- NL Sena
Police enjoy sovereign immunity for using force to maintain peace and order. It’s no justification for violence, though.
On December 15, the Delhi police entered Jamia Millia Islamia University, amid protests against the Citizen Amendment Act, and used overwhelming force against the students. The students have described the police’s action as “brutal” and “gruesome”.
Petitions were filed in the Supreme Court seeking a judicial enquiry into the police’s action as well as medical assistance and compensation to the injured students. The top court directed the petitioners to approach their respective high courts. The Delhi High Court, in turn, issued a notice to the Centre and the state government, but declined to provide interim protection against arrest to the students.
Many civil society groups, public intellectuals, and student bodies have denounced the action of the Delhi police. It hence becomes pertinent to understand the rights and the powers of the police with respect to a university.
Police’s powers to enter a university
Section 41 of the Code of Criminal Procedure, 1973 grants powers of arrest to the police. The provision provides a general power to a police officer to arrest a person without warrant and without an order from the magistrate. Notably, the CrPC lacks a provision preventing the police from entering any university to arrest a person, with or without a warrant.
The arresting powers of the police are very wide. Under Section 48 of the CrPC, a police officer can pursue a person whom they are authorised to arrest to any place in India even without a warrant. This implies a police officer can arrest a person even outside their jurisdiction.
Section 47(1) provides that the owner of a property has to allow a police officer to freely enter if they have reason to believe that the person to be arrested is inside. In addition, if the officer isn’t allowed in, they have the legal power to break open a door or window to enter or search that place, as laid down under Section 47(2) of the CrPC. Moreover, Sections 165 and 166 of the CrPC empower the police to search any place without a warrant.
From this, it’s clear that the police can enter a university. Why is it being argued then that they cannot?
Need for permission
Interestingly, at the hearing on the petitions, the solicitor general told the Supreme Court that the Jamia’s proctor’s office had permitted the police to enter the campus. Jamia’s chief proctor, Prof Wassem A Khan, disputed this submission as “incorrect”: “Chief Proctor was the first person to condemn the barbaric behaviour of the police on the campus. We reiterate that the police entered the campus without the permission of any JMI official including the chief proctor.”
In England, universities such as Oxford and Cambridge enjoy the status of being sanctuaries through a series of royal charters. In India, the Kerala High Court observed in Vijaykumar vs State of Kerala, “Considering the college is a ‘temple of learning’ any action of the police inside the college campus shall, as far as possible, be with the knowledge of the principal.”
The case stemmed from the Kerala police entering a college and stopping the students from peacefully protesting against the principal’s arbitrary decision of hiking fees and refusing to felicitate the outstanding students.
Universities are generally believed to be free spaces. A de facto treaty of non-aggression between the police and the university is passed on by the older generation of the police to the younger generation as part of the conventional wisdom of the job. Hence, universities maintain their own campus security to avoid calling the municipal police, and Jamia is no exception. It has a dedicated security team comprising of retired army personnel.
Police’s use of force
It is true that the police enjoy sovereign immunity for using force in order “to maintain peace and order”. However, this immunity can’t be invoked as a reasonable justification for violence. In Anita Thakur vs State of Jammu & Kashmir, the Supreme Court, in a matter pertaining to the use of force by the police during a peaceful protest march by the migrants from Jammu and Kashmir to Delhi, held that the doctrine of sovereign immunity doesn’t apply to cases of the violation of fundamental rights and therefore cannot be used as a defence in public law.
In addition to this, under international law, India is bound by UN Basic Principles for the Use of Force and Firearms. Section 13 of the basic principles states that use of force in dispersing non-violent unlawful assemblies should be avoided and if that’s not possible, then minimum force should be used. In this case, a video has gone viral of non-protesting Jamia students running in panic inside the Central Library’s Reading Hall after the police personnel fired teargas shells on the campus.
The Model Police Manual drafted by the Bureau of Police Research and Development provides that before using teargas shells or lathicharge, the commanding police officer shall ensure that a fair warning is given to the crowd in a clear and distinct manner.
A democracy without dissent is an oxymoron. It’s said that for a society and a university to flourish as a whole, the protection of diversity and dissent is mandatory, even at the price of disorder.