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Recent events have brought to the light the violence used by police against students protesting against Citizenship Amendment Act 2019. Some justify the use of force by the police on the grounds that it was necessary to stop the students from stone-pelting while the others are against the use of force by the police. Many Bollywood actors have come out in support of protesters and condemned the use of force by the police authorities. The purpose of this article is to analyse whether or not the violence used by the police is legal and if so then up to what extent the Police can use violence against citizens who are protesting by exercising their fundamental right under Article-19(1)(a) and Article-19(1)(b) of Constitution of India.

Article 19(1)(a) of the Constitution of India states that “all the citizens have right to freedom of speech and expression” and Article 19 (1) (b) states that “all citizens have the right to assemble peaceably and without arms.”

This right includes the right to protest peacefully and subject to the condition that the assembly is unarmed. However, such a right is not absolute and it is subject to Article 19(2) and Article 19(3).

Reasonable Restrictions under the Constitution of India

Article 19(3) provides that “nothing in sub-clause (b) shall affect the operation of any existing law in so far as it imposes or prevents the State from making any law imposing, in the interest of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.”

The Government is, therefore, empowered to impose reasonable restrictions on the right to assemble or hold meetings, which may lead to a disturbance of public tranquillity. Such reasonable restriction allows police authorities to handle agitations, protests and unlawful assemblies under the Indian Penal Code, the Criminal Procedure Code, the Police Act of 1861 and the Maintenance of Public Order Acts of various States.

In Madhu Limaye vs Sub-Divisional Magistrate[1], the Supreme Court has held that the expression “in the interests of public order” in the Constitution is very wide and it is capable of taking within itself certain acts which disturb public tranquillity or are breaches of the peace. 

In Bimal Gurung v. Union of India[2], Supreme Court observed that – “Demonstrations whether political, religious or social or other demonstrations which create public, disturbances or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, are not covered by protection under Article 19(1). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication has intended the feelings of the group which assembles. From the very nature of things a demonstration may take various forms; “it may be noisy and disorderly”, for instance, stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Article 19(1)(a) or (b).”

Prohibitory orders under Section 144 CrPC

Section 144 of CrPC confers power on the District Magistrate, Sub Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf, to issue an order or direction which has the effect of imposing reasonable restrictions on the exercise of rights guaranteed by Article 19(1)(a) and Article 19(1)(b).

Thus, Commissioner of Police has the power to pass a prohibitory order under Section-144 CrPC forbidding –

(i) the holding of any public meeting, (ii) assembly of 5 or more persons, (iii) carrying of firearms, banners, placards, lathis, spears, swords, sticks, brickbats etc. (iv) shouting of slogans, (v) making of speeches etc., (vi) processions and demonstrations and (vii) picketing or dharna in any public place within the area specified in the Schedule and Site Plan appended to the order, without a written permission.

However, such power under Section 144 can only be exercised if it meets the test of proportionality as laid down in Modern Dental College vs State Of Madhya Pradesh, where the Supreme Court held that the law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such measures are necessary.

In Re-Ramlila Maidan Incident vs Home Secretary it was observed that a bare reading of Section 144 Cr.P.C. shows that :

  1. It is an executive power vested in the officer so empowered;
  2. There must exist sufficient ground for proceeding;
  3. Immediate prevention or speedy remedy is desirable; and
  4. An order, in writing, should be passed stating the material facts and be served the same upon the concerned person.

Violation of such prohibitory order under Section 144 may warrant the police to use force as prescribed under Section 129 CrPC. However, whether the force used in a particular case, to disperse such a demonstration, is reasonable or not would depend upon the facts and circumstances of each case.[3] It would depend upon whether the demonstrations or the mob constituting unlawful assembly are holding weapons or they try to pelt stones at the police or are equipped with lathis, etc. with an intention to attack the police or use some kind of force when the police try to disperse such a mob.

