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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 118 OF 2007

ANITA THAKUR & ORS. .....APPELLANT(S)

VERSUS

GOVT. OF J & K & ORS. .....RESPONDENT(S)

J U D G M E N T

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

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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

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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

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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 them,

including  arrears,  if  any,  no  positive  action  was  taken  by  the

respondents.   This  forced  the  petitioners  to  submit  a

memorandum to the Deputy Commissioner, Reasi stating that if

the  order  was  not  implemented  within  15  days,  the  migrants

would resort to their protest march to Delhi and would meet the

Prime Minister of India for implementation of this order.  This was

followed by another representation dated 23.07.2007 to the Chief

Minister, Jammu & Kashmir wherein they threatened that on the

Government failure to implement the order, the migrants would

go on strike.   

As  nothing  happened,  on  31.07.2007,  the  Talwara  migrants

started their peaceful protest march from Talwara towards Jammu

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to head to Delhi.  According to the petitioners, the migrants were

stopped about 6 kms. short of Katra town, at Ghar Baba Jitto,

after  they had covered about 20 kms towards Jammu.  Police

kept them in siege for 5 days.  The protest marchers who were

about 2000 in number including old persons, women and children

were not allowed to proceed and were made to sit at that place till

07.08.2007,  the  fateful  day.   On  07.08.2007,  following  events

occurred:

(i) At about 1 pm on this day, the three petitioners (all members of

the Jammu & Kashmir National Panthers Party) arrived at Katra,

to speak with the concerned authorities regarding the plight of the

migrants.

(ii) The petitioners conducted a one hour long discussion with the

Dy. Commissioner, Reasi, the Tehsildar, Reasi, Superintendent of

Police,  Reasi  and  the  SHO,  Katra  regarding  the  migrants'

peaceful march.

(iii) The migrants resumed their peaceful march, and the petitioners

joined the march to ensure that there was no undue harassment

by the Police.

(iv) At about 2 pm, 500 armed policemen, blocked the bridge that the

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migrants were about to cross and began attacking the marchers

with Lathis and teargas shells.

(v) Petitioner No. 2 attempted to approach the Police which included

respondent Nos. 6 to 9 to stop the attack, and was taken into

custody after being brutally assaulted and having his leg broken.

He stayed in Police custody without medical aid till 9 pm when he

was taken first to Katra Government Hospital and then shifted to

Government Medical Hosptial,  Jammu at 11.30 pm.  Petitioner

No. 1 then attempted to approach the Police to secure medical

aid for the injured migrants.  As soon as she entered the Police

control  zone,  she  was  violently  attacked  by  several  police

women, dragged on the ground for a long distance and put into a

Police jeep.  Petitioner No. 1 was beaten inside the jeep and also

at the Police Station.  Petitioner No. 3 was also arrested for trying

to cover the incident.   

4. Petitioner No. 1 was admitted to the Government Medical College

Hospital, Jammu on 08.08.2007.  Copies of medical reports of

petitioner  No.  1  have  been  filed  by  the  petitioners.   The  Bar

Association of Jammu & Kashmir also started protest against the

aforesaid criminal assault on petitioner No. 2 by abstaining from

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Courts on 09.08.2007.  Petitioner Nos. 2 and 3 were released on

interim bail on 10.08.2007 by the Judicial Magistrate, First Class,

Katra  pursuant  to  the  directions  of  the  High  Court  and  were

thereafter granted regular bail on 14.08.2007.

5. The  petitioners  filed  contempt  petition  No.  155/2007  alleging

violation of  this Court's order dated 13.07.2006 wherein notice

was  issued  by  this  Court  on  20.08.2007.   Thereafter,  present

petition was filed with the prayers as aforesaid, in which show

cause notice was issued on 01.10.2007.   

6. The respondents have appeared and denied the version of the

petitioners.  The official version which has surfaced on record in

the form of response to the various averments made in the writ

petition is  that  about  500 migrants on 01.08.2007 blocked the

Reasi-Pouni  road  near  Baradari  bringing  the  entire  traffic  on

stand still.  Dharna continued the entire day and night and the

unruly crowd damaged a police vehicle.  Leaders of the Panther's

party  in  discussions  with  the  administration  agreed  to  lift  the

Dharna.  However, they back tracked and the dharna continued.

On  02.08.2007,  protestors  started  marching  towards  Katra.

