Opinion Maratha agitation and lathi-charge: Why aren’t we more appalled by the police violence on peaceful crowds?

A colonial relic, and one that was responsible for the death of a beloved freedom fighter, the lathi’s continued use to maintain law and order today should cause concern

Maratha community people welcome Maratha reservation activist Manoj Jarange Patil as he arrives to hold a meeting, in Thane, Tuesday, Nov. 21, 2023. (PTI Photo)

Avanti Deshpande

December 5, 2023 12:51 PM IST First published on: Dec 5, 2023 at 12:51 PM IST

A lathi charge carried out by the police last month during an agitation for Maratha reservation in Antarwali-Sarathi village in Maharashtra’s Jalna district has snowballed into a political firestorm for the state government. It even elicited an apology from Deputy CM Devendra Fadnavis. Initially, the press coverage largely stated that this protest was a peaceful agitation, a claim that the Jalna district collector has since disputed, alleging that protesters had pelted stones at the police. On November 8, 2023, this newspaper reported what can only be described as the horrifying treatment of protesting villagers at the hands of the police which resulted in one lady having to undergo plastic surgery for her nose due to the severity of the beating she received during the lathi charge.

The indiscriminate use of the “lathi”, a symbol that epitomises colonial rule, is a common feature at protests across the country. The central government has made much fuss of its seeming desire to decolonise the Indian criminal justice system and has introduced three criminal law bills to that effect. An ambitious and admirable goal no doubt, but here we must pause to ask, if the government so ardently desires that we rid ourselves of the remaining shackles of colonialism then why has police reform, specifically the use of a colonial relic such as the lathi, not been at the forefront of this agenda of decolonisation as well?

To put this in perspective, consider that the term “lathi charge”, used to describe a means so often favoured by the police to disperse crowds and even peaceful protests, finds no mention in any of the three principal statutes governing substantive criminal law in India — the Indian Penal Code, 1860 (IPC), the Indian Evidence Act, 1872, and Code of Criminal Procedure, 1973 (CrPC). Under section 129 of the CrPC, the police have leave to employ civil force for the dispersal of an unlawful assembly and the subsequent section 130 permits the police to use armed force to disperse an unlawful assembly. The Supreme Court in Anita Thakur and Ors. v. Government of J&K and Ors. (2016) observed that “in cases where assembly is peaceful, use of police force is not warranted at all”. The court also noted that the use of excessive force by the police and the continued use of force even after a violent situation had been brought under control was a serious issue. In the 1979 case of Karam Singh v. Hardayal Singh and Ors, the Punjab and Haryana High Court listed three essential elements that needed to be fulfilled for the order of use of force to be given by a magistrate. These three prerequisites are, firstly, that 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; secondly, such assembly is ordered to be dispersed and lastly, the assembly does not disperse despite orders to disperse. In Police Commissioner and Ors v. Yash Pal Sharma (2003), the Delhi High Court denounced the use of force and lathi charge by the police even though the demonstrations and march had been peaceful and were without any arms. Thus, despite judicial condemnation of this practice, the use of lathis at peaceful protests continues, and is, sadly, not an uncommon phenomenon at protest sites in India. One may recall the order given during the farmers’ protests by the then sub-divisional magistrate of Karnal, who on camera instructed police to “crack open” the heads of protesting farmers.

Read | Battered and bruised, Antarwali-Saraati closed ranks behind Jarange-Patil to lend voice to Maratha quota demand

It is also important to remember that the misuse of lathis and lathi charge by police, especially during peaceful protests, has significant constitutional implications and is a grave violation of citizens’ fundamental rights under Article 19(1)(a) and Article 19(1)(b) i.e., the right to freedom of speech and expression and the right to peaceful assembly, respectively, enshrined in the Constitution of India. In terms of international law, Article 3 of the UN Code of Conduct for Law Enforcement Officials (1979) provides that “law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty”. Further, Principle 13 of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990) discusses policing unlawful assemblies and stipulates that even if an assembly is deemed to be unlawful, if the gathering is peaceful in nature, then the police ought to keep the usage of force to a minimum. Further, Principle 4 clearly provides that law enforcement officials shall apply non-violent means before resorting to the use of force and firearms, as far as possible. There’s no doubt that the maintenance of public order is one of the primary responsibilities of the police. However, the conduct of the police in achieving this cannot be unrestrained and must rest on the principles of “legality, necessity, proportionality, and accountability” as recognised by the International Rules and Standards for Policing. Lastly, a recent comprehensive report (Annex I) by the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment noted that heavier lathis are particularly dangerous and that “their use fulfilled no legitimate law enforcement purpose that cannot be achieved through the use of standard batons”.

Citizens dying and being rushed to the hospital soaked in blood for participating in peaceful protests, a fundamental right protected under Article 19 of the Indian Constitution is simply unacceptable and cannot be condoned. It is deeply distressing that lathi charges have been so ingrained in the public consciousness that they are so often treated as little more than routine occurrences, by both the general public and the media alike. Before we inure ourselves to this antiquated and cruel mode of “maintaining law and order”, we would do well to remember that its torchbearers were the British and that it was a lathi charge that led to the death of a prominent, beloved, and extremely respected freedom fighter of our country, Lala Lajpat Rai. It is quite disheartening that an instrument championed by the British Raj to suppress dissent and protests has made a place for itself as the customary mode for quelling even peaceful protests in independent India.

The writer is a Mumbai-based lawyer