Use of Force under Section 129-131 CrPC

Section 129 of CrPC provides that any Executive Magistrate and officer-in-charge of a police station, and in the absence of the officer-in-charge, any police officer not below the rank of sub-inspector, may command the dispersal of any unlawful assembly, or assembly of five or more persons which is likely to cause a disturbance of the peace. If the assembly shows no disposition to disperse quietly, force may be employed to disperse it. The section also provides that the Magistrate and Police officer so authorized, may take the assistance of members of the public (excluding members of the armed forces). Such magistrate and the police officer may also arrest and confine the persons who form part of such assembly, in order to disperse such assembly or that they may be punished according to law.

Where this is ineffectual, the Executive Magistrate of the highest rank present may cause it to be dispersed by the armed forces. The military must use minimum force and cause minimum injury to person and property. (S.130)

In cases of emergency, when no Magistrate is present, a Commissioned or gazetted Army Officer can act on his own initiative; but he should communicate with the nearest Magistrate at the earliest opportunity. The officer has also the power to take into custody any offender. (S.131)

Rules and Guidelines to be followed by Police

Before any force can be used, three prerequisites are to be satisfied. Firstly, there should be an unlawful assembly with the object of committing violence or an assembly of five or more persons likely to cause a disturbance of the public peace. Secondly, such assembly is ordered to be dispersed and thirdly, in spite of such orders to disperse, such assembly does not disperse.[4]

The use of force by police can range from simple arrest to use of firearms. Such force should be used for restoring the situation and preventing crimes. Any legislative Act does not prescribe the quantum of force to be used to disperse the assemblies but as a matter of precedence following principles are to be kept in mind:

  1. No more force should be used than is necessary;
  2. It should not be used as a punitive measure;
  3. It must cease immediately after the objective is gained [[5]]

Additionally, Punjab Police Rules, as also applicable to Haryana and Delhi, sets out instructions regarding the use of force by the police against the crowd as under [6]

