The alleged agreement between CJP and the State has given rise to a new moral and legal problem.
The background of the protests is well known to everyone at this point. However, the latest problem it has created, is pretty novel.
The Problem!
Imagine this. You’re a Police Officer. There is a clear direction – you have to be on field on 20th of July at Delhi. The State has entrusted an official duty onto you. The clear instruction is this – maintain Law and Order, no matter what!
However, circumstances changed for the worse out of nowhere. The protests have turned violent. Suddenly, what was supposed to be a peaceful student-led protest, has turned into an all-out brawl. Your biggest enemy is the fact that you are wearing a symbol of the State – your official uniform! Stones are being thrown at you, and a mob has rushed to lynch you. On that day, you are representing the enemy. You represent the very people who have wronged the young students of this country. Needless to say, the State has committed its fair share of wrongs in this entire situation, and today, you’re directly facing the brunt of it.
The legitimacy of these protests, and the consequent police brutality has been the focal point of much discussion. Some have argued, that the Students should have engaged in the movement while upholding constitutional democracy, and rejecting violence and manipulation. However, the other side has inevitably argued that the degree of aggression meted out against mere Students was unjustified.
However – one fact remains undisputed. There was violence, and consequently, injuries.
Consequences!
Thankfully, by the end of the day, the dust has settled, and the protests are finally under control. However, there are consequences for you. You are left battling with several bodily injuries while you were carrying out your official duties under the instructions of the State.
However, there is another twist in the tale! Despite the fact that you’re the one who was the victim of stone pelting, despite the fact that you’re the one who has gotten beaten up and injured, you are told that you won’t get to decide if your aggressors get punished. The very authority that you represented, the one that directly led to your sorry condition, has refused to stand behind you. Allegedly, a deal has been cracked with the agitators. The declaration is clear – No First Information Reports (FIRs) to be pursued against any of the protestors.
Stills from Protests that occurred on 20th of July, in Delhi.You sit in the Hospital, wondering – what is your fate now? Who is standing with you? Will your injuries be for nothing?
Now, all these events have led to a bigger moral and legal question. When you were the one who was injured, and naturally, you will be the one who will have to bear the brunt of the said injuries, who decides the fate of your case? Whether the State can, on your behalf, just declare that nobody will be punished for throwing stones at you and nobody will be held responsible for beating you black and blue? Are your injuries supposed to be mere collateral damage, which the State can write-off for a political deal to save their skin?
Even if the same set of events are looked at from the perspective of the students present on ground, the Legal problem remains constant. Whether a blanket demand for no coercive action against any protestor be legally, or even morally tenable? Furthermore, if a blanket protection is given to anybody and everybody who claimed to be standing with the students on that date, will it logically not lead to a blanket protection for all genuine officials who, indeed, were responsible for the Police Brutality meted out on the 20th of July?
Aftermath of the 20th July ProtestsThe Law is otherwise clear. If an offence is committed, the Due process of Law must be followed.
The argument extends both ways. The aggressors on the streets must answer for their crimes. The Law cannot, and absolutely must not differentiate between the criminal. A person who has broken the law, must be dealt with, as per Due Process of Law. The law must be blind as to the identity of who has broken the law – It must be immaterial if the criminal is a student, or the Police. A blanket protection from any coercive order for ALL the people representing the protestors would logically also have to extend both ways. The argument is simple. Neither Police Brutality, nor hooliganism and anarchy have any place in a civilized lawful society.
The law postulates that generally the ‘Victim’ must be the one who decides if the offence against them is compounded or not. The Police Officer with the broken skull, and the student with a bleeding head must be the ones with the final say in their case. Similarly, neither the State, nor the leaders of a political movement can legally dictate to the victims to not pursue action against the wrongdoers.
What does the Law say?
Let us try and look at the law without any consideration for the incredibly complicated social context behind this eventuality. FIRs will generally have to be filed if an offence has been committed. The Investigation, if carried out in its true spirit, will have to gather and produce evidence of the crime committed, no matter what the State and the Political Movement have agreed upon. Consequently, if the Evidence is iron-clad, then the court will have to record a finding of guilt and punish the criminal. In a nutshell, if you have pelted stones and broken a police officer’s skull, and similarly, if you have used unreasonable and disproportional force beyond your official capacity to hurt a citizen, the Law must not care for what the agreement is. No questions asked, the crime must be punished!
It is not that the situation is completely iron-clad, legally. The State can choose to withdraw from prosecution, if consented to by the victims under pertinent Criminal Laws of the country. Furthermore, the Constitutional courts may exercise their inherent powers to quash said FIRs, owing to the complicated social context behind all such cases. These legal options, of course, overlook the capability of the State to simply be lackadaisical with these investigations.
What Next?
However, some questions must be answered if any crime remains unpunished – Firstly, as a rule of thumb, whether the State can step in on your behalf, and on the basis of an agreement where your direct consent and involvement was never present – declare that criminal action won’t be pursued against your aggressor, despite the fact that you there is clear evidence of a crime being committed? Secondly, if the first situation is allowed for one group of the people, i.e., the protestors representing the student’s movement, will the same protection not have to be extended to the Police officials who used disproportional force?
Be that as it may, the legal situation that has been given effect to with this alleged agreement is interesting. The victim has effectively been told to take a back seat, as the State and Political Stakeholders have come in to decide the fate of these cases. Whether such agreements are permissible strictly under the letter of Law remains a hotly debated topic. For now, the Apex Court has stepped in and declared a blanket release of detained protestors who are under the age of 18, and have no past criminal antecedents? One thing is certain, the legal precedent that this situation will create, is one that a Student of Law must pay close attention to.
(The author is a practicing advocate in the Gauhati High Court.)
