Does the Government not want the common masses to have the right of self/ private defense in face of unlawful police firings? Is it the REAL reason why the Government wants firearms laws to be tougher and more tougher? Is that how the guilty Police officers can be practically protected and successfully behave and fire like Gen. Dyer of Jallianwala Bagh massacre? Extract from the (Retd.) Supreme Court Justice Katju Commission Report mentioned below -
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3. From the testimony of witnesses it further appears that on 14/10/2015 police posted at the spot under the charge of Sh. Charanjit Singh, S.S.P. Moga resorted to Lathi Charge as also firing on the crowd which was sitting peacefully on the spot. Testimony of the witnesses’ reveal that the police action was unprovoked, sudden and without any warning as the law demands. As per law, the police action as to be as per a specifically defined law, that is the crowd has to be informed well in time declaring it to be an unlawful assembly and warning them to leave the spot peacefully failing which lathi charge, could be ordered followed by use of water cannons and tear gas etc. The act of police firing, as a last resort, also necessitates a prior warning with ample time space to enable ‘dispersal’. All these mandatory notices/ warnings are to come from an accompanying magistrate. Testimonies of witnesses and their deposition shows that no such warning was issued at all which make the police action out right ‘unlawful and illegal’.
4. Witnesses deposing before this Commission clearly stated that no such warning or announcement was made by the police/magistrate, and we see no reason to disbelieve them. No State or police authority has cared to appear before us to contradict this version of eye witnesses.
5. It was also brought to the notice of the Commission that some news papers datelined 15.10.10215 i.e. a day after the incident had also highlighted that no such mandatory announcement or warning was made by the police/magistrate before resorting to the Lathi Charge and firing.
Apparently there was no contradiction to these media report either by the state or the police authorities. The commission is well aware of the unfortunate, illegal and unethical practice that in most of such cases, a statement is subsequently got signed by the police authorities from an individual having magisterial powers, stating that the statutory warning and due notice was given to the public. Statements and deposition of the witnesses give no ground to this Commission to believe the plausible theory of a police defense which might be tabled subsequently. Testimonies of the witnesses and circumstantial evidence are enough to convince this Commission of the illegal and arbitrary nature of the police action in this instant case. The FIR registered on 21.10.2015 at the behest of the police ‘on the ground of common perception of people’ does not refer to the statutory provisions. Had any mandatory warning been issued by the police, such a fact should have been included in the said FIR.
Copy of the FIR is placed on record.
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6. In some statements and affidavits to this Commission, names of some police officials have been specifically mentioned. These names include those of Sh. Charanjit Singh S.S.P. Moga and one Sh. Kular, SHO. A number of witnesses, during verbal examination, stated that they did not want to take any names on account of their apprehension that they will be further victimized. This commission could see fear anxiety writ large on their faces and such, would like to particularly again refer to the FIR dated 21.10.2015, which has already been referred to in the preceding paragraphs and which states that sh. Charanjit Singh, SSP Moga was leading the police contingent posted at the venue of police firing and lathi charge. Obviously he cannot be absolved of his responsibility. Punjab Government is reported to have suspended this official, which indicates that even the Punjab Government is of the opinion that Sh. Charanjit Singh, was guilty of dereliction duty.
The Commission takes strong adverse cognizance of the statements of several witnesses that the police had resorted to the Lathi Charge and firing in a very haphazard manner as if they were firing in ‘an enemy target group’ on a war like situation. The police is alleged to have fired on unarmed civilians themselves hiding behind the pillars of a small brick construction located at the cross road of the scene of occurrence as also from behind a tractor trolley which was turned ‘turtle’ on the link road in question and used as a ‘vantage point’ for hiding themselves and shooting at the hapless crowd which included women and even minor children.
Police firing is an extreme measure to be resorted to only in very rare and exceptional situation. We have already pointed out in preceding paragraphs that the crowd had left the main road and was not blocking or obstructing it. It had in fact dispersed towards the nearby link road leading to the village Behbal Kalan. Even assuming that the crowd was blocking the link road in question, it could easily have been dispersed by first making some announcement on loud speakers and then by use of water cannon, tear gas and rubber bullets etc. Some witnesses have stated that tear gas was used, but along with and accompanied by police firing with live bullets. This, in our opinion, was totally uncalled for and unjustifiable. We are living in democracy and people have right to protest and assemble peacefully without arms as provided for in Article 19 of the Indian Constitution. The crowd assembled at Behbal Kalan was unarmed and peaceful. They had neither committed any violence nor threatened police. Therefore, it was just no occasion for the police to resort to such an extreme step as firing with live bullets. This commission unequivocally condemns the efforts of the Punjab Government to suppress the facts and trying brush it under the carpet. This commission thus holds Punjab Government to be a willful accomplice in this instant case and holds it guilty.
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13. Before concluding, we would like to say that in a democratic country like India, the police are the servant of the law and not of politicians. I am told that some police officers of Punjab police had approached Sh. Shashi Kant, General Secretary of this Commission claiming immunity on the ground that they just receive orders with regard to the actions to be carried out, directly from their political masters and that they have no option but to carry them out, willingly or unwillingly. In this context, this Commission is constrained state categorically that if a police officer receives an illegal order from his political masters, it is his duty not to carry them and instead clearly inform his political masters accordingly. This strange plea of “Orders are Orders” was also taken by the Nazi war criminals at the Nuremburg Trials after the end of Second World War, but this plea was out rightly rejected and many of the accused were hanged.
It is about time now, that the police in India learns to start acting responsibly. We are no longer living under a foreign rule, but are an independent democratic and sovereign country in which people themselves, are the real masters and all State authorities including the police are their servants. The police must therefore, change its ways and stop acting as a colonial strong arm of their political masters. They are accountable to the law of the land and to the Indian populace as such. In the Supreme Court decision in Parkash Kadam Versus Ram Parkash Gupta (2011), it was clearly held that a fake encounter by police even on direction of its so-called superiors amounts to murder and those police men who committed the crime may face death penalty. Similar is the position in this instant case. No police officer can take a plea that he had resorted to Lathi charge, firing or any other such drastic action at the instance of any politician or was even otherwise remotely controlled by his superiors. The officer on ground has to take the decision as per law of the land, procedures there for and be responsible for it. Besides statutes, orders of the superior courts are also equally enforceable and any violation thereof may find the guilty officer not only of willful dereliction of duty and disobedience of law but also of a willful and criminal contempt of the orders of the judiciary.
This Commission would, while reprimanding such officials would also like them to ponder over the question as to in how many of such cases where escaped despite being guilty or where they were actually held to be guilty, had any of their superiors or political masters, stood by them and admitted to be their accomplice on the ground that such guilty officers were just carrying out their orders.
14. Lastly, this People’s Commission hopes and wishes that in this instant case, police and administration will desist from using their pressurizing and intimidating tactics to force people of Behbal Kalan and neighbouring areas ‘into submission’. We could see the fear writ large on the faces of those who deposed before this commission and would like to continue monitoring the situation.
Source the (Retd.) Supreme Court Justice Katju Commission Report available at https://www.lfhri.org/index.php?option=com_content&view=article&id=249:full-report-of-retd-justice-katju-commission-regarding-killing-in-behbal-kalan-punjab&catid=1:latest-news&Itemid=50
May also read the catena of Supreme Court judgements that say "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly." In other words it means that any legislation that has implications with right of self defense like Arms Act 1959, it's Rules or Notifications must pass this test "the right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly.". The relevant extract from judgments can be read here https://www.lawyersclubindia.com/forum/Objections-against-proposed-arms-rules-2015-121734.asp
