Author: Harshit Sharma
Student of Amity Law School, Amity University Madhya Pradesh
Just 10 days after the first anniversary of Pulwama Attack, the motherland of India again witnessed a series of horrific violent actions in the heart of Delhi, now not by any stranger or outbound person, but by the people of India themselves.
In various areas of North East Delhi, specifically including those of Seelampur, Jafrabad, Maujpur, Babarpur, Chand Bagh etc. have reported violent actions and upsurge of riot and head-on clash firstly outbroke on 24th February 2020 between Anti-CAA Protestors and Pro-CAA Protestors which is still going on and has vigorously accounted for 35 deaths, 200+ injured persons, wherein till date 18 F.I.R.’s have been registered with 106 persons being arrested.
In the light of the same, it is worthy to highlight and critically analyse the Riot Law in India and even having such extreme legislation how such situation could have arrived, which can turn so violent, thrashing all thresholds of peace and harmony and thus creating a turmoil of law and order situation in the Capital of India.
MEANING AND DEFINITION OF RIOTING
The importance to again go back to the laws of rioting is the persistent carriage of irresponsible character and lack of riot control technique and great upsurge of violence thereby on account of Delhi Police has forced us to retrace the riot laws, their applicability and efficiency of the same.
Rioting as defined by Merriam Webster as “a violent public disorder specifically: a tumultuous disturbance of the public peace by three or more persons assembled together and acting with a common intent; public violence, tumult, or disorder.”[i]
Black’s Law Dictionary defines Rioting as, “A disturbance of the peace by several persons, assembled and acting with a common intent in executing a lawful or unlawful enterprise in a violent and turbulent manner.”[ii]
The report of Bureau of Police Research and Development (BPRD) has categorically stated that “riot is based on "the use of force or violence by anyone, or more than one member, of" an assembly of protesters distinguishing it from non-aggressive crowd. According to section 146 IPC, it is force or violence that turns an unlawful assembly into a riot. The degree of force or violence is not important.”[iii]
ACTS AND PROVISIONS REGARDING RIOT CONTROL IN INDIA
Police in India have been entrusted with wide powers under various laws and in line of the same, the Police Act of 1861 empowers the Police vide its section 23, which reads as follows:
"It shall be the duty of every police officer to prevent the commission of offences and public nuisances; and to apprehend all persons whom he is legally authorised to apprehend and for whose apprehension sufficient grounds exist."[iv]
Clarifying on the point of how much force is to be used, the BPRD has provided three-pointers to hold on the force, which states,
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 the objective is gained.[v]
The offences which the rioting actions attract under the Indian Penal Code 1860 have been incorporated in VIII which specifically relates to Offences against the Public Tranquillity and the same are hereby reproduced,[vi]
1. Section 141 Unlawful assembly.
2. Section 142. Being member of unlawful assembly
3. Section 143. Punishment
4. Section 144. Joining unlawful assembly armed with deadly weapon.
5. Section 145. Joining or continuing in unlawful assembly, knowing it has been commanded to disperse.
6. Section 146 Rioting.
7. Section 147 Punishment for rioting
8. Section 148 Rioting, armed with deadly weapon.
9. Section 149 Every member of unlawful assembly guilty of offence committed in prosecution of common object
10. Section 150. Hiring, or conniving at hiring, of persons to join unlawful assembly.
11. Section 151. Knowingly joining or continuing in assembly of five or more persons after it has been commanded to disperse.
12. Section 152. Assaulting or obstructing public servant when suppressing riot, etc.
13. Section 153. Wantonly giving provocation with intent to cause riot-if rioting be committed-if not committed.
14. 153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.
15. 153B. Imputations, assertions prejudicial to national-integration.
16. Section 154. Owner or occupier of land on which an unlawful assembly is held.
17. Section 155 Liability of person for whose benefit riot is committed.
18. Section 156. Liability of agent of owner or occupier for whose benefit riot is committed.
19. Section 157. Harbouring persons hired for an unlawful assembly.
20. Section 158 Being hired to take part in an unlawful assembly or riot
21. Section 159 Affray.
22. Section 160. Punishment for committing affray.
The offence of Rioting also attracts the provisions of the Code of Criminal Procedure 1973 which are,
1. Section 149: Police to prevent cognizable offences.
2. Section 150: Information of design to commit cognizable offences.
3. Section 151: Arrest to prevent the commission of cognizable offences.
But it of prime significance to note that CrPC is generally engrossed with the Preventive Measures to control offences and when these preventive measures are not applied efficaciously, then this situation of rioting and communal violence be traced, similar to those of recent Delhi Riot.
Furthermore, the Indian Parliament in the year of 2005 have debated on a Bill for bringing specific legislation to control and curb the offence of Rioting and Communal Violence with the Short title as “Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005” whose preamble or long title categorically cites the object and purpose of the Act as follows,
“A Bill to empower the State Governments and the Central Government to take measures to provide for the prevention and control of communal violence which threatens the secular fabric, unity, integrity and internal security of the Nation and rehabilitation of victims of such violence and for matters connected therewith or incidental thereto.”[vii]
Thus, if this Bill came into existence then the provisions of this Bill shall also apply for the actions of Rioting in India.
