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SUPREME COURT OF INDIA
A.K. SIKRI, R.K. AGRAWAL, JJ.
Anita Thakur & Ors. – Appellants
Versus
Govt. of J&K & Ors. – Respondents
Writ Petition (Criminal) No. 118 of 2007
Decided On : 12-08-2016
(b) Indian Penal Code, 1860 – Section 141, 268 r/w section 143 and 144, Code of Criminal Procedure, 1973 – public rallies becoming unlawful and unruly creating public nuisance – Provisions of CrPC providing a wide array of powers to the police, including the right to use reasonable force to disperse any unlawful assembly and maintain public order. (Para 10)
(c) Code of Criminal Procedure, 1973 – Section 144 – Peaceful assembly becoming unlawful and unruly – Controlling – Use of police force on peaceful assembly ruled out – Crowd or assembly becoming violent – Use of reasonable force may be justified – Use of excessive force – Amounts to violation of human rights and human dignity and hence prohibited – Instantly, protesters taking law into their hands, pelting stones at police – Retaliating, police also using force beyond limits. (Para 13, 14)
1979 Crl.L.J. 1211 – Cited with approval
(d) Constitution of India – Article 32 – Police, by exceeding their limit of use of force violating petitioners’ fundamental right – Such violation of fundamental rights can give rise to a liability under law – Pecuniary compensation can be awarded for such a violation of fundamental rights – State would be liable for police excesses – Therefore, compensation is borne by the State and not the individual police officers – Such police misconduct requires high standard of proof – Doctrine of sovereign immunity does not apply to cases of fundamental rights violation – Cannot be used as a defence in public law – In such events, Supreme Court can grant compensation to protester-petitioners – Compensation granted. (Para 14, 15)
(1990) 1 SCC 422; (1969) ACJ 28; (1962) Supp 2 SCR 989; (1993) 2 SCC 746 – Relied upon
1979 Crl.L.J. 1211 – Cited with approval
Facts of the case:
The petitioners who are migrants of the State of Jammu & Kashmir state that they had planned to take out a peaceful protest march upto Delhi for ventilating their grievances. However, when they reached near Katra in Jammu & Kashmir, the respondent authorities through their police personnel had beaten up and manhandled these migrants in a most brutal and barbaric manner on 07.08.2007. It is the allegation of the petitioners that this incident has violated their rights guaranteed to them under Articles 14, 19, 21 and 22 of the Constitution of India and prayers are made in the petition for taking criminal action against the erring officials, including respondent Nos. 3 to 9, and also to pay compensation to each of the petitioners and other Jammu migrants who suffered serious injuries, in the sum of Rs. 10 lakhs. Prayer is also made to order the special investigation into the said episode of 07.08.2007.
Finding of the Court:
Petitioners are entitled to compensation.
The legal document addresses the issue of police misconduct during public protests, emphasizing that excessive use of force by police officials to control violent assemblies violates fundamental rights guaranteed under the Constitution. The key points are as follows:
Right to Peaceful Assembly and Protest: Citizens have the constitutional right to hold peaceful demonstrations, express grievances, and assemble without arms, protected under Articles 19(1)(a), 19(1)(b), and 19(1)(c). These rights are subject to reasonable restrictions aimed at maintaining public order and sovereignty (!) (!) .
Limits on Police Use of Force: Law enforcement agencies are empowered to disperse unlawful assemblies and maintain public order using reasonable force, which must be proportionate, minimal, and used as a last resort. The use of force should follow a progressive approach—starting with warnings, then non-lethal methods like tear gas, followed by lathi charges, and only as a last resort, firearm use. All actions must adhere to established legal and procedural standards, including prior warnings and proportionality (!) (!) (!) (!) (!) (!) .
Excessive Force and Human Rights Violations: When police exceed the limits of reasonable force, it results in violations of human rights and human dignity. Such excesses can lead to liability on the part of the State, which is responsible for police misconduct. Compensation can be awarded to victims of police excesses, and the doctrine of sovereign immunity does not apply in cases of fundamental rights violations (!) (!) .
Responsibility for Police Actions: The State bears responsibility for police misconduct, and individual officers cannot invoke sovereign immunity as a defense in cases of fundamental rights violations. The Court can grant compensation where police actions are found to be unlawful or excessive (!) .
Case of Police Excess During Protest: In instances where police used force beyond what was necessary or continued to assault protesters after they were subdued, such actions were deemed violations of their rights. The Court recognized that such excesses could have been avoided and awarded compensation to the petitioners accordingly (!) (!) .
