By: AARUSHI KAPOOR and SSANJNNA GUPTA
Aarushi Kapoor is a third year student of Hidayatullah National Law University, Raipur. She has interests in Humanitarian law, International Laws and Corporate laws.
Ssanjnna Gupta is a third year student of Hidayatullah National Law University, Raipur. She has interests in International Law, Constitutional Law and Alternative Dispute Resolution.
Largest unplanned national lockdown
India, a country with the second largest population in the world, imposed a nation-wide lockdown to cure the coronavirus among its citizens.[1] However, such a last-minute imposition of a lockdown was entirely unplanned. This decision has hit hard upon the lives of migrant workers who have realized the indifference of the authorities. The lack of responsiveness led to a situation wherein these migrant workers had to undertake a journey on foot to reach their hometowns from the bigger cities they were trapped in.[2] They struggled for basic needs like food, shelter, and employment and such a deprivation has resulted in the death of more than 400 migrant workers up to this point.[3] Some have died because of hunger while some in road accidents. As a consequence, a protest movement has developed within the migrant worker community.[4]
Criminal act presupposes Criminal intent
While the Government plans to build a self-reliant nation, at the same time it seems equally reluctant to exhaust its resources upon the force which drives the nation i.e. labour-force.[5] The rift has widened to the extent that these laborers have come down upon pelting stones at the police. There have been reported instances of stone pelting by the migrant workers at the police and passers-by. Supposed examples of this include a busy road connecting IIM-Ahmedabad with vastrapur, the Palam Vihar of Gurugram, and the premises of IIT Hyderabad in Telangana.[6] In response, the State Governments are resorting to various penal provisions under the Indian Penal Code (“IPC”).[7] Section 307 is one of the various sections which is being invoked to try such alleged offenses as attempted murder. [8]
To determine whether the Government’s response is legally justified, it is important to question whether these alleged instances of stone pelting by the migrants legally qualifies as attempted-murder in any circumstance.For conviction under Section 307, all the ingredients of murder except death have to be proven.[9] The mens rea required for attempted murder is the same as that of murder under Section 300.[10] The burden of proof falls on the prosecution to prove that the act was done with the intention or knowledge of causing death or such bodily injury that the accused knew was likely to cause the death of that person,[11] or that the act done is so imminently dangerous that in all probability it will result in death.[12]
Given these legislative requirements, prosecuting these migrant workers under Section 307 for the act of stone is unjust.t The knowledge requirement in Section 300 (from which Section 307 is derived) is absent in this case because it requires a prior knowledge of some peculiar physical condition” of the victim.[13] One cannot prudently expect the migrant workers who needed to reach their hometowns to have gathered knowledge about the physical conditions of the policemen whom they attacked in the heat of the moment. Furthermore, it is noteworthy that any prosecution under Section 307 requires a twofold probe. In order for the act of stone pelting to amount to attempted to murder, has to satisfy this probe, which requires that it should be intentional and grievous enough to cause death. The act of stone pelting in the first instance did not injure the policemen in such a way that it would inevitably and in all circumstances cause death. Even for once in a distant interpretation, the stone pelting might be considered as either likely to cause death, however, the very act as illustrated in the present scenario can never be intentional. It is devoid of mala-fides.
Every criminal act requires the element of mens rea.[14] The migrant workers never had the intention to murder the policemen. Pelting stones at the police was a reaction to the discontentment they have been going through to survive the mismanagement of the government during this pandemic.[15] The migrant workers preferred making the stone a symbol of powerless anger.[16]
In consonance with this interpretation there has been a recent order by the Bombay High Court in Karan Nair v. State of Maharashtra wherein a man who attacked police for being asked to wear a mask was released due to absence of any criminal intention to attack the policemen.[17] Furthermore, in Shabana M Ron v. State of Kerala, the Kerala High Court was once again granted bail to some of the stone pelters owing to their distressed psychology in the testing times of the pandemic. [18]
Hence, it becomes essential to ascertain the presence of a psychological and criminal intent in the mind of the accused. The migrant workers did not carry any weapons with them except for stones.[19] Although it is wrong to stone pelt police and bystanders, the protesters demanded accountability of the Government with respect to the discharge of their welfare duties; they did not intend to commit murder.[20] Such an act fails to have a criminal intent required for deliberately propelling unruly elements in the State.[21]
Exploring the Alternatives
Hence, instead of charging these individuals with the serious offences like Section 307, conviction under Section 270 IPC that is “malignant act likely to spread infection of disease dangerous to life” is more appropriate.[22] Those who throw stones at police and civilians can also be successfully convicted under Section 188 which punishes on account of disobedience of orders promulgated by the public servants tending to risk human life.[23]
Conclusion
India is a party to the International Covenant on Civil and Political Rights (“ICCPR”) and is obligated to adhere to the principles of the Convention.[24] Article 10 of ICCPR mandates to treat each individual with the requisite dignity.[25] The lockdown was an immediate measure taken up by the Government to curb the spread of COVID-19 but the inefficiencies and the consequences which followed due to lack national planning has affected the migrant workers financially and emotionally.[26] There is no doubt that the stone pelting by the distressed migrant workers upon the police led to a breach of law and order. The question which brims is that was it appropriate to legally charge the migrant workers with the heinous offences like murder? Charging these migrants with attempted murder was not legally justified—especially when other, less extreme charges, would have been more appropriate for the circumstances.