LANDMARK JUDGMENTS ON RIOTS
The Supreme Court of India has recently directed the Gujarat Government to pay compensation of ? 50 lakhs[viii] to one of the victims of Gujarat Riots, Bilkis Bano, which has surely opined and evolved a new jurisprudence in the Rioting Law. A similar view was taken by the Delhi High Court in the 1984 Anti-Sikh Riots in addition to conviction and procuring sentence to 80 rioters of the incident.[ix]
The following are the landmark cases in respect of rioting:
The case of Bhanwarlal And Ors. vs State of Rajasthan (1993), the Supreme Court has categorically observed that “Where a number of people have been jointly tried, the court should consider the evidence against each of the accused separately and give definite findings against the presence of each.”
Moreover, in the case of Garib Singh and others vs State of Punjab (1973), the Court held that “In case of rioting, where a number of men are accused, the magistrate should deal with the case of each of the accused separately or discuss the evidence against of each of the accused, especially when the evidence against each of the accused is by no means equally strong.”
The word ‘Violence’ in this context is not restricted to force used against persons only but it extends also in force used against inanimate objects. Thus, if an unlawful assembly came together to pull down a house or a shop or destroying any other property, it would be enough to show that violence was used.
The Supreme Court laid down the following principle in the case State of Uttar Pradesh vs Dan Singh (1997) “In case of rioting, where there are a large number of assailants as well as witnesses, it is but natural that the testimony of the witnesses may not be identical. What has to be seen is whether the basic features of the occurrence have been similarly viewed or described by the witnesses in a manner which tallies with the outcome of the riot.”
The Supreme Court gave a similar view that “in such matters, it is usual to adopt the test that the conviction could be sustained if it is supported by two, three or more witnesses who give a consistent account of the incident” as was held in the case of Krishnegowda vs State of Karnataka (2000).
The Supreme Court, in the case Amzad Ali and others vs State of Assam (2003) explained that the common object could have developed eo instanti after the assembly gathered and before the commission of the crime.
In Ramjanam Pandey vs State of Bihar (1993), the Supreme Court stated: “it is well settled that common object has to be inferred from various factors like the weapons with which the members were armed, their movements, the acts of violence committed by them and from the results thereof”.
The principle of Section-149 has been explained by the Supreme Court in the case Lalji and Others v/s State of Uttar Pradesh (1989) “Section 149 creates a specific and distinct offence. Once the Court holds that certain accused person formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, every person who at the time of committing of the offence was a member of the same unlawful assembly is to be held. After such a finding, it would not be open to the Court to see as to actually did the offensive act or require the prosecution to prove who which of the members did which of the offensive acts. The prosecution will have no obligation to prove it.”
If several persons assault the victim, it is not necessary that the death of the victim must be attributed to a particular injury of a particular accused. The death could be a cumulative effect of the injuries sustained by the deceased victim resulting in his death. (Nand Kishore Prasad v. State of Bihar (2000))
It is also well settled that if the death had been caused in the prosecution of the common object, it will not be necessary to record a definite or specific finding as to which particular accused out of the members of the assembly caused the fatal injury. (Munivel v. State of Tamil Nadu (2006).
As in the case Kashthurirangam In re (1970), it was held “Active participation in actual violence is not necessary. Some may encourage by words, others by signs and others again may actually cause hurt and yet all would be equally guilty of rioting”
The Supreme court in Mannam Venkatadari and Others v/s State of Andhra Pradesh (1971) observed that while an overt act and active participation may indicate the common intention of the persons perpetrating the crime, a mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149.
Definite roles need not be ascribed to accused persons. Likewise, in Gangadhar Behera & Others v/s State of Orissa (2002) it has been stated that “Even if no overt act is imputed to a particular person when the charge is under Section 149, the presence of the accused as part of an unlawful assembly is sufficient for conviction.”[x]
FUNDAMENTAL AND HUMAN RIGHTS VS RIOT LAWS
The constitution is the Supreme Law of the Land and anything engrossed in it cannot be transgressed nor violated at any cost and one such important portion of it is that of FUNDAMENTAL RIGHTS (Part III).
Article 19 of the Indian Constitution unequivocally provides certain Freedoms which also includes Right to Freedom to Form Association and peacefully Protest, which is reproduced below,
“19. (1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;……..”[xi]
whereas it also comes with a rider which is penned from Article 19(2) to Article 19(6) of the Indian Constitution, which states that if any freedom is used in such a manner which is not acceptable then REASONABLE RESTRICTIONS be imposed on such freedom so as to curtail such unacceptable actions.
The Rioting Laws are the offspring of these REASONABLE RESTRICTIONS on the Fundamental Rights and specifically
“Article 19(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 4 [the sovereignty and integrity of India or] public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
Article 19(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 4 [the sovereignty and integrity of India or] public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.”
