induce a

feeling of impunity in o cials of the state and life goes on for the hapless citizens who have no

effective remedy at law. Is it any wonder then that encounter killings go unpunished?

Registration and investigation of rst 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 identi ed 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 de cit 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.

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Are we witnessing a new abnormal or are we participating in building a new abnormal narrative that

will be handed down to coming generations? Is it not time to introduce accountability where not

only citizens but functionaries of the state are held equally answerable under the law and the

constitution? The more we delay this, the more di cult it will become to make the state

accountable. Who will bell the cat?

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

This article was rst published in The Wire.in

TAGS SEPERATION OF POWERS  JURISPRUDENCE  CAA  NRC  RAPE  HATHRAS RAPE  DELHI POLICE 

DELHI RIOT  UP POLICE  POLICE  POLICE ATTROCITIES  HUMAN RIGHT  ARTICLE 21  RIGHT TO LIFE 

JUSTICE MADAN B LOKUR 

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10/21/2020 [Column] 'From Emasculating Fundamental Rights To Selective FIRs: Need A Remedy Against Officers Of State' By Justice Madan Lokur

2 Draft EIA Noti cation 2020 Does Not Provide For Ex Post Facto Clearance To Violation
Cases: Centre Tells Lok Sabha [Read Statement]

3 Operation of Poultry Farms Has Potential to Damage Environment Which Needs to be

Regulated: NGT Issues Directions [Read Order]

4 Act Against Authorities Who Allowed Construction Of Jharkhand HC And Vidhan Sabha
Buildings : NGT Asks Govt. To Halt All Construction Work Without EC [Read Order]

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10/21/2020 [Column] 'From Emasculating Fundamental Rights To Selective FIRs: Need A Remedy Against Officers Of State' By Justice Madan Lokur

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10/21/2020 [Column] 'From Emasculating Fundamental Rights To Selective FIRs: Need A Remedy Against Officers Of State' By Justice Madan Lokur

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