Administration  at  Sula  Park  requested  them  to  go  back.   All

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offers of relief were turned down.  On 03.08.2007, High Officials

of the State reached Serwad and persuaded the crowd to adopt a

realistic and pragmatic approach.  Suggestions of providing ration

and cash relief for three months at par with border migrants were

given.  Migrants initially agreed to it and it was decided to gather

at Aghar Jitto temple where the ration shall be distributed on the

same day.  However, the migrants  later  refused the offer  and

demanded  cash  relief  at  par  with  Kashmiri  migrants.   High

Officials  camped at  Serwad on 03/04.08.2007 to persuade the

migrants.  On 05/06.08.2007, negotiations continued.  Directions

were given to provide facilities of water, medicine, food along with

milk packets for infants.  Some of the demonstrators accepted

the relief of the Government.  However, insofar as petitioners are

concerned,  instead of  amicably sorting out  the issue,  raised a

new demand for  providing arrears  for  last  40 months.   Police

authorities  informed  the  migrants  that  the  competent  authority

shall be informed and that they should return peacefully and not

march ahead to disturb the on going Amarnath and Vishnu Devi

Yatris.  The agitated protestors, however, took strategic positions

alongside  the  road  and  started  pelting  stones  on  the  police

personnels who were trying to initiate dialogues.  Few of them

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even used  their  Lathis  which  they  were  carrying.   The  crowd

marched  towards  Balni  Bridge  where  the  police  contingent

reorganized.  However, the demonstrators had turned violent and

wanted to proceed to Katra.  Keeping in view the security and in

face of no other option, police resorted to mild Lathi charge to

control the mob.  The injured migrants and the policemen were

taken to PHC-Katra.  17 Policemen along with Mr. Ashok Sharma

(respondent No. 6) got severely injured and were rushed to the

hospital  as  well.   Executive  Magistrate  Tehsildar,  Reasi  after

taking stock of the situation and attack on the police authorities

by  the  mob  and  the  resulted  injuries  on  police  officers  and

civilians ordered SP Katra for Lathi charge and use of tear smoke

to disperse the unruly mob.  In the melee some persons from the

mob including Mr. Jhalmeria got injured.  Respondent No. 6 was

injured by the mob and was taken to the hospital.  Respondent

No. 7 was manhandled by petitioner No.1 who tore and threw

away his ranks from his uniform.   

7. It  becomes  clear  from  the  above  that  both  the  parties  are

accusing  each  other.   At  the  time  of  hearing,  counsel  for  the

parties  stuck  to  their  respective  stands.   In  support  of  their

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versions,  even the CDs containing Video of  the incident  have

been filed by both the parties.  We have seen the CD's filed by

both the parties.  However, on going through the CD submitted by

the  respondent  State,  it  becomes  clear  that  the  agitated

protestors were the persons who were instrumental in triggering

the  incident  inasmuch  as  it  is  they  who  took  the  first  step  in

disturbing the peace.   It  is  these agitators who started pelting

stones  on  the  police  personnel  and  even  used  lathis  while

attacking  the  police  officials.   No  doubt,  these  demonstrators

wanted to go ahead with their march and they were restrained by

the police from doing so.  At the same time, this step taken by the

police was at  the instance of  higher authorities and they were

given orders that these demonstrators be not allowed to proceed

with their march.   

8. We can appreciate that holding peaceful demonstration in order

to air their grievances and to see that their voice is heard in the

relevant quarters is the right of the people.  Such a right can be

traced  to  the  fundamental  freedom  that  is  guaranteed  under

Articles 19(1)(a), 19(1)(b) and 19(1)(c) of the Constitution.  Article

19(1)(a) confers freedom of speech to the citizens of this country

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and, thus, this provision ensures that the petitioners could raise

slogan,  albeit  in  a peaceful  and orderly  manner, without  using

offensive language.  Article 19(1)(b) confers the right to assemble

and, thus, guarantees that all citizens have the right to assemble

peacefully and without arms.  Right to move freely given under

Article 19(1)(d), again, ensures that the petitioners could take out

peaceful march.  The 'right to assemble' is beautifully captured in

an  eloquent  statement  that  “an  unarmed,  peaceful  protest

procession in the land of 'salt satyagraha',  fast-unto-death and

'do or die' is no jural anathema”.  It hardly needs elaboration that

a distinguishing feature of any democracy is the space offered for

legitimate dissent.  One cherished and valuable aspect of political

life  in  India  is  a  tradition to express grievances through direct

action  or  peaceful  protest.   Organised,  non-violent  protest

marches were a key weapon in the struggle for independence,

and  the  right  to  peaceful  protest  is  now  recognised  as  a

fundamental right in the Constitution.

