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The Third Wave enters India: Procedural Issues and Safeguards

Is India Actually Heading for the Third Wave of Covid-19?


Introductory Remarks

“The Constitution has deliberately provided for “executive justice” and not for “rule of law” … We have the same Police Raj; orders under Section 144, Code of Criminal Procedure, continue to be made; and lathi charges have not been stopped” (emphasis supplied).

These words were spoken in 1949 by Justice (Retd.) PR Das perfectly captures the essence of the legal framework employed in India in times of the Coronavirus Disease (‘Covid’). Executive Justice, Police Raj, and Lathi Charges are the three facets of the governance exercised in Covid. Due to these facets, India went through and is currently undergoing a humanitarian crisis. Fundamental Rights are being infringed, police brutality is on the rise, marginalised sections are suffering, etc. Hence, it becomes imperative to analyse the legal framework that provides backing to the three facets and provide solutions to strike a balance between human rights and measures to combat Covid. Therefore, this is precisely the backdrop in which this article has been written.

To analyse the tools of legal governance used in Covid clearly, the article has been divided into two sections. The article has an analytical and a strategic aim. Analytically the article in Section I analyses various tools of executive justice such as Section 144 of the Code of Criminal Procedure Code (‘CrPC’), lathi charges, arrests, etc. Moreover, the article argues that how Police Raj and Lathi Charges are used in Covid is unlawful. Strategically, the article in Section II recommends solutions to curb the evils of executive justice. Furthermore, the article argues that the ‘proportionality’ standard should be used to strike a balance between fundamental rights and the public health crisis.


Section I – The assembly may not be unlawful, but the Police Raj and Lathi Charges certainly are unlawful.

Police rely more on fists than on wits, on torture more than on culture…Nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights”.

These words, spoken by Justice (Retd.) V.R. Krishna Iyer in 1981, has assumed tremendous importance in times of Covid. This is because the police authorities have wreaked havoc on the people by resorting to brutalities. The two most common tools of the Police Raj in times of Covid have been lathi charges and arrests made for disobeying orders. Accordingly, I will first analyse the legality of the lathi charges [A] followed by the legality of arrests [B].


[A] Section 129 CrPC has been tossed into the garbage by the Police.

The title of Section 129 is “Dispersal of assembly by use of civil force”. Hence, 129 becomes the focal point for analysing lathi charges. Section 129 empowers the Police to disperse an assembly by the use of force provided three conditions are met. That is first, there should be an unlawful assembly, which is likely to disturb the peace or cause violence; second, the executive magistrate or the police officer-in-charge of the police station has ordered an assembly to disperse; and third, even after such order, the assembly does not disperse. Coming to the first limb, “unlawful assembly” has been defined in Section 141 of the Indian Penal Code. Unlawful assembly means five or more people. Hence, numerous instances of lathi charges do not even pass the first condition because the Police have subjected even lone individuals to lathi charges. Coming to the second and third limb, even where unlawful assemblies have been identified, the procedural safeguards of ordering them to disperse and using force only after they refuse to disperse were not followed. In simple terms, lathi charges were used without any warning. Hence, none of the three requirements of Section 129 have been followed.

Furthermore, let us assume that Section 129 was followed. Now, Section 129 is silent on whether or not (a) the use of force includes lathi charges and (b) lathi charges can be the default reaction of Police if Section 129 has been followed. However, there are other sources, which answer these questions. Firstly, police manuals of states such as that of Kerela specify that lathi charges can only be used after the mob is “clearly warned of the intention to use force”(rule 241(2)). Furthermore, Section 70 of the UP Police Regulations and Volume 2 of the Model Police Manual reiterate the same principle. Secondly, the Supreme Court in Anita Thakur v. Union of India held that abuse and misuse of force amount to violations of human rights and dignity. Furthermore, in Ramlila Maidan v. Home Secretary, Union of India, the Supreme Court on excessive force, held that the police “have acted in a manner not permissible … and their actions have an element of criminality”. Lastly, the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials states that while dispersing unlawful assemblies, force should be avoided and if used should be restricted to minimum force necessary (¶13). Hence, these points show that Police can resort to lathi charges. However; the use of lathi charges (a) should be treated as a last resort and (b) should be proportional to the threat perceived.  This means that the default and brutal use of lathi charges in Covid is unlawful.

To conclude, I argue that how the lathi charge was used in Covid is violative of (a) Section 129 CrPC, (b) prescribed rules and regulations, (c) established precedents, and (d) international guidelines.


