ANITA THAKUR & ORS. Vs GOVT.OF J & K & ORS.
Bench: A.K. SIKRI,R.K. AGRAWAL
Case number: Writ Petition (crl.) 118 of 2007
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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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