Dr M N Buch, Dean,
Centre for Governance and Political Studies, VIF
The Chambers Twenty-first Century Dictionary defines ‘preempt’ in the
following words:- “To do something ahead of someone else and so make
pointless an action they have planned”. Preemptive action is defined by
the same dictionary as an attack “effectively destroying the enemy’s
weapons before they can be used”. Preemptive action, therefore, is
likely to be resorted to in a warlike situation where it is necessary,
in fact vital, to destroy the enemy’s capacity to attack and thereby
ensure victory. Under what conditions would the police be allowed
preemptive action, which could include destruction of property and
causing the death of persons who can be identified as inimical to the
national interests?
One of the main differences between the military and the police is
that the armed forces have an identified enemy and their objective, in
the defence of the country, is to destroy the enemy’s offensive
capabilities and to inflict such casualties on the enemy as would make
it impossible for him to pose a threat to national security and the
territorial integrity of the country. The dictionary meaning of the
military is “the armed forces, maintained for the purpose of warfare”.
The police, on the other hand, is defined as “a body of men and women
employed by the government of a country to keep order, enforce the law,
prevent crime, etc”. The armed forces are generally required to act
against an external enemy, whereas the police is required to maintain
order within the country and, therefore, largely deals with Indian
citizens. Under section 23 of the Police Act, amongst the duties of a
police officer is to prevent the commission of offences and public
nuisances. In order that he may be able to perform his duty, Chapter
XI, Criminal Procedure Code (Cr.P.C.) authorises the police to take
preventive action under section 149 to ensure that cognisable offences
are not committed. Under section 151, Cr.P.C. the police has the
authority to arrest a person about whom it has information that he has a
design to commit a cognisable offence. The police, therefore, has the
legal authority to preempt the commission of a cognisable offence,
intervene and take action against any person about whom it has
information regarding a design to commit such an offence. To the extent
that it preempts an attack to commit an offence such preventive action
is also a form of preemptive action.
Coming to Chapter X, Cr.P.C. dealing with maintenance of public order
and tranquility, an Executive Magistrate who comes across an assembly
of five or more persons which intends to cause a disturbance of the
public peace and is thereby an unlawful assembly, can command it to
disperse and on its failure to do so can order the use of necessary
force, which may include the use of lethal force. This, too, is a form
of means of preempting any action by such assembly which could result in
break-down of law and order. In continuation of the same authority to
prevent disturbance of public peace, an Executive Magistrate may issue
an order under section 144, Cr.P.C. directing the person or persons to
abstain from certain acts and in order to enforce the order the
Magistrate can take such action as may be necessary. This precautionary
measure is also a form of preemption because it does result in
preventing an offence or disturbance of public peace from occurring.
The scheme of the law is that preventive action is not only
permissible, but is also mandated so that public order is maintained and
crime prevented. At one level, this mandate is similar to that of the
armed forces, that is, to ensure safety and security. But there are
differences also and in this regard, the Police Manual drawn up under
the Police Act, the Internal Defence and Internal Security Schemes which
state what is to be done if the country is facing either a major
internal security crisis or an external threat, lay down the procedures,
the duties, etc., of the police, the magistracy and the armed forces.
However, the doctrine so far as the police is concerned is the use of
minimum force, which means minimum effective force, when dealing with a
situation pertaining to law and order or general crime. So far as the
armed forces are concerned, when facing an enemy, which means an
external enemy, the maxim would be to use maximum effective force which
would inflict crippling casualties on the enemy while minimising one’s
own casualties. Thus, preventive or preemptive action by the police
would be measured and aimed at achieving the desired objective without
inflicting unnecessary damage or casualties. Preventive action by the
armed force would be aimed at causing the maximum damage and maximum
casualties to the enemy. The police is governed by the laws of India
which naturally place the citizen above everything else. The armed
forces are governed by the rules of war in which India comes first and
destruction of the enemy is the main objective. Obviously, the police
cannot adopt military tactics when dealing with a law and order
situation.
The use of force, including lethal force, is legitimate for the
police, but strictly as permitted by law. For example, under Chapter
V,Cr.P.C, when making an arrest, the police may use force if such an
arrest is resisted. Section 46, Cr.P.C. states how an arrest may be
made. However, whereas under section 46(2), a police officer or any
other person making an arrest may use force, this cannot extend to the
causing of death of the person to be arrested unless he is charged with
an offence punishable with death or with imprisonment for life. In that
case, of course, the arresting officer, in order to overpower the
accused, can cause death if the circumstance warrants it. A person who
voluntarily surrenders cannot be subjected to the use of force. Of
course, under the Geneva Convention, even in a war if an enemy
surrenders, he has to be treated with courtesy and he cannot be put to
death. Killing a surrendered enemy is an offence defined as a war
crime.
In the maintenance of public order under the directions of the
Executive Magistrate or a police officer, when dispersing an unlawful
assembly, both civil and military force can be used. Even when using
military force to disperse an unlawful assembly, the armed forces will
act on the requisition of an Executive Magistrate, but in doing so, “the
commanding officer shall use as little force and do as little injury to
person and property as may be consistent with dispersing the assembly
and arrest and detaining such person”. The use of minimum force,
therefore, is the doctrine for both the police and the armed forces when
dealing with assemblies of citizens which may have become unlawful.