9. Notwithstanding above,  it  is  also to be borne in  mind that  the

aforesaid  rights  are  subject  to  reasonable  restrictions  in  the

interest of the sovereignty and integrity of India, as well as public

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order.  It  is for this reason, the State authorities many a times

designate  particular  areas and routes,  dedicating them for  the

purpose of holding public meetings.   

10. On the other hand, there is always a possibility that a public rally

may  become  unruly,  which  can  mean  damage  to  life  and

property.  This is  when a public assembly becomes  'unlawful',

which is defined in Section 141 of the Indian Penal Code (IPC).

Under  these  circumstances,  the  district  administration  and  the

police are permitted to disperse the crowd to prevent injuries or

damage.  This may entail  the use of force in a controlled and

specified manner.  We also have Section 268 of the IPC which

defines  'public  nuisance'  as  any  act  'which  must  necessarily

cause injury, obstruction, danger or annoyance to persons who

may have occasion to use any public right'.  Further, Section 143

of the Cr.P.C. empowers an Executive Magistrate to prohibit the

repetition  or  continuation of  public  nuisances and Section 144

Cr.P.C.  permits  the  issuance  of  directions  to  members  of  the

public to abstain from a certain act or to take certain order with

respect  to  certain  property  in  his  possession  or  under  his

management, if such Magistrate considers that such direction is

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likely to 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 tranquility, or a riot,

or  an affray.  These legal  provisions provided a wide array of

powers to the police, including the right to use reasonable force

to disperse any unlawful assembly and maintain public order.

11. Thus,  while  on  the  one  hand,  citizens  are  guaranteed

fundamental right of speech, right to assemble for the purpose of

carrying  peaceful  protest  processions  and  right  of  free

movement,  on the other hand, reasonable restrictions on such

right can be put by law.  Provisions of IPC and Cr.P.C., discussed

above, are in the form of statutory provisions giving powers to the

State to ensure that such public assemblies, protests, dharnas or

marches are peaceful and they do not become 'unlawful'.  At the

same  time,  while  exercising  such  powers,  the  authorities  are

supposed to act within the limits of law and cannot indulge into

excesses.   How legal  powers  should  be  used  to  disperse  an

unruly crowd has been succinctly put by the Punjab and Haryana

High Court in Karam Singh v. Hardayal Singh1 wherein the High

1

1979 Crl.L.J. 1211

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Court  held  that  three  prerequisites  must  be  satisfied  before  a

Magistrate can order use of force to disperse a crowd:   

First, 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.   

Second, an Executive Magistrate should order the assembly

to disperse.   

Third, in spite of such orders, the people do not move away.

12. Before adverting to  the issue at  hand,  we would  like  to  make

some  general  remarks  about  the  manner  in  which  these

demonstrations are taking shape.  Recent happenings show an

unfortunate trend where such demonstrations and protests are on

increase.  There are all  kinds of protests: on social issues, on

political issues and on demands of various sections of the society

of  varied  kinds.   It  is  also  becoming  a  common  ground  that

religious, ethnic, regional language, caste and class divisions are

frequently  exploited  to  foment  violence  whenever  mass

demonstrations or dharnas etc take place.  It is unfortunate that

more  often  than  not,  such  protestors  take  to  hooliganism,

vandalism  and  even  destroy  public  /  private  property.  In  the

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process, when police tries to control, the protestors/mob violently

target  policemen  as  well.    Unruly  groups  and  violent

demonstrations are so common that people have become to see

them as an appendage of Indian democracy.  All these situations

frequently result in police using force.  This in turn exacerbates

public anger against the police.  In Kashmir itself there have been

numerous  instances  where  separatist  groups  have  provoked

violence. In this scenario, task of  the police and law enforcing

agencies becomes more difficult and delicate.  In curbing such

violence  or  dispersing  unlawful  assemblies,  police  has  to

accomplish  its  task  with  utmost  care,  deftness  and  precision.

Thus, on the one hand, law and order needs to be restored and

at the same time, it is also to be ensured that unnecessary force

or  the  force  beyond  what  is  absolutely  essential  is  not  used.

Policemen are required to undergo special training to deal with

these situations.  Many times the 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.

There are various documents in the form of police manual and

even  international  covenants  proscribing  use  of  unnecessary

force  and  mandating  that  force  should  only be used when it is

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absolutely necessary2.   Even when used,  it  should  be minimum

and proportional to the situation and its use to be discontinued as

soon as the danger to life and property subsidised.

