VIOLATION OF FUNDAMENTAL RIGHT DUE TO POLICE MISCONDUCT; PECUNIARY COMPENSATION CAN BE AWARDED FOR IT

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violation of fundamental right
IN THE PRESENT WRIT PETITION FILED BY THE PETITIONERS under Article 32 of the Constitution of India, the petitioners were migrants of the State of Jammu & Kashmir (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 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.
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 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 Supreme 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 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.”
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 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 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 Hospital, 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.
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 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.
The petitioners filed contempt petition No. 155/2007 alleging violation of Supreme Court’s order dated 13.07.2006 wherein notice was issued by Supreme 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.
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 starting marching towards Katra. Administration at Sula Park requested them to go back. All 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 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.
The Supreme Court 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,
granted relief of compensation of Rs. 2,00,000 (rupees two lakhs only) to petitioner no. 1 and Rs. 1,00,000 (rupees one lakh only) each to petitioner Nos. 2 and 3, which was directed to be paid to these petitioners within a period of two months.
The operative part of the judgment reads as under:-
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 petting 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, 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.
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 Rs. 2,00,000 (rupees two lakhs only) to petitioner No.1 and Rs.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.
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.
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 absolutely necessary. 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 subsidizes.
Authorities relied upon : 1979 Crl.L.J. 1211, 1969 ACJ 28, 1962 Supp (2) SCR 989.
Reference : Supreme Court. Anita Thakur & Ors. v. Govt. of J & K & Ors., Writ Petition (Criminal) No. 118 of 2007 [Under Article 32 of the Constitution of India]