  1. The main principle to be observed is that the degree of force employed shall be regulated according to the circumstances of each case. The object of the use of force is to quell a disturbance of the peace, or to disperse an assembly which threatens such disturbance and has either refused to disperse or shows a determination not to disperse, no ulterior objects, such as punitive or repressive effect, shall be taken into consideration.
  2. Any officer in charge of a Police Station or Police officer of higher rank has power, independently of the authority of a Magistrate, to call upon an unlawful assembly to disperse and to use force to disperse it. (See Section 127, Criminal Procedure Code). When a Magistrate other than an honorary Magistrate) is present or can be communicated with without such delay as would prejudice the situation, an assembly shall not be called upon to disperse nor shall force be used to disperse it without orders of such Magistrate, provided that, if a gazette Police Officer is present, and no Magistrate having first class or higher powers is present, such Police officer shall act independently in ordering an assembly to disperse. In other circumstances the senior Police officer present, having the powers of an officer in charge of a Police Station shall act on his own responsibility, but shall communicate with and report his action to the senior Magistrate, who may be accessible, as soon as possible. Whether acting under the orders of a Magistrate or not, once the order to disperse a crowd has been given, the method by which force shall be applied and the degree of force to be used shall be decided by the senior Police officer present, provided that, if the District Magistrate is himself present, he, as head of the Police force of the district, shall be recognized to be the senior officer present. For the purposes of this rule, a Sub-Divisional Magistrate within his subdivision shall have the status of a District Magistrate, i.e. he shall be recognized by all Police officers of the sub-division as the senior Police officer and shall have the power to decide the method and degree of force to be used.
  3. All attempts to disperse a crowd by warnings, exhortation, etc. shall be made before it is declared an unlawful assembly and, as such, ordered to disperse. Once an order to disperse has been defied, or when the attitude of a crowd is obviously defiant, force shall be used without hesitation. The degree of force used shall be the minimum which the responsible officer, with the exercise of due care and attention, decides to be necessary for the effective dispersal of the crowd and the making of such arrests as may be desired. The degree and duration of the use of force shall be limited as much as possible, and the least deadly weapon which the circumstances permit shall be used.
  4. The effectiveness of force depends mainly upon the determination with which it is applied, its direction against the most defiant section of the crowd to be dispersed and its absolute control. Failure to act on this principle results inevitably in more force being applied and more dangerous weapons being used than would otherwise have been necessary. It is not possible to lay down any more-definite rule as to when different methods of different weapons shall be used. The officer responsible is required to decide this in each case on consideration of the strength and attitude of the crowd to be dispersed, and the strength of the force available for its dispersal.
  5. When the responsible Police officer, whether acting under the orders of a Magistrate or independently, considers that the use of firearms is necessary, he shall, unless circumstances make such action impossible, warn the crowd that if they do not immediately disperse, fire with live ammunition will be opened upon them. If the District Magistrate or, in a Sub-division, the sub-division officer is present, his orders shall invariably be obtained immediately the necessity of opening fire becomes imminent. If the senior Police officer present is of non-gazetted rank, he shall at such stage obtain the orders of the senior Magistrate present (other than an honorary Magistrate).
  6. In order that the decision to open fire may be promptly acted upon without loss of control or confusion, the responsible Police officer shall, as soon as it appears likely that the use of firearms will be necessary, tell off a detachment of armed Police to be held in readiness. When fire is to be opened, the responsible Police officer shall decide the minimum volume necessary to be effective in the circumstances and shall give precise orders accordingly, as to the particular men or files who are to fire and the number of rounds to be fired; and whether volleys or independent aimed shots are to be fired, and shall ensure that his orders are not exceeded and that no firing contrary to or without orders takes place. Whatever volume of fire is ordered, it shall be applied with the maximum of effect; the aim shall be kept low and directed at the most threatening parts of the crowd; in no circumstances shall firing over the heads of or at the fringes of the crowd be allowed. Since buckshot is not an effective charge at any range at which it is safe to use it. Government has directed that the use of buckshot ammunition against crowd should be prohibited.
  7. When no Magistrate is present, the Police officer in command, as is contemplated in the Criminal Procedure Code, shall be responsible for the opening of fire, invariably, whether the order to use firearms has been given by a Magistrate, or by a Police officer, the order to cease-fire shall be given as soon as the unlawful assembly shows a disposition to retire or disperse.
  8. While the disposition of the Police must be left to the Police officer in command, every precaution should be taken that a force armed with firearms is not brought so close to a dangerous crowd, as to risk its either being overwhelmed by numbers or being forced to inflict heavy casualties. If the use of firearms cannot be avoided, firing should be carried out from a distance sufficient to obviate the risk of the force being rushed and to enable strict fire-control to be maintained.
  9. On occasions when firearms have been used against unlawful assemblies, it should be the duty of the Magistrate, if one is present, to make adequate arrangements for the care of the wounded persons and for their removal to hospital and also for the disposal of the dead if any. He should also, then and there, draw up a full report in consultation with the senior Police officer present, stating all the circumstances and nothing the number of rounds of ammunition issued and expended. If no Magistrate is present, this report shall be prepared by the senior Police officer who shall also take all possible action with regard to wounded and dead.

The United Nations Human Rights Commission has identified Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. It states that the government and law enforcement should develop a range of non-lethal weapons and ammunition that should be carefully evaluated in order to minimise the risk of endangering involved persons. It states that if law enforcement is going to use force, it shall as far as possible apply non-violent means before resorting to using force and firearms. In addition, it affirms that “whenever lawful use of force and firearms is unavoidable, law enforcement officials shall exercise restraint in such use and act in proportion to the seriousness of the offence and legitimate objective to be achieved.”


There is no specific legislation that regulates the quantum of force to be applied at the time of protests and agitation. The legality of the force used depends on the facts and circumstances of each case. Therefore, there is a need to draft appropriate legislation so as to govern the action of police and the use of force by them at the time of protests.

[1] 1971 AIR 2486

[2] 2018 CriLJ 2247

[3] Police Commissioner & Ors. vs Yash Pal Sharma, Delhi High Court, 2008 (155) DLT 209

[4] Karam Singh vs Hardayal Singh And Ors, P&H High Court, 1979 CriLJ 1211

[5] https://www.orfonline.org/research/dealing-with-violent-civil-protests-in-india/#_ednref23

[6] Managing Peaceful Mass Agitation by Police, Rohit Choudhary, IPS

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