The action is preventive, but the preemptive portion of it is subject to
the principle of use of minimum force.
Unfortunately in India, the choice is not always between civil action
and military action because there are shades and nuances of crimes and
criminals which one does not find in many other democratic countries
where there is the rule of law. Britain is one such a country, but
here, too, when faced with an insurgency situation in Ulster, a section
of the British police force, designated as the Royal Ulster Constabulary
(RUC), was organised as an armed police with paramilitary functions.
Even though the principle of use of minimum force continued to apply,
the RUC carried out preemptive strikes against the terrorist outfit,
the Irish Republican Army (IRA) and where it came to an armed encounter,
the RUC did not hesitate to use its weapons to neutralise or even
liquidate the militants. Whereas the rules of war did not apply, nor did
the normal doctrine of policing when faced with a situation of armed
conflict. In India, the police is faced with a whole series of
situations in which the civil affairs exist side by side with crimes
like dacoity in which armed gangs of five or more people come together
in order to loot people and do not hesitate to use their fire arms,
militancy which has a political objective, outright insurgency as in
Nagaland, Manipur, etc., separatism and terrorism as in Kashmir and a
state of near civil war as is found in the Naxalite affected areas. In
the last named areas, we have whole districts where civil government has
virtually ceased to exist and armed police units have to be deployed in
a warlike situation. The Naxalites use ambush as a favourite tactic,
they use mines and improvised explosive devices to cause blasts which
blow up vehicles and kill or injure large numbers of policemen, they
have automatic weapons, they are experts in use of terrain and guerilla
tactics and they inflict heavy casualties on the police. In such a
situation the laws, rules and procedures which govern the civil police
just cannot apply. Whereas in a normal situation the right of private
defence is valid only if there is an imminent danger to life and
property, in an insurgency type of situation, the right of private
defence extends to attacking the insurgents before they attack the
security forces. This is preemptive action and where it is not
undertaken, ambushes can occur such as the one which killed 76 CRPF
personnel in one strike and another which virtually decimated the
Congress leadership in Chhattisgarh. Here the tracking down of
Naxalites, finding their hideouts and then attacking them in order to
neutralise groups of militants is absolutely legitimate, viable and
valid. The benchmark governing police action in a normal situation will
not apply here. When dealing with militants and Naxalites whose
objective is to weaken the Indian State by targeting security forces and
government officials, we have to lay down different methods, though
always within the confines of law.
There is another area where terrorists, many of them supported by
government and nongovernment agencies in Pakistan, commit acts of terror
in India. The 1993 bomb blasts in Mumbai, the 2008 attack, again in
Mumbai, bomb blasts at different times in Delhi, the German Bakery case
in Pune, to quote just a few examples, are terrorist acts in which the
objective is to spread fear in India. How does one deal with such
cases? A terrorist submerges himself in society and at the appropriate
time when the risk of detection is minimum, he strikes. If he has
struck, nothing can be done to stop this and, therefore, it is only by
intelligence gatherings that one can get an inkling of new terrorist
strikes which might have been planned. Here the only way to stop the
terrorist is to strike him before he can act. One does not want to
comment on the Sohrabuddin case and the Ishrat Jahan case because the
courts have taken cognisance in both cases, but one cannot rule out the
possibility of the Gujarat Police having made preemptive strikes which
seem to have paid off because Gujarat is relatively free of terrorist
activity.
This is really a grey area. If R&AW were to arrange a bomb blast
in Karachi which buries Dawood Ibrahim under the rubble of his own
house, it would be hailed as a successful preemptive strike. The same
action against a known terrorist or criminal in Mumbai or Ahmedabad
might invite a charge of murder against the Maharashtra or Gujarat
Police. Where does one draw the line? Let us at least be aware of the
fact that this nation is under attack by terrorist organisations based
in Pakistan, there is real fear of possible militant activity which
might erupt if Afghanistan goes the Taliban way, there is insurgency of
the Naxalite kind which has seriously undermined the authority of
government in large parts of India and there is a degree of extremism,
which threatens public order and public safety, all of which need to be
countered. If we accept such activity to be anti terrorist, then there
will be an element of preemptive action.
We have to develop the capability of distinguishing between
preventive action under normal circumstances which is perfectly legal,
preemptive action under certain other circumstances which may be on the
border line but still compatible with civil norms and yet another set of
actions in which the war is carried proactively to those elements which
are trying to destroy our national fabric. Here the rules of
engagement will have to be different in order that the security forces,
operating under great handicaps, would be given a fair chance to take on
and neutralise those who are trying to damage India. In other words,
we would have to draw up fresh rules of engagement which permit
preemptive strikes, avoid civilian casualties so that innocents are not
caught in the cross fire and yet effectively neutralise anti national
forces. The drawing up of the new guidelines is the real challenge for
the Ministry of Home Affairs, the Intelligence Bureau, the Research
& Analysis Wing and the National Security Adviser.
