No sovereign immunity for killing of Raji Reddy in Telangana March

By: Madabhushi Sridhar

The Allahabad judgment should serve as a note of caution to the Government and police in the context of the Telangana agitation, the use of secret chapter of Srikrishna report, to suppress it with lathis, bullets, tear gas and closing down universities, etc

Agitating men were killed and women were raped by the police to suppress the agitation demanding a separate Uttarakhand State in 1996. The police molested women to deter them from participation. Newspapers reported the police conduct when they committed rapes.

The Allahabad High Court, in a case filed by Uttarakhand Sangharsh Samiti, gave a historic judgment directing Mulayam Singh’s Government of Uttar Pradesh to pay the compensation of Rs. 10 lakhs to dependents of those killed, Rs. 2.5 lakhs for grievous injuries resulting in permanent disability and Rs. 50,000 for detention and injuries (to around 400 persons). Holding that rape was parallel to causing death, the Court directed payment of Rs. 10 Lakhs for each rape victim and Rs 5 lakhs for sexual molestation.

Accordingly, the State paid to the kith and kin of some deceased agitators, and victims of rape or molestation. Strangely, the State found ‘illegality’ in paying compensation and appealed to the Supreme Court, which invalidated the compensation order of the Allahabad High Court on the ground that the amount had been fixed before completion of trial.

However, the principle of liability of State was not opposed. The Allahabad judgment should serve as a note of caution to the Government and police in the context of the Telangana agitation, the use of secret chapter of Srikrishna report, to suppress it with lathis, bullets, tear gas and closing down universities, etc.

In Telangana, the agitators are getting killed and the agitation is being attacked. The killing of an agitator could be violation of right to life, a serious constitutional wrong and a crime.

Mr. Gudi Rajireddy (42), who held the flag of Telangana and faced suppression strategies which included use of tear gas, died after 25 days of suffering. Tear gas spoiled his lungs and other parts of the body. Article 21 gives every person the right to life which could be taken out only according to procedure established by law. The Constitution did not provide an exception to it by killing with bullets or tear gas.

No procedure established by law gives any authority the power to kill persons for participating in a peaceful agitation. Neither the police nor any authority has any privilege or constitutional sanction for taking life of an agitator. Agitating peacefully for a cause is another right which is part of several civic rights guaranteed by a democratic society run by rule of law.

Civil society should understand how the State machinery is tackling the agitation. Can a citizen be injured and killed in the name of suppression of agitation? Will State be liable legally for such a wrong? Why is it not a crime? If use of excessive power by State results in death of a person, the State shall be liable.

If the killing is malicious and intentional or if a person is killed negligently, a criminal case has to be registered against the concerned person even if he is a police officer. As per law, any public servant has to be prosecuted for causing unjustifiable death of a citizen in colourable exercise of that public authority.

The question is what will be the liability of a public servant if death of an agitator results from exercise of authority in the hour of necessity where it became inevitable for the police to use lathis or tear gas or bullets, without being negligent?

The Supreme Court, in tune with the principles of rule of law, held, in several cases, that the State would be liable for causing death of a person in any way other than the legal way.

It is true that the public servant has authority to use State power to thwart a disorder, to secure public peace and property, etc, which might even lead to death of a person. But that does not mean that the State is immune from liability to compensate for the wrong which otherwise could be ‘murder’ or ‘causing death’ or ‘negligently causing death’ or injuring or depriving of property.

The death of Rajireddy could be a murder (under Section 302 of the Indian Penal Code) if the person who fired tear gas shells at him maliciously aimed at him. If it is a negligent use of excessive poisonous gas causing death, such an officer will be liable under Section 304A of the IPC. Besides, such person would be liable to compensate victim also.

The police should understand that it is their duty not to cause death or injury or any harm to the citizen agitating democratically for a justifiable demand. Seeking Telangana as separate State is a valid, constitutional and legal demand, which was even promised by the Union Government, and welcomed by almost all political parties (though they took a U turn later). Marching and meeting peacefully, with slogans and singing for Telangana are exercise of constitutional right of expression of protest under Article 19.

Rajireddy was not a culprit or criminal escaping police custody or from prison or a person charged with an offence which might lead to sentencing for death. The police had no authority to kill him under any law. Only on one occasion would police personnel not be criminally responsible for the death of Rajireddy by their action of firing tear gas shells: when it is not malicious and negligent.

Any leader of an agitation or a member of civil society has every right to suspect and question indiscriminate use of excessive tear gas or poisonous tear gas that killed Rajireddy and demand prosecution of the concerned person for this action or any other officer who ordered it.

If proved that action was inevitable and essential, without malice or negligence, then alone would they be exempt from criminal liability, but the State is not immune from compensating the dependents of the deceased.

Besides facing prosecution for crime, the accused is liable to civil action for tort to compensate the victim. During British rule, the sovereign was immune from compensating a victim of wrong committed by a public servant during exercise of sovereign function. Though the British changed this rule, India followed it for some decades.

In Kasturilal case (AIR 1965 SC 1039) the State was not held liable to compensate a citizen whose jewelry was confiscated on suspicion. In this case a head constable had stolen the jewelry from police station and fled to Pakistan.

This serious injustice was corrected in subsequent cases. In Nilabati Behra case, a woman was compensated for the death of her son in police custody (AIR 1993 SC 1960). The State is liable for the death of Raji Reddy and other victims of suppressive actions against Telangana agitators as per the law of the land, and people should demand that liability.

[From: The Hans India]

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