By: Abhiraj Das and Nihal Deo |
On the 24th February, when the international community was keenly looking forward to the U.S. President’s visit to India, a severe riot broke out in Delhi. More than 50 people are reported to have lost their lives with hundreds being injured, shops thrashed and several homes set ablaze. The North-East Delhi riots, as Ashutosh Varshney has noted, is surely the worst riot that has taken place in the nation’s capital in recent decades. With the political parties playing the blame game, the authorities trying to hide themselves from taking the responsibility of failing to control the spread of violence, it becomes important to look-into the legal aspects concerning riots and its control.
Few legal provisions:
Section 146 of Indian Penal Code, 1860 (hereinafter “IPC”) provides that when an unlawful assembly or its member uses force or violence in furtherance of the common object of such assembly then every member of that assembly is guilty of rioting. The punishment prescribed under section 147 for the same may extend to two years or fine or both. However, when rioting is with deadly weapons, then under section 148, the scope of punishment increases to three years of imprisonment, or fine, or both. Now what is pertinent to note here is that the offences under these sections are cognizable.
Under Section 154 of the Code of Criminal Procedure, 1973(hereinafter “CrPC”) it is mandatory for the Police to register an FIR if it receives information concerning a cognizable offence. In Lalita Kumari v. State of U.P., the Supreme Court of India had noted that in situations constituting of cognizable offences, “there is no need to conduct any preliminary enquiry… Action can be taken against the police officer who was duty-bound and failed to perform such duty of compulsorily registering an FIR under Section 154.” It is appalling to note that in the sheer abdication of its duties, the Delhi Police failed to register FIRs against various acts where it was legally required to be filed.
Further, Section 41 of CrPC gives power to any police officer to arrest any person, without any order of magistrate or warrant, who has committed a cognizable offence in presence of a police officer, or against whom a reasonable complaint has been made, or credible information has been received or a reasonable suspicion exists that such person has committed any cognizable offence. The Delhi Police clearly erred in not taking requisite actions under section 154 as well as section 41 of the CrPC on many instances just before the outbreak, as well as at the time of the outbreak of the riots. One such instance was not taking actions against BJP leader Kapil Mishra’s “hate speech”, which many believe to be one of the prime reasons behind the outbreak of riots. It is worthy to note here that section 153A of IPC makes promoting of enmity, by an act or statement, between different groups on grounds such as religion, an offence and it is cognizable and non-bailable.
When the situation becomes such where it appears that the unlawful assembly is likely to cause the disturbance of public peace, then section 129 of CrPC empowers Executive Magistrate or any other police officer to pass an order for the use of civil force in dispersing such assembly. Further, section 130 provides the scope for deployment of the armed forces if the situation is so grave that it becomes essential for ensuring public security.
The Hon’ble Supreme Court, in Pt. Parmanand Katara v. Union of India and others, had noted that the state has a paramount obligation under Article 21 of the Constitution to preserve life. Similar view has been vehemently expressed by the Delhi High Court in Bhajan Kaur v. Delhi Administration. It had opined that the state is dutybound and responsible to protect and safeguard life and liberty, as enshrined under Article 21, of persons from mob-violence. Methods and strategies must be formulated by State functionaries for ensuring such security: “Riots, more often than not, take place due to weakness, laxity and indifference of the administration in enforcing law and order.” It further went on to observe that timely and efficient actions and steps by authorities can prevent the riots from spreading.
Further, the fifth report of the Second Administrative Reforms Commission, released by the Government of India in 2007, had recommended that to deal with such circumstances, a “free-hand” should be given to the District Magistrate or the Commissioner of Police and the Superintendent of Police. It had also urged that unwarranted political interference should not be permitted at any cost while handling such situations. Similarly,Justice Raghubir Dayal and Madon Commissionshad criticized political parties for playing with the communal feelings, and ministers for prying with local administration or making inciting statements which diluted the efforts of the government. Giving police the liberty to take measures according to their estimation of the gravity of the matters, requires them to duly discharge their duties and responsibilities. It should not so happen that the police officers start acting as per their whims and fancies, which, contrarily, fuels up the situation. The 1968 recommendations of the National Integration Council (NIC) entails that:
The District Magistrate and Superintendent of Police should be made personally responsible for not taking prompt action to prevent or stop communal disturbances;
Failure to take prompt and effective action should be considered as dereliction of duty and officers concerned should be dealt with accordingly.
Deployment of armed forces often deescalates the tension and prevents situations from aggravating further. However, apparently there is a predilection amongst the states to not immediately deploy the armed forces even if the situation so requires. It has been observed by the Justice B.N. Srikrishna Commission that, “the top officers and the State Administration should not treat the calling out of the army or any other force as infra dig or as a blow to their pride. In a contingency where it is required, after honest and self-searching appraisement, the army authorities should at once be moved for operational duties for dispersal of unlawful assemblies.”
At the time when one would look up to the Judiciary – the much-revered guardians of the life and liberty of individual – the Hon’ble Chief Justice of India making a remark that “courts have ‘never’ been able to prevent riots, cannot ‘prevent’ them”, and Delhi High Court adjourning the hearings for registering of FIRs against political leaders’ hate speeches, which are said to be the prime reason for the riot, by four weeks only aids in deflating the hope of the citizens in the system.
However, on the contrary, Supreme Court in Lalita Behura v. State of Orissa had observed, “we respectfully concur with the view that the court is not helpless and the wide powers given to this Court by Art.32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution”. The constitutional courts of India are also empowered under their writ jurisdiction to take suo moto cognisance of matters if the situation so warrants.
Any form of communal violence or riots that take place is a matter of serious concern since they attack at the very principles of our Constitution, namely, life, liberty, fraternity, unity and integrity of the nation. When such incidents occur, a sense of fear arises among the citizens, even if they are not directly affected by the violence and thus, the responsibility of authorities increases several folds. Such incidents question the very mechanism of the state machinery. The role of every organ of the state is equally important in ensuring that occurrence of communal violence or any such incidence is not repeated, and if it has occurred, adequate actions must be taken against the culprits without any delay. It is onto the state functionaries to ensure that the environment is “conducive” for the legal process to take its course. Instead of putting themselves away from the responsibility, the authorities of different organs at various levels should collectively work in dealing with such situations. When all the machinery fails to duly discharge the duties, the Judiciary should take responsibility upon its shoulder to ensure the delivery of justice.
The article was originally published on the Criminal Law Studies Blog of NLU- Jodhpur, here.
Authors are the students of Gujarat National Law University, Gandhinagar.