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Police Violence in the Madras High Court

A report on the events leading to the incidents inside the Madras High Court on 19 February when the police went on a rampage. Was the police action driven by motives other than to preserve "law and order"? There are important issues that the Bar also must ponder over - including on how it takes decisions affecting the lawyer community and the work of the courts. But the police action last week was inexcusable and damages the Constitutional scheme of things.

COMMENTARY

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Police Violence in the Madras High Court

V Krishna Ananth

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-ruling Dravida Munnetra Kazhagam (DMK) too had set out on this course at that time. While Tamil Nadu Chief Minister M Karunanidhi appeared to change tack on the i ssue, there was no let-up in the protests by other political parties such as the Marumalarchi Dravida Munnetra Kazhagam

A report on the events leading to the incidents inside the Madras High Court on 19 February when the police went on a rampage. Was the police action driven by motives other than to preserve “law and order”? There are important issues that the Bar also must ponder over – including on how it takes decisions affecting the lawyer community and the work of the courts. But the police action last week was inexcusable and damages the Constitutional scheme of things.

V Krishna Ananth (krishnananth@gmail.com) is an advocate and political commentator based in Chennai.

Economic & Political Weekly

EPW
february 28, 2009

T
he brutal use of force on 19 February 2009 by personnel from the Swift Action Group (SAG) commanded by officers of the Tamil Nadu police against the lawyers, court staff and litigant public inside the Madras High Court premises has raised a set of issues that goes beyond concerns of law and order. The incidents call for concerted measures on the part of the state and civil society if the constitutional scheme of things and the rule of the law are to be preserved.

It will be in order, therefore, to narrate the sequence of the events as they unfolded during the couple of weeks before the unseemly act by the police between 3:15 pm and 7 pm on the 19th.

Political Affiliations

The lawyers have been on a course of boycott of courts since 30 January 2009 demanding intervention by the union government to halt the offensive by the Sri Lankan army in the Tamil dominated northern region of the island nation. The protest by the lawyers was not an isolated act. The members of the Bar, in fact, had joined the protests across Tamil Nadu ever since the Sri Lankan army’s current offensive had begun in September 2008. The

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(MDMK), the Pattali Makkal Katchi (PMK), and the Viduthalai Chiruthaigal Katchi (VCK), who all kept the issue alive.

The fact is that the Bar in Tamil Nadu consists of members of these political parties as much as those from the Congress, the Bharatiya Janata Party, the All India Anna Dravida Munnetra Kazhagam, the communist parties and others. The s ystem, all this while, has recognised this and the government of the day takes the political affiliations of the practising lawyers into account when appointing government pleaders, public prosecutors and also members of the panels for the various corporations run by the state and central governments. The Bar also consists of persons who do not belong to any political party, some of whom, much like the urban middle classes today, display their contempt for all forms of political association and actions. They have, as a matter of course, stayed aloof over the years from the affairs of the Madras High Court Advocates Association (MHAA), the body with the largest membership.

The MHAA, given its numerical strength and its composition in terms of being a body whose leadership is constituted by the associates of the various political p arties, has been able to enforce court

COMMENTARY

boycotts and other forms of agitations with ease. It is also a fact that each one of the political groups manages to drive the MHAA into announcing a court boycott: the general body meetings of the MHAA are, most often, marked by demagogy rather than any serious debates and it is possible for even a small group to have the association declare a court boycott. And there have been instances, in the past, of advocates being heckled at for attending courts during a boycott. One such incident involving a senior counsel took place in the recent round of boycott as well. (It is also a fact that membership of the MHAA is open and not subject to scrutiny, so there are members who are not full-time practising lawyers/advocates.)

The decision to boycott courts from 30 January was taken by the MHAA and endorsed by such other associations as the Law Association and the Women Lawyers’ Association. Another organisation, the Madras Bar Association (MBA), has neither been enthusiastic about such protests nor has it protested against them in any manner.

The MHAA general body in its meeting on 13 February had decided to return to the courts from the 19th. The lawyers, in fact, had attended courts on the 13th and the decision to extend the boycott until 18th was made under pressure from the general body of the MHAA. The demagogues in the MHAA wrested the initiative for the moment while the leadership managed to have it recorded that the boycott would end after 18 February 2009. Things did appear to be normal on the morning of 19 February – except for the presence of a large posse of policemen, most of them in riot gear, in the corridors of the Madras High Court. It was presumed then that the force was stationed there to “protect” Janata Party president Subramanian Swamy who had come to the court with a group of his followers. He had no specific business in the court that day; in any case, anyone is free to visit the court and none made that into an issue that day.

A bench consisting of Acting Chief Justice P J Mukhopadhyaya and Justice V Dhanapalan, was taking up the report submitted to them by Justice P K Mishra and Justice K Chandru about the incident in their court on 17 February, when Swamy had been heckled and eggs thrown at him.