[1] Ramesh Luthra, Coronavirus India Lockdown Day, The Hindu (2020), https://www.thehindu.com/news/national/coronavirus-india-lockdown-august-27-2020-live-updates/article32452598.ece
[2] Madhunika Iyer, Migration in India and the Impact of the Lockdown on Migrants, The PRS India (2020), https://www.prsindia.org/theprsblog/migration-india-and-impact-lockdown-migrants
[3] Jawgar Sircar, A Long Look at Exactly Why and How India Failed its Migrant Workers, The Wire (2020), https://thewire.in/labour/lockdown-migrant-workers-policy-analysis
[4] Sundaram Srinisvasan, Hundreds of Migrant Workers Protest, The Times of India (2020), https://timesofindia.indiatimes.com/india/mangaluru-hundreds-of-migrant-workers-protest-at-railway-station/articleshow/75624186.cms
[5] Adarsh Srivastava, Protest or Rebel, The Tribune (2020), https://www.tribuneindia.com/news/delhi/50-migrant-workers-booked-after-clashes-with-haryana-police-near-delhi-gurugram-border-87398
[6] Ibid.
[7] M.P. Nathanael, Licensed to beat, abuse and kill, The Hindu (2020), https://www.thehindu.com/opinion/op-ed/licensed-to-beat-abuse-and-kill/article31609626.ece
[8] Geeta Pandey, Desperate Migrant Workers trapped in Lockdown, The BBC (2020), https://www.bbc.com/news/world-asia-india-52360757
[9] Siddarth Bhatia, Why Indian Don’t Come Out on the Streets Against Regular Police Brutality, The Wire (2020), https://thewire.in/rights/george-floyd-protests-india-police-brutality
[10] Ashmita Nandy, Why migrant workers long for home, The Quint (2020), https://www.thequint.com/videos/coronavirus-lockdown-why-are-surat-migrant-labourers-protesting-to-go-home
[11] Saba, To attract S. 307 IPC, there must be intention or knowledge on part of accused, The SCC Online Blog (2020), https://www.scconline.com/blog/post/2017/12/27/attract-s-307-ipc-must-intention-knowledge-part-accused/
[12] Ibid.
[13] Yogesh v State of Maharashtra (2019) 5 SCC OnLine Bom 1039.
[14] Sarosh Bana, The Government is not interested in stopping torture by the police, The National Herald (2020), https://www.nationalheraldindia.com/opinion/the-government-is-not-interested-in-stopping-torture-by-the-police
[15] Joe Wallen, Protests break out in India as Migrant workers stranded and starving far from home, The Telegraph (2020), https://www.telegraph.co.uk/news/2020/04/17/protests-break-india-migrant-workers-stranded-starving-far-home/
[16] Ibid.
[17] Karan Nair v State of Maharashtra, (2020) 8 SCC 457, ¶ 81.
[18] Shabana M Ron v State of Kerala, (2020) 7 SCC 859, ¶ 14.
[19] Lockdown: Migrant Workers clash with Police in Gujarat, The Economic Times (2020), https://economictimes.indiatimes.com/news/politics-and-nation/migrant-workers-pelt-stones-at-police-in-surat/articleshow/75533181.cms
[20] Nathulal v State of Maharashtra, (1966) 4 SCC 43.
[21] State Of Gujarat v Chauhan Mulsinh Cheharsinh, (2004) 7 SCC OnLineGuj 4847
[22] Tarunabh Khaitan, What Courts Say, What Courts Do, UK Constitutional Law Association ( 2014), https://ukconstitutionallaw.org/2014/04/24/tarunabh-khaitan-nalsa-v-union-of-india-what-courts-say-what-courts-do/
[23] Ibid.
[24] “General Comment No. 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law”. UN OHCHR. 13 April 1984. Retrieved 10 October 2010.
[25] International Federation for Human Rights, India: Government fails to address key human rights concerns during UN review, 21 September 2017, available at: https://www.refworld.org/docid/59c8e62b4.html %5Baccessed 15 September 2020]
[26] Ibid.
