The law, judgments and precedents are unanimous: the police are empowered, can and must take urgent action to curb rioting. As former police chiefs tell us, the Delhi riots could have been stopped at many levels and stages. They were not. First published in Article-14.
New Delhi: The toll in the deadliest communal riots—doctors reported gunshot wounds, crushed skulls and torn genitals—in India’s capital since Independence is now up to 46 with hundreds injured, the majority of those Muslims.
Over three days from 24 February 2020, violent mobs shot, bludgeoned and stabbed people and burnt houses, shops, marketplaces and mosques. Journalists covering the riot were heckled, threatened and beaten.
Many Muslim and Hindu residents agreed on one characteristic: even as truckloads of unidentified masked men poured in, the Delhi police either stood by or went missing. One account said Hindus praised the police for saving lives, while Muslims said their calls for help went unanswered.
Did the Delhi police and the home ministry, which controls the city police, do enough? Could they have stopped the riots from escalating in northeast Delhi, one of India’s most densely populated districts, amongst the poorest of the capital’s districts and one with the largest Muslim population?
Yes, they could and should have, former police officers told Article-14. The result, according to Ashutosh Varhsney, professor of Political Science at Brown University, who studied communal violence in India during the 1990s, was a “pogrom”.
A number of guidelines and statutes governing police action during communal riots, including specific sections under the Code of Criminal Procedure (CrPC), various Supreme Court judgements and observations (here, here and here), the Delhi Police Manual and government guidelines (here, here and here) on communal violence, are unanimous: the police must take urgent and immediate action to prevent and curb the riots and minimise damage.
Here is what the police and government could and should have done.
1) Act On Intelligence, Deploy Forces
The manner in which clashes began on 24 February 2020 had all the makings of a riot: urban, evidence of being stoked by “outsiders”, and engineered. Experts said conditions for a riot were taking shape, and the Delhi Police were best placed to track the contours.
“The month-long anti-CAA (Citizenship Amendment Act) protests in northeast Delhi, however peaceful, were the reason why the police should have been extra vigilant,” said Yashovardhan Azad, former Central Information Commissioner and Indian Police Service (IPS) officer. “Sudden eruptions do occur but all communal disturbances, by and large, develop over a period of time. So, solid steps must be taken right in the beginning.”
Local police stations have demographic profiles, records of past violence and disputes, helping them identify riot-prone areas and foresee potential conflicts, according to the Delhi Police Manual. Regular patrolling, deployment of personnel, contingency plans and regular and independent intelligence gathering from sources cultivated within local communities are other commonly followed measures.
Ministry of Home Affairs (MHA) guidelines to district administrations on managing communal riots are clear about what the police must do with “prior knowledge”.
“With reference to the sensitive/hyper-sensitive areas as mentioned above, the district administration should anticipate possible development that can happen on certain occasions…so that escalated situation/riots etc. could be preempted/prevented,” say MHA guidelines.
2) Act Against Hate Speeches, Make Arrests
On the day Kapil Mishra of the Bharatiya Janata Party (BJP) delivered an incendiary speech, threatening to clear out anti-CAA protestors, once US President Donald Trump left on the night of 25 February after his two-day visit to India, the intelligence wing and special branch of the Delhi police sent six warnings to deploy security forces.
“Northeast Delhi has a history of communal tension,” Maxwell Pereira, former joint commissioner of Delhi Police and retired IPS officer, told Article-14. “The police needed to act at the first sign of provocation…The first sign of provocation in the area came from Kapil Mishra. The police had ample time till this provocation erupted into a riot on the third day thereafter.”
The police could have immediately identified and detained people accused of provocative speeches, such as Mishra, or before him Minister of State for Finance Anurag Thakur, who urged people at an election rally in January 2020 to “shoot the traitors”. Neither the local police, the commissioner of police, the Lieutenant General or the Home Minister “took cognizance because the hate speech was against a minority community”, said Pereira.
“Police should have acted when these speeches were being made,” Ajay Raj Sharma, Delhi Police Commissioner from 1999 to 2002 told The Wire. “A person should have recorded these speeches and action should have been taken after the speech is completed.”
Under the law, Delhi Police are required to also act against hate speech under provisions 153C and 505A of the CrPC, which call for prohibition of incitement to hatred and fear, alarm, or provocation of violence in certain cases. More provisions under the IPC such as section 153A, 295A and 298 penalise “promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony” and “deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs”.
“The hate speech was recorded which makes it an admissible evidence in a court,” said Prakash Singh, retired IPS officer, who in 2006 Prakash Singh versus Union of India case in the Supreme Court (SC), pioneered a set of rules—most were never implemented—for police reform. “Hate speeches prepared the ground for the Delhi riot and they shouldn’t have been ignored by the police.”
The Delhi High Court slammed the police inaction and directed it to file FIRs against people for making hate speeches but the government counsel representing the police sought more time from the court saying the time was not “conducive to file FIRs”.
“Basic principle of criminal law is, any delay in filing of FIR is suspect, questionable and that much more vulnerable in its efficacy,” Pereira says. “The solicitor only bought time for the partisan government to evolve a strategy to save the individuals (their own party leaders) concerned.”
3) Detain Local Goons, Stop Unlawful Assembly
“Preventing a riot is far more important than containing it,” read MHA guidelines on communal violence.
When violence appears imminent, the police usually detain “history-sheeters”, commonly listed in police surveillance records and databases. History-sheeters are repeat offenders, put on a list by police stations for regular monitoring.
