Manipur Government's water cannon and arrest of school students are illegal and go against Juvenile Justice Act 2015. Why?
- Part 1 -

Ningombam Bupenda Meitei *

Manipur Police using water cannon to disperse the protesting school students in Manipur on May 29 2016 :: Pix - Shankar Khangembam

The article is divided into the following sub-topics;
(1) Introduction: Why do I write it?
(2) What are the questions – ethical, students' future and legal?
(a) Ethical question
(b) Question on students' future
(c) Question on legality
(3) Manipur Government's use of water cannon against school students was illegal. Why?
(a) Supreme Court judgment on Ramlila Maidan incident case
(b) Arguments for (3) using 3(a)
(4) Manipur Government's police arrest of school students go against Juvenile Justice Act 2015. Why?
(a) Draft Rules of Juvenile Justice Act 2015
(b) Juvenile Justice Act 2015
(c) Arguments for 4 by using 4(a) and 4(b)
(5) Are children being used by adults? If so, then what can the state do?
(a) Section 83 of Juvenile Justice Act 2015
(b) Is prosecution not using Section 83 of the Act a sign of non-involvement of adults in using children?
(6) Conclusion: the future of Manipur lies in the state of being of the present school students of Manipur.

(1) Introduction: Why do I write it?

What have the school students done that they had to face forceful water from police's water cannon to disperse them? What have the school students done that they had to face the violent action of Manipur Police in a full day light? What have the school students done that they had to be treated so inhumanely by none other than the Home Minister of Manipur under whose headship the police department functions? What have the school students done that for whose protection and defence, neither the Chief Minister nor the Leader of the Opposition comes out publicly to safeguard the school students – who indeed are the future of Manipur and human civilization? What have the school students done that they found neither the lawyers nor Manipur Commission for Protection of Child Rights coming out to question the brutality and humiliation against the school students by the state forces which run under the Home Minister?

Imphal Times, in its news – "ILPS protest once again in frying pan" dated 29th May, 2016, reports about water cannon being used by Manipur Police against the school students who were protesting for their demand to release the two students who were arrested in connection with ILP protest.

I write this piece of mine not to justify any sort of violence or intent to inflict violence being used in any movement or protest, but I write here, as a former school teacher who taught physics and mathematics in Dehradun's reputed school, precisely to bring out genuine questions – pertaining to legality and ethics; and future of Manipur's school students.

I do admit that the photos, some of which were published and shared by Imphal Times, being carried out on social media on the use of water cannon against the school students have deeply pained my heart and discomfortingly captured my mind that I am left with no words to express the gravity of such intolerable anguish.

(2) What are the questions – ethical, students' future and legal?

(a) Ethical question

The question is not whether the school students ought to have been confined only to their classrooms or at home with their books; or whether to question what makes the school students so motivated when the university and college students hardly come out to participate in a movement which is heavily inspired by the presence of school students; or whether the school students themselves do not know that they are being merely used for an end whose result is remotely controllable by elements except students. But, the fundamental question is – what rights does the Home Minister have to allow the use of water cannon against the school students and the arrest of the two school students by Manipur Police and, what powers does the Education Minister not have to protect and safeguard the school students from the police's water cannon and its arrest? Under which rule/order of Government of Manipur or article of the Constitution of India, has the state of Manipur justified the use of water cannon against the school students and the police arrest, not even detention, of the school students?

If both the Home Minister and the Education Minister cannot protect the school students not only from water cannon but also from the police arrest, as the school students are to be treated as juveniles and not as adults, then the Chief Minister must intervene in order to safeguard the school students. If the Chief Minister is not either implicitly or explicitly initiating any move to give protection and ensure safeguard of the school students, then the Leader of the Opposition and other opposition political parties' leaders are not at all expected to remain mute and maintain a stoic silence towards the ongoing brutality and public humiliation of the school students, not privately but openly on the streets of the capital of the state. If the Opposition political parties also prefer to be quiet, then at the least the learned lawyers of Manipur or those lawyers, who are outside Manipur, from Manipur are presumed to have been deeply touched by the manner in which the law has been misused in the state, and therefore, the lawyers' inaction, if there is no proactive initiative from the legal fraternity, would be understood as an act of deliberately not upholding and fighting for the genuine rights of school students who are also juveniles. The silence of both the political and the legal worlds on the assault, use of water cannon by the police and the police arrest of the school students brings up the ethical values of the service rendered to mankind, and particularly for the school students and children.

(b) Question on students' future

The question is also not about silence but what happens after the arrest of two school students is to be looked into with caution. Arresting school students, the number of arrested school students may be two or more, is not only arresting them by the police, but such action in society has a deep potential to influence and stigmatise the minds of the young school going students, and that stigmatisation could have an adversarial impact in the upbringing of not only those directly affected students but also those who, though are not directly affected by the police arrest, are indirectly and remotely disturbed by the arrest of their fellow friends – who may not even study together with those arrested school students in a school. Any sort of dehumanising act to destroy the dignity of a school student or belittle the blossoming moral upright character of a student by any form of element, whether state actors or non-state actors, would not only tantamount to the destruction of an intellectual, social, psychological and overall human development of that student but also could, undoubtedly, lead to the degradation of society, at large, and that degrading society would certainly be not a healthy sign of a progressive human civilization. Manipur of 21st century cannot afford to be engulfed in a confusion of degrading human society.

