Athungo Shitri
Lingrijan Colony, Dimapur
The Police indeed have a daunting task of enforcing the lockdown measures pursuant to the COVID-19 pandemic. Still, the use of force, particularly in Nagaland, is unwarranted and calls for strong condemnation.
Vide order dated 24.03.2020, the Ministry of Home Affairs invoked the provisions of The Disaster Management Act,2005, and issued guidelines to prevent the spread of the pandemic. The said guidelines exempted the hospitals, doctors, and other health care workers from the lockdown measures. Furthermore, to ensure the strict compliance of the guidelines and prevent possible misuse the Ministry also directed that any person violating the containment measures would be liable to be proceeded against as per provisions of section 51 to 60 of The Disaster Management, Act 2005 besides being punishable under section 188 of the Indian Penal Code,1860. The Act provides that a person violating the orders of the authorities would be liable to imprisonment for up to two years. This could be coupled with a fine.
The guidelines are self-sufficient and provide for adequate measures for compliance and, in no manner, justify police excesses. High handedness of police high handedness is not new to this country. The most recent being the 2019 Jamia Milia Islamia Attack.
State in a given scenario can use reasonable force against the violators, but what begs the question is how much force is a reasonable force? What remedy does one have if one is subjected to atrocities committed by the Police?
The Supreme Court in Anita Thakur v. State of J&K, (2016) 15 SCC 525 after relying on a conspectus of precedents has settled the issue and has held as follows:
“18 When we examine the present matter in the aforesaid conspectus, we find that initially, it was the petitioners/protestors who took the law into their hands by turning their peaceful agitation into a violent one and in the process becoming unruly and pelting stones at the Police. On the other hand, 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. They continued to beat up all the three petitioners even after overpowering them. They had virtually apprehended these petitioners making them immobile. However, their attack on these petitioners continued even thereafter when it was not at all needed. As far as injuries suffered by these petitioners are concerned, such a situation could clearly be avoided. It is apparent that to that extent, the respondents misused their power. To that extent, fundamental right of the petitioners, due to police excess, has been violated. In such circumstances, in exercise of its power under Article 32 of the Constitution, this Court can award compensation to the petitioners. (See Saheli v. Commr. of Police [Saheli v. Commr. of Police, (1990) 1 SCC 422 : 1990 SCC (Cri) 145] , Joginder Kaur v. Punjab State [Joginder Kaur v. Punjab State, 1969 ACJ 28 : 1968 SCC On Line P&H 247] , State of Rajasthan v. Vidhyawati [State of Rajasthan v. Vidhyawati, 1962 Supp (2) SCR 989 : AIR 1962 SC 933] and Nilabati Behera v. State of Orissa [Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 : 1993 SCC (Cri) 527] .) The ratio of these precedents can be explained thus: First, it is clear that a violation of fundamental rights due to police misconduct can give rise to a liability under public law, apart from criminal and tort law. Secondly, that pecuniary compensation can be awarded for such a violation of fundamental rights. Thirdly, it is the State that is held liable and, therefore, the compensation is borne by the State and not the individual police officers found guilty of misconduct. Fourthly, this Court has held that the standard of proof required for proving police misconduct such as brutality, torture and custodial violence and for holding the State accountable for the same, is high. It is only for patent and incontrovertible violation of fundamental rights that such remedy can be made available. Fifthly, the doctrine of sovereign immunity does not apply to cases of fundamental rights violation and hence, cannot be used as a defence in public law.”
It is thus clear that the victims who suffer a violation of their human rights on account of police brutality have an adequate remedy in law, and they must avail them to set an example to prevent further misuse.