The bench referred the matter to a fivejudge bench to decide whether it could take suo motu notice of contempt. Swamy, who sought to record his presence in the court at that stage, was informed of the law and the processes by the acting chief justice. The legal position, insofar as contempt proceedings are concerned, is that once the court finds grounds for taking suo motu notice of contempt, it is then a matter between the bench and the contemnor. In other words, Swamy has no locus standi in this matter. The process of law taking its course was initiated as early as at 10:30 am on 19 February.

The important point is that the police had no role whatsoever to play insofar as the incident in the court hall on 17 February involving Subramanian Swamy. The act was committed inside the court hall and was thus a matter to be taken up by the judges directly and not by the police.

Motives for Police Action

As for the immediate provocation for the police action on 19 February, the police attribute it to a scuffle inside the police station when a group of lawyers were being arrested. The charge against them was that they had obstructed a police officer from performing his duty. Khader Mohideen, assistant commissioner of police, had filed a complaint at the police station in the high court premises that he was prevented from discharging his duties (protecting Swamy when he visited the court on the 17th) by a group of advocates. Section 41(e) of the Criminal Procedure Code (CrPC) does provide for an arrest without a warrant when a police officer is obstructed from performing his duty; but the very existence of that section is to effect an arrest at the time of the offence being committed and not after a couple of days. In other words, there was no basis for the police to have made the arrest of a group of advocates under Section 41(e) almost 48 hours after the purported incident.

The lawyers had gone over to the police station to register a complaint against Swamy under sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Swamy, according to them, had used casteist expletives against the advocates and the complaint was on that basis. The relevant law provides for the immediate arrest of the person against whom the complaint is made and puts the onus on the accused to prove his/her innocence. The lawyers c annot be blamed for having known the law better. But that is when the police b egan the lathi charge.

It began as a scuffle inside the police station at about 3:15 pm. And within minutes, the SAG personnel (who were present in the premises since morning) as well as many senior police officers, wearing h elmets and carrying shields and lathis went about wielding them against anyone and everyone in the premises and in the corridors of the city civil court, the small causes court and the family court. They did not discriminate between the lawyers, l itigants, and the court staff and freely broke the glass panes of the windows and the doors of the buildings. The lathis they carried were not the same as the ones they carry on ceremonial occasions; the SAG personnel were too innocent to be able to distinguish a lawyer from a judge – A rumughaperumal Adityan, a senior judge of the high court also suffered a lathi blow when he tried to stop the p olice rage.

It is now on record that the police did not have the permission or invitation from the appropriate authorities to enter the court premises. Similarly, there is no record or evidence of a formal authority from an executive magistrate for the lathi charge. This is in clear violation of the relevant sections in the CrPC. Section 130 of the CrPC mandates an order from an executive magistrate before the police uses force to disperse an assembly. And Section 131, even while sanctioning police action without such an order in the event of public security being manifestly endangered, mandates that the police officer shall communicate with an executive magistrate at the earliest practicable moment. The Code states that the police officer “shall thenceforward obey the instruction of the Magistrate, as to whether he shall or shall not continue such action”.

The point is that even if the police c ontends that the lathi charge had to be resorted to without sanction from an e xecutive magistrate on grounds that “public security” was “manifestly endangered’’ by the lawyers, the fact that the use of force continued unabated for four hours and that the concerned police officer did

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EPW
Economic & Political Weekly

COMMENTARY

not care to communicate with the executive magistrate (despite all the communication gadgets in their possession) is something that establishes the designs of the police. And all this happened inside the premises of the court when the police were on the rampage inside the court premises. All this was shown on the v arious television channels.

As for the police station in the premises being set on fire, the sequence of events and strength of the police force in the premises are important facts that have to be factored in. The lathi charge by the SAG personnel started at about 3:15 pm and there was no let up by them at any point of time. Now, it is simply impossible for the lawyers, who were by that time hiding themselves inside the MHAA library and also around the chambers of the judges, to have reached the police station which is on another side of the premises and set fire to it. In any case, the version that the police force (over 500 personnel by even conservative estimates) was unable to p rotect the police station defies belief.

One may have a different opinion on what must happen in Sri Lanka or on

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whether the lawyers must even go on strike. The Bar too must introspect on a variety of issues. But that should not lead one to hold a brief for the police and their action on 19 February. It is also not correct to blame the bar and its members for their association and affiliation with p olitical parties. It is important to note that the Bar being a microcosm of the complex socio-political mosaic that determines Tamil Nadu’s democratic discourse, the course correction on the direction of politics will have to take place in the larger mosaic of politics.

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Economic & Political Weekly

EPW
february 28, 2009 vol xliv no 9

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