(c) Question on legality

The question of legality - whether the use of water cannon by Manipur Police or any state actor to control the school students and the arrest of the two school students by the police is legal or not - is to be decided as per the rule of law. According to Juvenile Justice (Care and Protection of Children) Act, 2015 which comes into force from 15th January, 2016, the provisions of the Act must be adhered to while dealing with the school students – the juveniles who are involved in connection with ILPS demand in Manipur - and if an adherence to the Act is already taken into account and which must be the case also as the arrest of the two school students took place in May, 2016, which is very much after the Act comes into force, then there exists a legally valid argument to question the legality of the use of water cannon by Manipur Police and police arrest of the two school students. The question is – "Is the police arrest of school students and action of water cannon against school students illegal?" My legal argument, here, is in the affirmative, meaning that both the police arrest of school students and police action of using water cannon on school students are not only illegal but also go against the Juvenile Justice Act, 2015.

(3) Manipur Government's use of water cannon against school students was illegal. Why?

(a) Supreme Court judgment on Ramlila Maidan incident case

In the Hon'ble Supreme Court judgment of Suo Motu Writ Petition (Crl.) No. 122 Of 2011 - In Re: Ramlila Maidan Incident Dt.4/5.06.2011 V. Home Secretary, Union Of India & Ors, the Court has upheld the right to peaceful protest as a constitutional right. The Court observes: "Freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitation are the basic features of a democratic system. The people of a democratic country like ours have a right to raise their voice against the decisions and actions of the Government or even to express their resentment over the actions of the government on any subject of social or national importance. The Government has to respect, and in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of right to freedom of speech as understood in its comprehensive sense and not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions." It was also written in an article – 'Can The State Restrict A Citizen's Right To Protest?' – by Arun Jaitley, who today is Union Finance Minister of India, in Outlook India, dated 28th February, 2012.

(b) Arguments for (3) using 3(a)

The argument is, according to the judgment of the Court, it observes that "it is the abundant duty of the State not to throttle or frustrate exercise of such rights by exercising its executive or legislative powers and passing orders or taking action in that direction in the name of reasonable restrictions." But, what the State Government of Manipur, through its Home Department, has done is precisely to act in a direction using the shield of reasonable restrictions to throttle and frustrate the exercise of the rights of the people who were exercising freedom of speech, right to assemble and demonstrate by holding dharnas – which indeed are the basic features of a democratic system.

The Court has not even restricted such rights to "citizens" of the country but has expanded it to "people" of this democratic country. In the case of Manipur, the school students, who are juveniles, are also citizens of the country and therefore, they have every right to exercise all the rights of any citizen of India, as enshrined in the Constitution of India. The Court, in its judgment, also observes that "the Government has to respect, and in fact, encourage exercise of such rights. It is the abundant duty of the State to aid the exercise of right to freedom of speech as understood in its comprehensive sense."

Has the Government of Manipur - by using police's water cannon and police arrest of the two school students, who were also exercising their rights as citizens of this country - shown any form of respect or encouragement to the exercise of such rights of the school students? Has the Government of Manipur taken into account the meanings and boundary of the word "comprehensive sense" in identifying the issues, which according to the Government of Manipur could be an issue of law and order only, so that instead of having a dissected and myopic view of the issue the Government of Manipur could very well honour the intent of "comprehensive sense" being mentioned in the Apex Court judgment?

If the abundant duty of the State of Manipur is to aid the powers of the state police to aid in curbing the exercise of right to freedom of speech so that the control and stability of law and order in Manipur is to be given utmost primacy, then that very act of the State Government of Manipur goes against the judgment of the Court and also shows that the Government of Manipur is still yet to fully understand and implement the "comprehensive sense" mentioned in the judgment.

Then, there is a question – "Why do school students come out to protest?" The reply to this is also given in the Court judgment. The school students, who are not only juveniles and citizens but also are the people of this democratic country, according to the judgment, have "a right to raise their voice… to express their resentment over the actions of the government on any subject of social or national importance." The argument is – "Was the resentment nationally important?" The reply to this argument is: even if the resentment expressed by the school students is not of national importance, the resentment is deeply imbedded with social importance.

The argument to posit that their resentment is nationally important could also be established as they – the school students - are worried about the future of their own home state Manipur, and if the future of Manipur, which is very much a part of India, is in a potentially worrying situation, as it could be according to them, then the future of India, which comprises Manipur too, is also not impossible to be considered as free from any future worry and tension, and therefore, the national importance of their resentment is also difficult to be ruled out because the future of India also lies in the future of Manipur.

Even if the "national importance" fails to impress the argument, there is "social importance" as the judgment observes "social or national importance" and not "social and national importance", therefore by using the operational part of "or", there is an option to choose either "social importance" or "national importance".

Had there been "and" instead of "or", the argument could have been different, but since there is "or" the function of "or" allows the argument of "social importance" to bring forth to justify the resentment of the school students. It would be extremely complex to reject the "social importance" in this case. The other question is – "Why are the school students, instead of studying books and learning in their classrooms, participating in dharnas?"

The reply to this is also found in the judgment as it says that holding dharnas is one of the basic features of a democratic system. Nowhere in a democracy there is a legally approved and constitutionally accepted statement stating that school students are debarred from holding or participating in dharnas. Has the Parliament enacted Code of Conduct for the school students with regard to dharnas and peaceful demonstrations? Not yet, so far.

The question to be raised against the State of Manipur is – "Where is the criminality committed by the school students in holding dharnas in a democratic system of India's Manipur?" From these aforementioned arguments, the act of Manipur Government, through its police action of using water cannon and the police arrest of two school students, amounts to the dishonour and rejection of the Apex Court judgment, and therefore, both the police action and arrest shall be declared as illegal because the State of Manipur has miserably failed to uphold the judgment, passed on 23rd February, 2012 by the Supreme Court, even in 2016.

To be continued....