13. In those cases where assembly is peaceful, use of police force is

2 These documents, inter alia, are: (a)  Model Rules on the Use of Force by the Police against unlawful Crowds (Adopted by the Inspectors  

General of Police Conference, 1964).  (b) Police Manuals:  For instance, the Kerala Police Manual, 1970 lays down a step-by-step procedure to  

deal with unlawful assemblies:  The police must invariably secure the presence of a magistrate where it anticipates a breach of peace  The decision to use force and the type of force to be used is to be taken by the magistrate  Once the order for the use of force is given by the magistrate, the extent of force to be used will be

determined by the senior-most police officer  The extent of force used must be subject to the principle of minimum use of force  Use of force should be progressive – i.e firearms must be used as a last resort if tear smoke and lathi

charge fail to disperse the crowd  Common tearsmoke which causes no bodily injury and allows recovery of affected persons should be

used  When the crowd is large and the use of tearsmoke is likely to serve no useful purpose, the police may

resort to lathi charge  Lathi charge can only begin if the crowd refuses to disperse after suitable warning  Clear warning of the intention to carry out a lathi charge should be given through a bugle or whistle call

in a language understood by the crowd. If available, a riot flag must be raised. If the police officer in-charge  is  satisfied it  is  not  practical  to  give  a warning,  s/he  may order  a  lathi  charge  without warning.  

 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

 The lathi blows must not cease until the crowd is completely dispersed  If the crowd fails to disperse through the lathi charge, the magistrate or the competent officer8 may

order firing  The fullest warning in a clear and distinct manner must be given to the crowd to inform them that the

firing will be effective  If after the warning, the crowd refuses to disperse the order to fire may be given  The police are not on any account allowed to fire except on a command given by their officer  A warning shot in the air or firing over the heads of the crowd is not permitted  An  armed  force  should  maintain  a  safe  distance  from  a  dangerous  crowd  to  prevent  being

overwhelmed, or increasing the chances of inflicting heavy casualties  Aim should be kept low and directed at the most threatening part of the crowd  Firing should cease the moment the crowd show signs of dispersing  All help should be rendered to convey the wounded to the hospital  Police  officers  must  not  leave  the  scene  of  disturbance  before  satisfying  themselves  beyond

reasonable doubt about the restoration of tranquility  An accurate diary of all  incidents,  orders and action along with the time of occurrence should be

maintained by the police. This will include an individual report by all officers involved in the firing.  The number of  fired cartridges and the balance of unfired cartridges should be verified to ensure

ammunition is accounted for (c) The  Commonwealth  Human  Rights  Initiative  (CHRI)  is  an  independent,  non-partisan

international non-governmental organisation, mandated to ensure the practical realisation of human rights in Commonwealth countries.  CHRI is headquartered in New Delhi and has offices in London and Accra (Ghana).

(d) Various orders passed by the National Human Rights Commission.

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not warranted at all.  However, in those situations where crowd or

assembly becomes violent  it  may necessitate and justify using

reasonable police force.  However, it  becomes a more serious

problem when taking recourse to such an action, police indulges

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 abuses its power to use

force and that becomes a serious threat to the rule of law.

14. 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

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concerned,  such  a  situation  could  clearly  be  avoided.   It  is

apparent that to that extent, 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,  A

Women's Resources Center, Through Ms.  Nalini  Bhanot &

Ors. v. Commissioner of Police, Delhi Police Headquarters &

Ors.3; Joginder Kaur v. The Punjab State & Ors.4; The State of

Rajasthan v. Mst. Vidhywati & Anr.5; and Smt. Nilabati Behera

@  Lalita  Behera  (through  the  Supreme  Court  Legal  Aid

Committee)  v.  State  of  Orissa  & Ors.6}.   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

3 (1990) 1 SCC 422 4 (1969) ACJ 28 5 (1962) Supp 2 SCR 989 6 (1993) 2 SCC 746

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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.

15. Keeping in view the totality of the circumstances of the present

case and finding that even the petitioners are to be blamed to

some extent, as pointed out above, the only relief we grant is to

award  compensation  of  ₹2,00,000  (rupees  two  lakhs  only)  to

petitioner  No.1 and  ₹1,00,000 (rupees one lakh only)  each to

petitioner Nos. 2 and 3, which shall be paid to these petitioners

within a period of two months.

16. The writ petition stands disposed of in the aforesaid terms.

.............................................J. (A.K. SIKRI)

.............................................J. (R.K. AGRAWAL)

NEW DELHI; AUGUST 12, 2016. Writ Petition (Crl.) No. 118 of 2007

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