Can Police Lathi Charge Protesters Legally?

New Delhi, July 21: Parliament's Monsoon Session was disrupted for a second consecutive day on Tuesday, with both Houses adjourned within minutes of convening over the police action against protesters during Monday's Cockroach Janta Party-led march in the national capital. In the Rajya Sabha, Leader of the House Mallikarjun Kharge had scarcely begun addressing the lathi charge and tear gas shelling used against demonstrating students before the House descended into disorder and was adjourned till noon.

In the Lok Sabha, Leader of the Opposition Rahul Gandhi led a delegation of Opposition MPs to Speaker Om Birla, seeking a discussion on what he termed the "brutality unleashed on students," and later told reporters that the Speaker had said such a discussion required government clearance. Congress MP Manickam Tagore noted that the Opposition had attempted to raise the matter during Question Hour and been refused, and pressed for the Union Home Minister to respond on the floor of the House. The government's public position, articulated by Kiren Rijiju after the NDA's parliamentary party meeting, addressed the underlying examination controversy that precipitated the protest rather than the conduct of the police operation itself.

The proximate cause of Monday's crackdown was a march by the Cockroach Janta Party, organised around grievances over examination mismanagement, that security forces met with tear gas and lathi charge, resulting in reports of dozens of injuries, some serious. That the lawfulness of this police response has now become the central obstruction to parliamentary business is not incidental. Indian law's treatment of lathi charge has always been more circumscribed than its frequent deployment suggests, and the doctrinal gap between the two is precisely what the Opposition's demand for accountability puts to the test.

Neither the Code of Criminal Procedure nor the Indian Penal Code contains the term "lathi charge." What the statute actually authorises is the dispersal of an "unlawful assembly," defined under Section 141 of the IPC as a gathering of five or more persons whose common object falls within enumerated categories: overawing the government through criminal force, resisting the execution of law, committing mischief or criminal trespass, or compelling a person to act against legal right. A march of students towards Parliament to protest examination grievances does not, by virtue of its size or destination alone, satisfy this definition. The Delhi Police's characterisation of the protest as having "resorted to large-scale violence" would need independent factual substantiation before the assembly could properly be termed unlawful, a threshold question that remains unresolved and contested between the police and the protest's organisers.

Even where an assembly is validly classified as unlawful, the procedural safeguards governing its dispersal are exacting rather than permissive. Section 129 of the CrPC confines the power to order dispersal to an executive magistrate or the officer in charge of a police station, while Section 144 permits a District Magistrate to direct such action only upon a finding that it will prevent obstruction, injury, danger to life, or disturbance of public tranquillity. Courts have consistently read a sequential test into these provisions: first, an unlawful assembly with violent intent; second, an order to disperse; and third, a refusal to comply with that order, with force becoming permissible only after this sequence is exhausted.

The Punjab and Haryana High Court set out this test in Karam Singh v. Hardayal Singh, and the Delhi High Court extended it in Police Commissioner v. Yash Pal Sharma, holding that even where force is authorised, only force that is "reasonable" survives scrutiny, a constraint the Court tied directly to the fundamental right to freedom of speech and expression under Article 19(1)(a) and (b). Where a lathi charge and tear gas action proceeds without a documented warning and refusal to disperse — a sequence that reporting on Monday's protest does not establish, the action sits uneasily against this settled framework, regardless of the operational justification offered after the fact.

The Supreme Court's fullest treatment of these limits came in Anita Thakur v. Government of Jammu and Kashmir, a case in which the petitioners had themselves protested violently and pelted stones at police, and were nonetheless awarded compensation because the police continued using force after the crowd had already been brought under control. The judgment's significance lies in the fact that it did not turn on the protesters' peacefulness, they had not been peaceful, but on the principle that the use of force, even once justified, remains bound by a continuing requirement of proportionality that does not lapse simply because its initial invocation was lawful. The Court held that excessive force constitutes a violation of human rights and dignity irrespective of the crowd's own conduct, and attributed recurring police excesses to inadequate training in handling challenges to authority. That reasoning bears directly on the pattern now described in Parliament: not merely a contested initial classification of Monday's assembly as unlawful, but reported injuries, including, per some accounts, a child struck during the operation, that would be difficult to reconcile with any standard of minimum necessary force, the same standard the Kerala Police Manual codifies in directing that force avoid the head and other vulnerable parts of the body.

International standards reinforce rather than depart from this domestic doctrine. The UN's 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials direct that force against unlawful but non-violent assemblies be avoided entirely, or restricted to the minimum extent necessary where avoidance is impracticable, a standard squarely implicated if the protesters' account of a peaceful march, rather than the police's account of violent disorder, is ultimately borne out.

None of this resolves, as a matter of concluded law, whether Monday's specific police action was lawful; that determination turns on facts that remain contested and on findings no court has yet made. But it clarifies why the Opposition's demand for a parliamentary discussion, and its insistence that the Home Minister answer for the operation, cannot be dismissed as a political manoeuvre unconnected to the underlying examination dispute.

The statutory and judicial framework governing lathi charge has consistently demanded sequential justification, unlawful assembly, prior warning, proportionate response, that courts have found absent in episode after episode, from the 2019 anti-CAA protests to the 2021 Karnal lathi charge that preceded a farmer's death. Whether the Monsoon Session's repeated adjournments culminate in an actual accounting of Monday's events, whether through a ministerial statement, an independent inquiry, or eventual judicial scrutiny, will determine whether this episode joins that unbroken record or becomes the point at which Parliament finally compelled a specific, fact-based justification for force used against a specific set of protesters.