The world has experienced a plethora of dejecting events in the year 2020. Indians experienced, from the unsettling comfort of their homes, a pandemic-induced lockdown, the migrant labour crisis and several nation-wide protests. Amidst these events, a fight for the safety and security of India’s women has continuously lingered in the background. On the 14th of September 2020, a woman in the Hathras district of Uttar Pradesh (UP) was allegedly gang-raped. The woman allegedly sustained spinal cord injuries in the process, and died on the 29th of September 2020 in Delhi’s Safdarjung Hospital. This incident gave rise to much fury against the Uttar Pradesh government, which was accused of mishandling the case. The irate nation felt helpless, as they could do nothing to help the bereaved family.
The country was unaware that prominent opposition leaders Rahul Gandhi and Priyanka Gandhi Vadra, were making their way to Boolgarhi, the village in Hathras that was enveloped in darkness due to the events that had transpired there. Gandhi and Vadra were two politicians who thought it their role to comfort a mother who had just lost her child. On their way there, the convoy of the two prominent leaders was stopped – twice – and the police were seen as throwing their weight around. There was a great rumble among the country’s media and public, which deemed the interception of, lathi charge on, and arrest of the two great leaders an act of oppression and abuse of state powers. This essay argues that the usage of criminal law to stop and arrest these opposition leaders to maintain order was lawful and justified. The (actual and potential) usage of sections of the Indian Penal Code, 1860 (IPC), was not oppressive or a misuse of state power, but a justified means of ensuring the safety of not only the residents of Boolgarhi, but also of the two politicians.
On the 1st of October, 2020, in anticipation of protests in the district, the Hathras District Magistrate Praveen Kumar Laxkar invoked section 144and passed an order sealing the borders of the district, and prohibiting the unlawful assembly of more than five persons. It was held in Emperor v. Bishan Datt, that an order must be promulgated in public interest and must be issued and published publicly (and must not be stated in a civil suit). These requirements were met, as the purpose of this order was to safeguard the residents of the village and the district against politically-instigated protests or riots and to “maintain law and order”. Moreover, the order was published and widely publicized in the media via social media platforms and news reports.
On the same day, Rahul Gandhi and Priyanka Gandhi Vadra attempted to make their way to Boolgarhi to meet the family of the victim, but when their convoy was intercepted and asked not to proceed further by the UP police, they decided to walk the 142 kilometres to Boolgarhi instead, a walk which would usually take a person more than 28 hours to complete, at the average pace of 5 kilometres per hour. On their way to the village, they were stopped by the UP police once again, and asked not to move forward. When the politicians (and the gathered crowd consisting of bodyguards, party workers and the general public) insisted on moving forward, the UP police lathi-charged them, and subsequently arrested the two leaders, Gandhi and Vadra.
The essay will analyse the three penal code sections which the politicians were said to be in contravention of: sections 188, 269 and 270 of the IPC. Further, the essay will explore the allied sections of the IPC that must be read with section 188. Moreover, the procedural, legislative and judicial nuances attached to each section will be considered.
Section 188 of the IPC
Section 144 of the CrPC had been invoked and an order under it was in operation in Hathras. Gandhi and Vadra were going to try to enter the district despite its sealed boundaries. They were also bringing along a barrage of bodyguards and party workers, in violation of the section 144 CrPC order. As per section 141(3) IPC, an unlawful assembly (of more than five persons) was formed, which tried to commit an offence (listed under section 188 IPC). All the ingredients for the offence under section 188 of the IPC to be made out were fulfilled:
1. There was an order promulgated by the District Magistrate of Hathras.
2. The District Magistrate was lawfully empowered to promulgate the order.
3. The accused, Gandhi and Vadra were aware of the order – the intercepting police officers also described the nature of the order.
4. The accused disobeyed the promulgated order and moved on despite being intercepted twice.
Any reasonable person would know of the harm, in the form of a riot, that such forceful entry, with a large group of people, in a politically charged environment might cause. Rahul Gandhi also argued that he did not want to carry on with a crowd, but continue alone to the victim’s home in Boolgarhi. This argument is unreasonable because his security detail includes Z-Plus security personnel provided by the CRPF and additional security by the state police. Therefore, Gandhi, Vadra and their security alone would constitute more than five persons. Thus, based on the possibility of the commission of the cognizable offence under section 188 IPC, the policemen were empowered under section 151 of the CrPC to arrest the leaders (without orders from a Magistrate or a warrant), and any other members of the unlawful assembly.
Section 151 of the CrPC (allied)
Under S.151 of the CrPC, the police officer must know about the design to commit the cognizable offence. This design was undoubtedly known to the police in the current case, as it was communicated by the potential perpetrators themselves. The section also states that the officer must believe that the arrest is the only way of preventing the commission of the cognizable offence. In the current case, the police officers can be understood to have reason to believe the same, because their first apprehension of the politicians on the Yamuna Expressway was in vain.
The Supreme Court, in its decision laid down in R.K. Garg v. Superintendent, District Jail, Saharanpur, held that the police were justified in arresting people proceeding to deliberately violate an order under section 144 of the CrPC, despite being informed of its promulgation.
