The 1949 Constitution of India (as amended) guarantees several fundamental rights in its Part III. Article 21 provides that: "No person shall be deprived of his life or personal liberty except according to procedure established by law." The Supreme Court has interpreted the scope of a “procedure established by law” that would deprive a person of his liberty as one that is "fair, just, and reasonable".Maneka Gandhi v. Union of India, AIR 1978 SC 597.Similar, if not stricter, criteria should apply to the deprivation of life.
Under Article 19(1)(b), "All citizens shall have the right ... to assemble peaceably and without arms".
Article 312 of the Constitution establishes a national police force but does not specifically govern the use of force.
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||Not party|
|1984 Convention against Torture (CAT)||Signatory|
|Competence of CAT Committee to receive individual complaints||N/A|
|CAT Optional Protocol 1||N/A|
|1998 Rome Statute of the International Criminal Court||Not party|
There is no regional Asian human rights treaty to which India could become party.
Police Use of Force
While, as a federal state, India's different states are entitled to have different laws, rules, and procedures for the police and prison officers, the administration of criminal law is governed by a federal law, the 1973 Code of Criminal Procedure. This legislation complements the 1860 Indian Penal Code.
Chapter V of the Code of Criminal Procedure addresses arrests by the police. Section 46 authorises a police officer to use "all means necessary" to effect an arrest when either the person forcibly resists arrest or attempts to evade arrest. If the person is accused of an offence punishable with death or life imprisonment, the police officer may use lethal force. This does not comply with international law, which restricts the use of firearms to situations of imminent threat of death or serious injury or a proximate and grave threat to life.
Chapter X of the Code concerns the “maintenance of public order and tranquillity”. Section 129 allows the dispersal of an assembly by force but does not address the force that may--and may not--be used to achieve this.
India also has several laws that deal with use of force in special circumstances. These laws inclyde the Armed Forces (Special Powers) Acts (AFSPA), which applies to areas declared as "disturbed" under the Act and gives special powers to armed forces to maintain public order. The Act, in modified forms, is currently in force in Assam, Nagaland, some areas of Manipur and Arunachal Pradesh.
The 1990 Armed Forces (Jammu and Kashmir) Special Powers Act remains in force for the state of Jammu and Kashmir. Section 4 of the Act gives sweeping powers to the members of the armed forces, allowing an officer who
is of the opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons or of firearms, ammunition or explosive substances.
The National Human Rights Commission is empowered to conduct oversight over the police. State police forces are also subject to the jurisdiction of relevant state human rights commissions established by and under the 1993 Protection of Human Rights Act. The 1993 Act accords the national human rights commission the power to inquire, suo motu or on a petition presented to it by a victim or any person on his behalf or on a direction or order of any court, into a complaint of a violation "of human rights or abetment thereof".
Views and Concluding Observations of United Nations Treaty Bodies
In 2014, the Committee on the Elimination of Discrimination against Women expressed particular concern about the provisions of the Armed Forces (Special Powers) Act "requiring prior authorization by the Government to prosecute a member of the security forces and the reportedly high risk of reprisals against women who complain about the conduct of the security forces”.
In 2007, Committee on the Elimination of Racial Discrimination expressed its concern about "reports of arbitrary arrest, torture and extrajudicial killings of members of scheduled castes and scheduled tribes by the police, and about the frequent failure to protect these groups against acts of communal violence."
Views of United Nations Special Procedures
The UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, visited India in March 2012. In his report of April 2013 he stated that
the powers granted under AFSPA are in reality broader than that allowable under a state of emergency as the right to life may effectively be suspended under the Act and the safeguards applicable in a state of emergency are absent. Moreover, the widespread deployment of the military creates an environment in which the exception becomes the rule, and the use of lethal force is seen as the primary response to conflict.
The Special Rapporteur recommended that India
repeal, or at least radically amend, AFSPA and the Jammu and Kashmir AFSPA, with the aim of ensuring that the legislation regarding the use of force by the armed forces provides for the respect of the principles of proportionality and necessity in all instances, as stipulated under international human rights law. It should also remove all legal barriers for the criminal prosecution of members of the armed forces.
He further recommeded that Section 46 of the Criminal Procedure Code "and legislation in all states regarding use of force, including the exceptional use of lethal force, by all security officers should be reviewed to ensure compliance with international human rights law principles of proportionality and necessity."
Views of the UN High Commissioner for Human Rights
On 14 June 2018, the Office of the High Commissioner for Human Rights released a report on the situation of human rights in Kashmir. In the section entitled "Excessive Use of Force", the report refers to the killing of civilians between 2016 and 2018, which
raises the question of whether security forces resorted to excessive use of force to respond to protesters, some of whom were throwing rocks. International human rights groups have accused Indian security forces of using excessive force and failing to adhere to applicable national and international standards on the use of force.
The Office recommended that India:
- Urgently repeal the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990; and, in the meantime, immediately remove the requirement for prior central government permission to prosecute security forces personnel accused of human rights violations in civilian courts;
- Establish independent, impartial and credible investigations to probe all civilian killings which have occurred since July 2016, as well as obstruction of medical services during the 2016 unrest, arson attacks against schools and incidents of excessive use of force by security forces including serious injuries caused by the use of the pellet-firing shotguns;
- Investigate all deaths that have occurred in the context of security operations in Jammu and Kashmir following the guidelines laid down by the Supreme Court of India;
- Bring into compliance with international human rights standards all Indian laws and standard operating procedures relating to the use of force by law enforcement and security entities, particularly the use of firearms: immediately order the end of the use of pellet-firing shotguns in Jammu and Kashmir for the purpose of crowd control.
There is no regional human rights court with jurisdiction to review police use of force in India.
There are many cases in the Supreme Court and the various High Courts dealing with the issue of use of force by police and other law enforcement authorities in India. Caselaw suggests that such use of force must respect the principles of reasonableness and proportionality. In a 2016 case, Anita Thakur v. State of Jammu & Kashmir, the Supreme Court observed:
In those cases where assembly is peaceful, use of police force is 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 human rights activists feel that police frequently abuses its power to use force and that becomes a serious threat to the rule of law.Anita Thakur v. State of J&K, (2016) 15 SCC 525.
The most recent case on police arrest and intimidation of human rights defenders is Romila Thapar v. Union of India (2018).