Proportional and Controlled Use of Force: Police must ensure their actions are proportionate to the threat, and force should be discontinued once the situation is under control. Proper training and adherence to police manuals and international standards are essential to prevent abuse and protect human rights (!) (!) (!) (!) (!) (!) (!) (!) .
Balance Between Rights and Restrictions: While fundamental rights to speech, assembly, and movement are protected, they can be lawfully restricted to prevent violence, public nuisance, or threats to public order. Authorities must act within legal limits and avoid excesses when dispersing crowds or controlling protests (!) (!) (!) (!) (!) .
Judicial Role and Compensation: The judiciary plays a crucial role in safeguarding rights by ensuring that police actions do not violate constitutional guarantees. When violations occur, courts are empowered to award appropriate compensation and direct accountability (!) .
In summary, the document underscores that police must exercise their powers within legal bounds, with a focus on minimal and proportionate force. Excessive or barbaric use of force violates fundamental rights, and the State can be held liable for such misconduct, including awarding compensation to victims.
JUDGMENT :
A.K. Sikri, J.
In the present writ petition filed by the petitioners under Article 32 of the Constitution of India, the petitioners who are migrants of the State of Jammu & Kashmir (hereinafter referred to as the 'migrants') state that they had planned to take out a peaceful protest march upto Delhi for ventilating their grievances. However, when they reached near Katra in Jammu & Kashmir, the respondent authorities through their police personnel had beaten up and manhandled these migrants in a most brutal and barbaric manner on 07.08.2007. It is the allegation of the petitioners that this incident has violated their rights guaranteed to them under Articles 14, 19, 21 and 22 of the Constitution of India and prayers are made in the petition for taking criminal action against the erring officials, including respondent Nos. 3 to 9, and also to pay compensation to each of the petitioners and other Jammu migrants who suffered serious injuries, in the sum of Rs. 10 lakhs. Prayer is also made to order the special investigation into the said episode of 07.08.2007.
2. Giving detail background of the grievances of the migrants leading to the said incident, it is mentioned that Ms. Anita Thakur, petitioner No.1, is a General Secretary of the Jammu & Kashmir Panthers Party whereas petitioner No.2 is an Advocate and also the Secretary of the said Party, who have been espousing the cause of the Jammu migrants (about 2200 families) who were forced to leave their homes between 1996-1999 in view of the terrorist attacks on these families. Third petitioner is a senior Journalist who was also assaulted and arrested on 07.08.2007 for giving media coverage of the incident in question.
According to the petitioners, these migrants are living in most miserable conditions and it became difficult for them to survive. Out of these 2200 migrant families, about 950 families have been residing in broken huts of Talwara camp. For redressal of their grievances, a writ petition in the nature of PIL (PIL No. 534/1999) was filed in the High Court of Jammu & Kashmir wherein order dated 06.09.2002 was passed by the High Court directing that persons from Poonch, Rajouri, Doda, Udhampur and Jammu provinces, who had suffered and been forced to migrate on account of militancy would be entitled to the same treatment as migrants from the Kashmir Valley. This order was challenged by the State of Jammu & Kashmir by filing SLP (C) No. 34/2003 in this Court. In that SLP, the order dated 12.07.2006 was passed to the following effect:
“Pursuant to our direction, the Relief Commissioner (Migrants) filed an affidavit on 03.12.2004 and in the affidavit the details are given regarding the relief measures given to the Kashmir migrants and it is stated that the relief is being provided to various migrants who are Kashmiri migrants and to migrants other than Kashmiri migrants. In view of the averments stated in the affidavit, we do not find any necessity to give further directions. However, counsel for the respondents stated that some of the migrants are not being regularly paid the relief measures and since March 2004 they are not given any benefits. The Relief Commissioner may look into the matter and see whether they have been provided with all relief measures to which they are entitled as per the policy. If there are lapses on the part of the officials or any arrears to be paid to the migrants, the same shall be made available to them at the earliest. The Relief Commissioner would be at liberty to consider the migrant status of any person and if it is found that if such persons are not real migrants he would be at liberty to deny the relief measures to such persons. With these directions, the appeal is disposed of.”
3. It is averred in the petition that in spite of the aforesaid order directing the Relief Commissioner to look into the complaints by migrants, who claimed that they were not regularly provided relief measures since March 2004 and to provide all benefits to th
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