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Lathi charge, or use of force by the Police, has no place in the statutory books of India. Nonetheless, this technique is commonly adopted by the Police, be it on the protesting farmers, students across universities or people who were allegedly seen violating lockdown guidelines over the past two years. So, are the Police allowed to lathi charge as part of due process of law?
There are some provisions that allow the Police to use force or lathi charge but that is contingent on certain exceptions. According to section 144 of the CrPC, the police can resort to the use of force only when an unlawful assembly refuses to disperse. Under this provision, the police have the ability to disperse a crowd or a group of 5 or more people when there is a threat of public disorder. But the term ‘lathi or baton charge’ finds no mention in these sections.
Instead, what the section entails is that if the District Magistrate deems it fit, he/she can direct the Police to take such an action against an unlawful assembly if it will “prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, of an affray.”
Section 141 of the IPC defines unlawful assembly as an assembly of five or more persons if the common object of the persons is:
-to overawe by criminal force, or show of criminal force, the Central/State Government or Parliament or the Legislature of any State, or any public servant
-to resist the execution of any law, or of any legal process
-to commit any mischief or criminal trespass,
-by means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property
-to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
But off late, students, lockdown violators and most recently, the farmers who have been brutally lathi charged, have not indulged in any activity that may amount to “criminal force against the government” or “criminal trespass”. According to media reports, students of premium institutes in Delhi were allegedly lathi charged while demonstrating against the Citizenship Amendment Act (CAA) in December 2019. Similarly, there were reports of excessive brute force against lockdown violators, especially migrant workers who were forced to walk back miles during the first lockdown.
Further, as per section 129 of CrPC, an unlawful assembly can be dispersed only on the exclusive orders of an executive magistrate or the officer in charge of a police station (and in his absence, an officer not below the rank of sub-inspector). The prerequisites mentioned in the provision have also been reiterated by the High Courts to permit the Police and the armed forces to use force. In Karam Singh vs Hardayal Singh And Ors. 1979 CriLJ 1211, the Punjab and Haryana High Court had said, “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.”
In Police Commissioner and Ors vs Yash Pal Sharma RFA No. 364 of 2003, the Delhi High Court had observed that the Police had used force and lathi-charged even though the demonstrations were without any arms and was a peaceful march. The Bench had said, “It is lawful for the police to use necessary and reasonable force to disperse an unlawful assembly….The legal position which cannot be disputed is that it is only reasonable force which the police is authorized to use to disperse such unlawful assembly. This proposition flows from the principle that otherwise it is a well-settled law that citizens of this country have fundamental right of speech and expression, as enshrined in Article 19(1)(a) and (b) of the Constitution of India.”
Finally, Justice AK Sikri held that this kind of force used by the police was far from reasonable and he also got into what section 129 envisages. He said, “The object of the provisions of Section 129 of the Code, or for that matter Rule 14.56 of the Punjab Police Rules, is to use the force to quell a disturbance of the peace or disperse an assembly which threatens such disturbance and has either refused to disperse or shows a determination not to disperse. Forgetting this, the act of the police was punitive and repressive.”
Section 130 of the CrPC, on the other hand, warrants the use of armed forces to disperse an assembly, but lays down that only “little force” needs to be used.
Section 130(3) reads, “Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.”
The Karnataka High Court had attempted to explain how much force should be used by the Police or by the District Magistrate but the boundaries still remain vague. In State of Karnataka vs B. Padmanabha Beliya and Others 1991 (2) KarLJ 11, the High Court had held that after the Magistrate has decided on the kind of force to be used, the officer in charge of the police is solely responsible for deciding the exact amount of force to be used, the manner of using it and the settling of the details of the operations connected with the use of the force; the Police Officer should, of course, bear in mind the principle that no more force than is necessary should be used.”
None of the above provisions specify the exact form or extent in which ‘force’ is to be exercised, so lathi charge turns out to be the most common toolkit. The Kerala Police Manual, 1970 lays down step by step rules for lathi charge, which states, “The extent of force used must be subject to the principle of minimum use of force.” Further, the manual also states that Lathi charge can only begin if the crowd refuses to disperse “after suitable warning” and Lathi blows should be aimed at soft portions of the body and contact with the head or collarbone should be avoided as far as practicable. But just days ago, the Sub-District Magistrate Ayush Sinha directed the force to “split open the skulls of any person who tries to cross the border”, during the ongoing farmers’ protests!
In Anita Thakur vs Govt. of J and K and Ors. Writ Petition (Criminal) No. 118 of 2007, the Supreme court had provided compensation to the petitioners who in fact were held to have protested violently and in the process had become unruly and pelted stones at the police. Despite such facts, the court had held that the police had acted excessively because even the police personnel continued the use of force beyond limits after they had controlled the mob. In the process, they continued their lathi charge and the court had remarked that the use of excessive force by the police results in violation of human rights and dignity.
International Law
As per the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba in 1990, in the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, “shall restrict such force to the minimum extent necessary” (section 13).
Section 14 further provides for a possibility of violent unlawful assembly and states, “In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary.”
The manuals, rules, the constitutional courts, provisions-all set out for a minimum use of force by the Police but more often than not, they fail to meet even the preliminary threshold before using force, like an unlawful assembly or giving warnings before use of force. The Police need to act proportionately and not in excess to the threat perceived by them. In the case of Anita Thakur, the court had reiterated the use of “minimum and reasonable force” even against a violent mob and comprehended the alarming situations of police excesses.
It had observed, “it becomes a more serious problem when taking recourse to such an action, police indulge in excesses and crosses the limit by using excessive force thereby becoming barbaric or by not halting even after controlling the situation and continuing its tirade. This results in violation of human rights and human dignity. That is the reason that human rights activists feel that police frequently abuse its power to use force and that it becomes a serious threat to the Rule of law….Policemen are required to undergo special training to deal with these situations. Many times, situations turn ugly or go out of control because of lack of sufficient training to the police personnel to deal with violence and challenges to their authority.”
The use of lathi/baton against citizens by authorities has been a colonial gift. Zealous brutalities like these always tend to send shockwaves across the nations but it doesn’t bring about any change in the way the Police operate, nor is there any accountability. Be it the recent insensitive lathi charge against the farmers in Karnal or the lathi charge on Lala Lajpat Rai during the anti-Simon Commission protests years ago, the aftermath of such assaults has been grave.
Jawaharlal Nehru, in his autobiography Toward Freedom also wrote about the increasing police brutality in the form of lathi charges and raids during the Civil Disobedience movement. The lathi charges were so intense that Bombay, the city that became a hub of protests and ‘hartals’ (strike), saw the coming up of emergency hospitals to treat only the victims of these lathi charges.
As per the National Crime Record Bureau’s (NCRB) Crime in India 2019 report, 105 civilians have been injured due to lathi charge by the Police, the highest being in Meghalaya (65), followed by West Bengal (19). Back in 2016, the NCRB data revealed that there were 185 occasions on which police used lathi charge in Uttar Pradesh, the second highest in the country after Jammu and Kashmir, during which 219 civilians and 11 policemen were injured.
Following the death of farmer Sushil Kajal, who was fatally injured during the brutal lathi charge attack in Karnal, the All-India Farmers Convention concluded with a call for Bharat Bandh on September 25, 2021 to expand and intensify its agitation to every village and corner. Accordingly, leaders appealed to farmers to show up for a massive protest rally at Muzaffarnagar, Uttar Pradesh on September 5. The farmers have been protesting the three farm laws for over a year now.
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