Section 129 of the CrPC (allied)
With respect to the lathi-charge by the UP police, their actions can be justified under section 129 of the CrPC. Assuming (due to lack of information) that the commanding policeman was not below the level of a sub-inspector, under s.129 of the CrPC, he could ask an unlawful assembly (which the one in question has been proven to be) to disperse. Since in this situation this dispersal order was not heeded, the police was justified under s.129(2) CrPC, to disperse the assembly with the use of appropriate force, in the form of a lathi-charge. In the case of Anita Thakur v. State of J&Kthe SC, stated that citizens were guaranteed the right of speech, the right to assemble for the purpose of carrying peaceful protest processions and right of free movement as per articles 19(1)(a), 19(1)(b) and 19(1)(d) of the Indian Constitution. Despite their existence, reasonable restrictions were placed on these rights by law. If a public assembly were to become unlawful, the district administration and police could take measures, including the use of controlled and specified force, to prevent injuries and damage. Therefore, it is evident that these measures were taken in the current case, in accordance with statutory law and judicial pronouncements.
Consideration of the offences under sections 269 and 270 of the IPC
Besides S.188, an FIR was filed against Gandhi and Vadra under sections 269 and 270 of the IPC. These sections talk about negligent and malignant acts that are likely to spread an infection of a disease dangerous to life. Since, during the politicians’ visit, the policemen stationed in Hathras were suspected of being infected with COVID-19, and the district was a potential containment zone, any person’s entry into the district posed the risk of spread of infection. Since Gandhi and Vadra had not actually entered the district, they had neither committed the negligent, nor malignant act. But since both sections 269 and 270 lay down cognizable offences, stopping the crowd from entering is justified under S.151 of the CrPC, since the design for the commission of these cognizable offences was known to the police officers (made sufficiently clear by the politicians themselves), and they could restrict the commission of the offence only by arresting the leaders. Since the offences under sections 269 and 270 were not committed, going into the ingredients of these sections would not be necessary, as no prima facie case would be made out. Moreover, not allowing Gandhi, Vadra, and their supporters to enter the Hathras district was, in a way, beneficial to them. If they were to enter a potential containment zone, their own risk of contracting the virus would be great.
Conundrum between section 188 of the IPC and section 195 of the CrPC
There exists a conundrum between s.188 of the IPC and s.195 of the CrPC. Section 195 CrPC states that the courts must not take cognizance of an FIR filed under S.188 of the IPC unless there has been a written complaint by the public servant whose lawful order has been contravened, who, in this case, is the District Magistrate of Hathras. This was also held by the Supreme Court in C. Muniappan v. State of Tamil Nadu. This might explain why no court took cognizance of the case against Gandhi and Vadra (presumably due to the lack of a written complaint by the District Magistrate), as the role of the police in such cases is only preventive.
The Bigger Picture
The preceding point of view is an essential stream of thought. In addition to being a healthy legal rebuttal to the opposition’s tactics in a democracy, it lays bare those very tactics to the people. Quoting articles (or simply the libertarian principles behind these articles) of the Indian Constitution to ‘expose’ the party in power, may allow the opposition to garner support for an anti-government stance. But in the process, the vulnerability of the opposition must not be forgotten; a vulnerability it shares with the party that forms the government – the vulnerability to succumb to the seductive lure of power. If the opposition, suffocatingly held in the grips of this lure attempts to sway the people, it is the duty of the people themselves to safeguard themselves from such influence. This act of rescuing oneself (and one’s readers) from this influence of the opposition is not in any way an act synonymous with giving in to the government’s authority. Instead, it is a part of the enthusiastic debate of survival in a dichotomous system of government, which warrants the opposition be criticized on their actions as much as the government. This article is an attempt at doing exactly that, by refreshing in the minds of the readers the simple rule of analytically critiquing everything one is told.
No one instance can signify anything about the rules of criminal laws. They exist for the purpose of enforcement, and are bigger than any one single incident. This incident with Rahul Gandhi and Priyanka Gandhi Vadra lays bare the way in which politics and the media functions in this (or, for that matter, any) country. As has been illustrated, the acts by the police were justified and in tandem with not only legislation but also judicial precedent. Yet, the narrative of the opposition and the mainstream media is twisted to mislead the common man into a dark abyss, wherein any one glimmer of ideological light may seem like a saving grace. Every seemingly violent act is not fascist, just as every freedom given to the people is not absolute. When these freedoms are understood to be absolute, means of control must be adopted; but quite often, control is equated with absolute control. The lawful and just arrest of senior political leaders, although highly criticized, shed light on the standard that a democracy such as ours must try to live up to – the law must rank higher than any individual or group of individuals put together. When the rising tide of instigating misinformation dies down and things are looked at in perspective, a nation can soar.
The author would like to thank Prof. Shivangi Gangwar of Jindal Global Law School for her valuable feedback on and help with this piece.
[Manan Parekh is a second-year law student at Jindal Global Law School.]
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