[B] Neither the guidelines nor Sec 144 CrPC justifies the Police Raj

Let us first specifically focus on the guidelines issued on 24 March 2020, which imposed a nationwide lockdown. Paragraph 17 of the guidelines read with Section 51(2) of the DMA and Section 188 of the Indian Penal Code makes the act of (a) refusing to comply with any direction or (b) knowingly disobeying an order punishable. Furthermore, paragraph 15 of the guidelines states that “these strict restrictions fundamentally relate to the movement of people, but not to that of essential goods”. Moreover, paragraph 4 of the guidelines states that ATMs, grocery stores, etc would remain open. To simplify, the guidelines technically do not place an absolute ban on the freedom of movement of individuals. People have to go outside for procuring essential services or for their duties. Hence, as there is no direction or order to place an absolute ban on individual movement, the question of violating (a) or (b) mentioned above does not arise in many cases. This renders many of the arrests unlawful.

Secondly, disobeying orders made under Section 144 attracts Section 188 of the Indian Penal Code. Hence, I will analyze whether not Section 144 CrPC justifies the use of force and the arrests made. Three things need to be understood here. The first point is that Section 144 orders generally do not ban individual movement. Hence, arresting individuals is not justified by Section 144 because, in Covid, Section 144 is mostly not even applicable to individuals. The second point is that, even in those cases where Section 144 is applicable, it must be proved that the existence of the order was communicated to the persons sought to be arrested. This is because the offence under Section 188 can be established only if the person knowingly disobeyed the order. The third point is that even Section 144 has some procedural safeguards. Like, Section 129, the use of Section 144 to use force to penalise people (a) should be treated as a last resort and (b) should be proportional to the threat perceived.

To conclude, I argue that the guidelines issued on 24 March 2020 do not justify various police actions because they did not place an absolute restriction on the freedom of movement of individuals. Furthermore, Section 144 also does not justify Police Raj because of its procedural safeguards.

However, the troublesome aspect is that Police Raj as a tool of executive justice easily bypasses these legal restrictions. Hence, the need of the hour is to provide solutions to tackle this problem. This is precisely the aim of the next section.


Section II – The Way Forward

There are multitudinous faults in the present model of executive justice governance. However, the two major problems are the absence of checks and balances, and the absence of a rights framework. Accordingly, I will first recommend solutions for the absence of unchecked police action [A] and then solutions for the absence of a rights framework [B]


[A] Police Complaints Authority (‘PCA’)

I will suggest two ways to mitigate the evil.  The first is to implement the directive of the Supreme Court strictly. That is to establish PCA, which is an independent body working at the state and district levels. The task of this body should be to address and investigate complaints against the Police. There is an urgent need of setting up PCA because (a) the present method of requiring sanctions from the state government to initiate proceedings against the Police and (b) the general reluctance of the Police to investigate complaints against their peers leaves the common people in a tough spot. Second, a preventive measure of keeping the subordinate courts open should be adopted, if the nationwide lockdown is imposed again. The rationale behind this is that courts should at least hear those cases that are itself a consequence of lockdown. Hence, bail applications and matters relating to police brutality, among other things, should be heard by the court.

To conclude, I argue that unchecked police action can be mitigated by (a) PCA and (b) keeping subordinate courts open.

[B] Proportionality principle is the messiah needed to protect fundamental rights.

For the present article, the third prong of the proportionality principle is relevant. It states that “the measures undertaken are necessary for that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation”. One these lines, I will furnish an example, which serves as a blueprint to establish the importance of proportionality. Firstly, the purpose behind imposing lockdown or rolling out Section 144 orders is to break the chain of transmission by maintaining social distancing. This is because the Coronavirus spreads through contact. However, it is disproportionate to ban individual movement, especially when that is for procuring essential services. To sate it in terms of the proportionality principles, the measures such as lathi charges on and arrests of lone individuals is disproportionate as there are alternative measures such as a ban on gatherings, functions, and movement of three or more people that will achieve the principle of social distancing with a lesser degree of limitation. Thus, modeled on the U.K. guidelines, the guidelines issued in India should specify that if (a) there are two(not from the same house) or less than two people and (b) they are outdoors for reasonable grounds (an inclusive definition of reasonable grounds must be stated), then that is permitted. Hence, the corollary will be that such individuals cannot be arrested or caned. This will have the effect of striking a balance between human rights and Covid.

To conclude, I argue that the absence of a rights framework can be mitigated through the proportionality principle.


Concluding Remarks

The third wave of Covid is entering the gates of India. Hence, there is an urgent need to develop a framework for responsible legal governance. Towards developing that framework, it should be made sure that human rights are not neglected while dealing with Covid. “Amid the clash of arms, the laws are not silent”. Hence, in times of Covid, which is no less than a war, an adequate legal framework can go a long way in protecting human rights.


About the Author



Manas Agrawal is a 3rd Year B.A. LLB. (Hons.) student at National Law School of India University. His interest lies in the field of both the procedural and substantive aspects 

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