The Unlawful Activities (Prevention Act) 1967 or UAPA, gives police additional powers to act against communal activities of organisations or individuals by declaring them “unlawful”, where “unlawful” refers to any action, spoken or written words, which support or incite violence, or disrupt public safety and law and order.
The police were too slow to respond, accused of either inaction or complicity. In images emerging out of Northeast Delhi, police watched as rioters gathered iron rods and bricks, drove into residential areas, and attacked places of work and worship. Emboldened by police inaction, mobs ran riot.
In New Delhi’s Guru Teg Bahadur Hospital, a 19-year-old man nearly lost his life because one of the rioters had pierced his skull with a drill. Nearly 21 died of gunshot injuries. A 26-year-old Intelligence Bureau officer was stabbed to death. In a video shot by a journalist, a group of agitated young men unleashed violence with sticks and bricks.
Each of these deaths and violent acts involved the use of harmful objects. These could have been prohibited by the police under various sections of the Indian Penal Code (IPC), CrPC, the UAPA and, specifically, section 30 of the Delhi Police Act, 1978, to prevent disorder and physical violence.
But, the rioters’ grip over Northeast Delhi’s public places of work, worship and community appeared tighter than that of the police, sparking criticism that the police were acting under political influence.
If implemented in time, the prohibition on arms and other dangerous objects could have minimised the death toll and the damage to public property.
Before the mobs arrived in riot-affected areas, various Police Acts and section 129 of the CrPC say that the police “may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse” or “may proceed to disperse such assembly by force” to maintain public order.
Instead, policemen in riot gear stood next to political leaders and watched them speak. “Not only were they (Delhi Police) mere bystanders, they acted partisanly when they did,” Pereira said.
4) File FIRs Against Mobs Destroying Public And Private Property
When violent mobs unleashed destruction, a man in Jafrabad fired shots at policemen, while masked men armed themselves with bricks and stones in the background. In the ensuing fury, a scrap market in neighboring Gokulpuri was charred to ashes; numerous shops, cars and residential buildings met similar fates.
This loss or destruction of public or private property is punishable under different sections of the IPC, more importantly, Sections 141 to 153, which specifically relate to communal violence and breach of communal peace, and under the Right of Private Defence (IPC sections 96 to 106).
“Most of the violent acts have been captured on camera. A video is a good enough start for the police to register FIRs,” said Singh, referring to visual evidence of a mosque being burned—verified by the fact checking website Alt News as genuine—a saffron flag hoisted atop another.
This was one of the offences relating to disturbance created towards the practice of any religious worship or assembly under IPC sections 295 to 298. Till the evening of 27 February, no more than 18 FIRs 18 had been filed and 108 people detained.
5) Act Tough, Impose Curfew On Day 1
No curfews were imposed until the third day of the Delhi riots. “If the situation is spinning out of control, violence should be nipped in the bud instead of letting it fester. Timing is critical here,” said Singh.
Experts also referred to the image problem of the police: they needed to be seen to be tough and unsparing of any curfew violations, dressed “ideally” in riot gear and look like they mean business.
“The police must not just act but also look like a determined, swift and effective force right in the beginning,” said Azad. “Delay in tough measures often gives the mobs the impression that the police are either weak or indecisive, and that emboldens them and demoralises the police.”
Over 6,000 police men and women were on duty during the riots, an inadequate number to control the streets of one of Delhi’s largest constituencies, Azad said. One eyewitness accounts found some police terrified of a rioting mob.
6) Act Against Police Who Support Rioters (Which Is Not Easy)
Many policemen were seen taking sides during the Delhi riots, according to many accounts, joining the chorus of Jai Shri Ram, pelted stones with mobs, and where they did not, watched rioters, as they screened people by religion. In one video recorded by a journalist, policemen beat a group of inured Muslim men (one later died), asking them to sing the national anthem. To some reporters covering the riots, rioters said the police were “on our side”.
“The police must remain absolutely impartial in the handling of communal disturbances. …. Competent and selected officers should be posted to sensitive areas having a history of communal disturbances,” says the Delhi Police Manual Chapter 13.
Siding with rioters or standing by amounts to dereliction of duty, subjecting them to administrative measures, such as suspension or dismissal from service and criminal charges under the IPC for engaging in violent acts.
“Section 197 of CrPC, in fact, says on the prosecution of public servants that they are protected against offences only when they commit them during the discharge of their official duties,” said Suroor Mandar, a Delhi High Court lawyer and member of the legal collective, Lawyers for Detainees. The law requires prior sanction from the government for prosecution of such public servants.
“When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction,” says Section 197 of the CrPC.
Mandar added that the liability of the police for failing to ensure peace and security must also be established.
7) Encourage Dialogue Between Communities Through Their Leaders Religious polarization was at the core of the Delhi riots: it showed in hate speeches, sloganeering rioters and actions of mobs. In communal-charged situations where neighbors turn against each other in the name of religion, the Delhi Police Manual prescribes involvement of peace committees to defuse tense situations through dialogue and mediation.
“Such provisions involve the local communities and the state government, which doesn’t govern the police machinery in Delhi but is entrusted with initiating peacekeeping measures, as part of its civil administration duties,” said Mandar.
Yet, representatives of the state government, run by the Aam Aadmi Party (AAP), were accused of staying away from the scene of rioting. Represented by seven members of the legislative assembly (MLAs) and one member of Parliament, Northeast Delhi saw only one visit by an MLA on the fourth day of the riots: BJP MLA Ajay Mahawar met the family of the slain IB officer.
No peace committees were involved and none met during or after the riots.