In the words of Hon’ble Supreme Court of India,
Like many clashes between the fundamental rights granted in 1950 by the Constitution and the earlier colonial apparatus, the latter has won out in the courts in case of the right to assembly. In 1970, for example, the Supreme Court in Madhu Limaye v. Sub Divisional Magistrate held that Section 144 was constitutional, reiterating its earlier judgment in 1961.
Moreover, to quote in the Madhu Limaye case, the Supreme Court held that the law was only to be used only if “the emergency must be sudden and the consequences sufficiently grave” and the ban on assembly is “able to prevent some harmful occurrences”. In the 2012 Ramlila Maidan case, the court held that the “perception of threat to public peace and tranquillity should be real” for Section 144 to be used. The trigger cannot be “imaginary or a mere likely possibility”.[xii]
Thus, there is no conflict between Rioting Laws and Fundamental Rights. It can be clearly understood that where one seizes, the other comes into operation and effect.
To conclude, the author would like to state that rioting is the situation which arose in society because of clear negligence and catering of irresponsible character on the part of Police Administration and Executive organ of the Government. It can be undoubtedly stated that we have proper laws and designed framework to cope with such situations at its inception, but the non-implementation, carelessness and sometimes collusion between top officials and influencing persons to result in the making of certain situations and circumstances which makes these activities and actions favourable to take place and happen.
Thus, a proper check on the executive branch and independent nature of Courts of Law is required to restore the peace pact in the Delhi, after prolonged protest over CAA, NRC and NPR, which should be controlled ad curbed at earliest (violent protest and riots), otherwise, this riot may turn into a revolt and may also go up to a level which can harm our beautiful country.
[i] Merriam Webster, Riot, MERRIAM WEBSTER (Feb. 27, 2020, 07:41 PM), https://www.merriam-webster.com/dictionary/riot.
[ii] The Free Dictionary, Riot, THE FREE DICTIONARY (Feb. 27, 2020, 07:54 PM), https://www.thefreedictionary.com/riot#:~:text=A%20quarrel%2C%20fight%2C%20or%20disturbance,Informal%3A%20fracas..
[iii] Prabhash Dutta, Violent protests over Citizenship Act: How Indian police control riots?, INDIA TODAY (Feb. 27, 2020, 07:52 PM), https://www.indiatoday.in/news-analysis/story/violent-protests-over-citizenship-act-how-indian-police-control-riots-1629350-2019-12-18#:~:text=Crowd%20control%20or%20police%20action,of%201861%2C%20the%20BPRD%20says.&text=This%20law%20empowers%20police%20to,much%20force%20should%20be%20used..
[v] Prabhash Dutta, supra iii.
[vi] Law Teacher, The Communal Violence, THE LAW TEACHER (Feb. 27, 2020, 08:21 PM), https://www.lawteacher.net/free-law-essays/common-law/the-communal-violence.php.
[vii] Kriti M. Shah, Dealing with violent civil protests in India, OBSERVER RESEARCH FOUNDATION (Feb. 27, 2020, 08:38 PM), https://www.orfonline.org/research/dealing-with-violent-civil-protests-in-india/.
[viii] Anupama Katakam, Supreme Court relief for Gujarat riots victim Bilkis Bano, FRONTLINE (Feb. 27, 2020, 09:10 PM), https://frontline.thehindu.com/dispatches/article27014150.ece.
[ix] Sanjeev Sirohi, 1984 Anti Sikh Riots Delhi High Court upholds Conviction and Punishment, LEGAL SERVICES INDIA (Feb. 27, 2020, 09:13 PM), http://www.legalservicesindia.com/law/article/1117/5/1984-Anti-Sikh-Riots-Delhi-High-Court-Upholds-Conviction-And-Punishment.
[x] Partha Pati et al, How to prosecute (and defend) a riot under Indian Law, LEGALLY INDIA (Feb. 27, 2020, 09:21 PM), https://www.legallyindia.com/the-bench-and-the-bar/how-to-prosecute-and-defend-a-riot-under-indian-law-20140612-4790.
[xi] Team LTJ, Right to Peaceful Assembly, LAW TIMES JOURNAL (Feb. 27, 2020, 09:50 PM), http://lawtimesjournal.in/right-peaceful-assembly/#:~:text=Article%2019%20(1)(b,and%20to%20take%20out%20processions.&text=1)%20The%20assembly%20must%20be%20peaceful%20and%20harmonious%3B&text=3)%20Reasonable%20restrictions%20can%20be,clause%203%20of%20article%2019.
[xii] Shoaib Danyal, As UP charges peaceful protestors with rioting, has state abandoned fundamental right to assembly?, SCROLL.IN (Feb. 27, 2020, 10:00 PM), https://scroll.in/article/950676/as-up-charges-peaceful-protestors-with-rioting-has-state-abandoned-fundamental-right-to-assembly.
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