Private Defence, and the State's Use of Force

Section 4, administration. The administration of the police throughout the general police district vests in an Inspector-General, with such Deputy and Assistant Inspectors-General as the State Government thinks fit; and within the local jurisdiction of the Magistrate of the district it vests, under the general control and direction of that Magistrate, in a District Superintendent.

Read sections 3 and 4 together and the whole of Prakash Singh is visible. Superintendence sits with the political executive; administration sits with the Inspector-General; and the district force operates under the general control of the District Magistrate. What is missing is any body between the political executive and the force, and the first of the seven directions in Prakash Singh is precisely the creation of one.

Section 12, rules. The Inspector-General may, subject to the approval of the State Government, frame orders and rules on the organisation, classification and distribution of the force, the places where members shall reside, the services to be performed, inspection, arms and accoutrements, the collecting and communicating of intelligence, and all other matters he deems expedient for preventing abuse or neglect of duty and for rendering the force efficient.

Section 23, duties. Set out above. Note that the duty to prevent offences and public nuisances comes before the duty to detect and bring offenders to justice. The statute puts prevention first, and every commission of inquiry in Module IV finds that the force treated it as last.

Section 15: the collective punishment nobody teaches

Section 15, quartering of additional police in disturbed or dangerous districts, is the colonial state's own answer to collective violence, and it is still on the statute book.

Sub-section (1). The State Government may, by proclamation notified in the Official Gazette, declare that an area has been found to be in a disturbed or dangerous state, or that from the conduct of the inhabitants of the area, or of any class or section of them, it is expedient to increase the number of police.

Sub-section (2). The Inspector-General, or an officer authorised by the State Government, may then with the Government's sanction quarter additional police in the area.

Sub-section (3). The cost of the additional force is borne by the inhabitants of the area.

Sub-section (4). The Magistrate of the district apportions the cost among the liable inhabitants according to his judgment of their respective means.

Sub-section (5). The State Government may by order exempt any persons or any class or section of the inhabitants.

Sub-section (6). The proclamation must state the period for which it is to remain in force, and may be withdrawn or continued.

The Explanation brings in absentee landlords: "inhabitants" includes persons who occupy or hold land or other immovable property in the area, and landlords who collect rents direct from raiyats or occupiers there, notwithstanding that they do not actually reside in the area.

Why this section is worth a paragraph in any answer on remedies. Read sub-sections (1), (3) and (5) together. The State may declare an area disturbed because of the conduct of a class or section of its inhabitants, quarter police there at the inhabitants' expense, and then exempt a class or section from paying. That is a power to fine one community for the disorder of a district, and it survives in the law of 1861 without amendment. Whether such a power can survive articles 14 and 21 as they now stand is a question worth raising, and it is the kind of point that separates a first-class answer from a competent one.

Sections 30 and 31: processions

Section 30(1). The District Superintendent or Assistant District Superintendent may, as occasion requires, direct the conduct of all assemblies and processions on public roads, streets or thoroughfares, and prescribe the routes and the times.

Section 30(2). On being satisfied that persons intend to convene an assembly or form a procession which would, in the judgment of the Magistrate, if uncontrolled be likely to cause a breach of the peace, he may by general or special notice require an application for a licence.

Section 30(3). On application he may issue a licence naming the licensees and defining the conditions on which alone the assembly or procession is to be permitted, and no fee may be charged for the application or the grant.

Section 30(4). He may regulate the extent to which music may be used in the streets on the occasion of festivals and ceremonies.

Section 31. It is the duty of the police to keep order on public roads, streets, thoroughfares, ghats and landing places and at other places of public resort, and to prevent obstructions on the occasion of assemblies and processions, and in the neighbourhood of places of worship during the time of public worship.

Note that the licence under section 30 is not a general requirement. It arises only after the officer is satisfied of an intention to hold an assembly which the Magistrate judges likely, if uncontrolled, to cause a breach of the peace, and only after a notice requiring an application. The next chapter takes what the Constitution does to that scheme.

Worked example

A crowd surrounds a house at night and begins to break in. Inside are the householder and his family. A police party of four arrives at the gate.

The householder may use force in private defence of person and property. His right arises because there was no time to have recourse to the public authorities, and its extent is measured by the apprehension he reasonably entertains.

The police party is in an entirely different position. Under section 23 it is their duty to prevent the offence and to apprehend those they are authorised to apprehend. If the crowd is five or more with a common object, it is an unlawful assembly, and the ladder in sections 148 to 151 of the Suraksha Sanhita applies: command first, then civil force. Their authority comes from the section and is bounded by it.

And if they do nothing. The householder's right of private defence is unaffected, because the protection of the public authorities has in fact not been available to him. The officers' inaction is a breach of the duty in section 23, and if the house is burnt it is the failure that every commission of inquiry in Module IV describes.

What it does NOT mean

Private defence is not a right to punish. It ends when the apprehension ends. A crowd that has been driven off may not be pursued and beaten.

And the officer's authority is not a general licence to use force. Outside a statutory power, a police officer using force is in the same position as anybody else, and section 151 of the Suraksha Sanhita protects only acts done under sections 148 to 150 in good faith.

Section 15 of the Police Act is not obsolete merely because it is old. It is unamended and available, and an answer that assumes it has lapsed is wrong.

Quick revision

• Private defence: an exception, available because the State is absent, measured by the apprehension, and it ends with the threat.
• Police force: a duty of office under section 23, measured by the statute, and it cannot be waived.
• Section 3: superintendence in the State Government. Section 4: administration in the Inspector-General, and in the district under the general control of the District Magistrate.
• Section 12: the Inspector-General's rule-making power, expressly for preventing abuse or neglect of duty.
• Section 15: quartering additional police in a disturbed or dangerous area, at the inhabitants' cost, apportioned by the District Magistrate by means, with power to exempt a class. Absentee landlords included by the Explanation.
• Section 30: direction of assemblies and processions, prescribed routes and times, licensing on notice, no fee, and regulation of music.
• Section 31: the duty to keep order and prevent obstruction, including near places of worship during worship.

Test yourself

1. State the essential difference between private defence and a police officer's use of force. Private defence is an exception available because the protection of the public authorities cannot be had, and its extent is measured by the apprehension. A police officer's authority is a duty of office, his acts are not prima facie offences, and their limits are set by the statute conferring the power rather than by the threat.

2. Set out the scheme of section 15 of the Police Act 1861 and say why it is troubling. The State Government may proclaim an area disturbed or dangerous, or that the conduct of its inhabitants or of a class of them makes more police expedient; additional police are quartered there; the cost falls on the inhabitants, apportioned by the District Magistrate according to their means; and the Government may exempt a class or section. It is troubling because it permits a district to be policed at the expense of one community for the disorder of another, and it is unamended.

3. When does a licence become necessary under section 30? Only after the District Superintendent is satisfied that persons intend to convene an assembly or form a procession which, in the judgment of the Magistrate, would if uncontrolled be likely to cause a breach of the peace, and after he has required an application by general or special notice. No fee may be charged.

4. What do sections 3 and 4 together explain about Prakash Singh? That superintendence lies with the political executive and administration with the Inspector-General, with the district force under the general control of the District Magistrate, and that nothing stands between the political executive and the force. The first of the seven directions in Prakash Singh, a State Security Commission whose recommendations bind the Government, is the attempt to supply what those two sections leave out.