Farmers’ Protest In India: Should Policemen Defy Illegal Orders?
The deadlock between the agitating farmers and the government is continuing, both sides not budging from their stands over the question whether the 3 farmers laws should be repealed or not. Farmers, mainly from Punjab, Haryana, and western UP, but some also from other parts of India, have assembled in large numbers near Delhi.
In this situation, some incidents may happen, and the policemen may be ordered by the political authorities to use violence against the agitators. Should the policemen blindly carry out such orders? Should they resort to use of bullets, lathi charge, tear gas and water cannon whenever ordered by their political masters?
In this connection I may refer to a speech by Sir Robert Mark, former Chief Commissioner of Police, London, to policemen in England:
“In the legal and constitutional framework in which society requires us to enforce the laws enacted by its elected representatives, the most essential weapons in our armour are not firearms, water cannon, tear gas or rubber bullets, but the confidence and support of the people. That confidence and support depends on our personal and collective integrity, and in particular on our long tradition of constitutional freedom from political interference in our operational role.
It is important for you to understand that the police are not the servants of the government at any level. We do not act at the behest of any Minister or any political party, not even the party in government. We act on behalf of the people as a whole, and the powers we exercise cannot be restricted or widened by anyone, save Parliament alone. ”
So policemen must not blindly carry out the orders of their political masters. Certainly they may use force to defend themselves, or the lives or property of others. But it will be illegal to use it against peaceful agitators or demonstrators who are only exercising their fundamental right to peacefully assemble without arms under Article 19(1)(b) of the Constitution of India, just because they are ordered to do so by politicians. Those policemen who do so would be liable to be tried, and if found guilty, awarded severe punishment by the court.
In the Nuremberg trials held after the end of the Second World War in 1945, the Nazi war criminals took the plea that ‘orders are orders’, alleging that they were only carrying out the orders of their political superior Hitler. However, this plea was rejected and many of the accused, including Field Marshal Keitel and Gen Jodl, as well as the police chief Kaltenbrunner, were held guilty and hanged.
In Prakash Kadam vs Ramprasad Vishwanath Gupta, the Supreme Court observed:
“In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.
We warn policemen that they will not be excused for committing murder in the name of `encounter’ on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that `orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake `encounter’, it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death. The `encounter’ philosophy is a criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people in the name of `encounter’ and get away with it should know that the gallows await them. ”
In Mehboob Batcha vs State, 2011, the Supreme Court observed “Policemen must learn how to behave as public servants in a democratic country, and not as oppressors of the people. ”
The policemen would be well advised, in their own interest, to know all this.
Markandey Katju is a former judge of the Supreme Court of India. He was also the Chairman of the Press Council of India.