Police Brutality: A Virus Plaguing Law & Order
In the June of 2020, United States of America rose in an uproar against the institutionalized brutality of police officers against the African American race. Much like USA, India has been a constant victim of police brutality, from the Jallianwala Bagh Massacre (1919), Jamia Millia Islamia Attack (2019) to the very recent unfortunate custodial deaths of P Jayaraj and J Fenix (2020), and thousands more. The government and judiciary turning a blind eye towards holding such police officers accountable under the safety blanket of Section 197 of CrPC, 1973, has also become a constant menace. Unlimited power and unfettered authority has provided great impetus to police officers to violently abuse the law as well as the citizens they are supposed to protect.
OVERVIEW OF THE LEGAL FRAMEWORK
The probe behind such abuse and misuse of power and authority by police officers needs to begin with the analysis of the instruments that facilitate this abuse. The major instrument that facilitates it is the legislation in action which is inherently vague in nature providing plenty of loop holes and unrestricted freedom to the police under the veil of providing “discretion”.
For example, Section 129 of CrPC confers upon police officers the use of necessary “civil force” to disperse an unlawful assembly, however, no checks on this power has been ensured in the legislation to prevent such force to become abusive and beyond what was required. Police Manuals of the respective states provides for the extent of the force that may be used however, these manuals are hardly ever implemented or abided by.
Although Section 130(3) CrPC prescribes that use of armed forces to disperse assembly requires personnel to use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such. In order to disperse the students protesting outside the Jamia Millia Islamia University, thousands of students were attacked, the students not protesting inside the campus were subjected to tear gas and property of the university was vandalized by the police officers. Till date, no FIR has been registered against these officers.
FIRs and criminal complaints can be filed against police personnel; however, there is no mechanism of independent investigation which is necessary and required as police officers often decline to register FIRs against their colleagues. Section 197 of CrPC provides a safeguard to police officers in terms of qualified immunity where prior sanction is required from the concerned government before filing an FIR. In majority cases of police brutality, the actions are performed within their official capacity, however those actions arise from the abuse of the powers assigned to the police officers. Further, Police being a state subject, all the enactments pertaining to the police officers are done by the states which are still based on the Police Act, 1861 which was a Victorian era legislation where police accountability and discipline were not a priority or a matter of concern.
MEASURES TAKEN TO PREVENT SUCH ABUSE OF POWER
With the rising cases of excessive force used by the police and abusive of power facilitating it, the central government as well as the judiciary took several steps and measures to make sure such misconduct of the police personnel towards the citizens is discontinued and the officers still engaging in usage of abusive force are disciplined.
1. The Central Government issued a Model Code of Conduct for the police in 1985. Within the code, section 4 prescribes that in order to maintain law and order in the country, the police should use methods of persuasion, advice and warning. When the application of force becomes inevitable, only the irreducible minimum of force required in the circumstances should be used.
2. Prevention of Torture Bill, 2010 was introduced to ratify UN Convention against Torture, 1975 to which India is a signatory. The bill was directed towards ending Custodial Torture. The bill was passed in Lok Sabha in 2010 but later lapsed with the change in the government in 2014.
3. Precis on Crowd Control was issued by the Government in 2016 which restricts the use of firearms in exceptional and extreme circumstances only where there is an imminent and extreme danger to life and property.
The government’s efforts towards eradicating the issue at hand were far below satisfactory and were limited to be signatories to treaties and conventions as well as enacting legislations which made no real difference in preventing police brutality. They served as mere guidelines which were never followed and are not followed till today with no consequences.
Due to the lack of a significant step taken by the central and state governments that would lead to a reform in the operation of police and prevent such abuse of power, Judiciary stepped up several times to deliver landmark judgements that could lead to a very prominent and essential change.
Supreme Court enhanced the importance of violation of Article 21 by the police personnel when such indiscriminate and abusive force is exercised upon citizens. Article 21 of the Indian Constitution states that no person shall be deprived of his life or personal liberty except according to a procedure established by law. The article is considered to the procedural Magna Carta which is protective of life and liberty. The Supreme Court in the case of Maneka Gandhi v. Union of India[i] had highlighted the distinction between maintaining public order and protecting fundamental rights a delicate, however also prescribed that the right to live with human dignity guaranteed under Article 21 of our Constitution is quintessential to our existence.
The Supreme Court in the case of Francis Coralie Mullin v. Union of India[ii] held that any form of torture or cruel treatment is offensive to human dignity and prohibited under Article 21 unless such treatment is prescribed by law. However, a law that prescribes such treatment itself can never stand the test of reasonability and non-arbitrariness.
In judgments such as Rudal Shah v. State of Bihar[iii] and Bhim Singh v. State of Rajasthan[iv] the court have held the state liable and has gone on length to elaborate that police misconduct, abuse of power and granted pecuniary compensations for violations of fundamental rights by the police.
Further, the Supreme Court to ensure accountability of such police officers held in the case of Smt. Nilabati Behera Alias Lalit v. State of Orissa & Ors[v] that the doctrine of sovereign immunity cannot be used as a defence under public law in cases of fundamental rights violations.
In the landmark case of Prakash Singh v. Union of India[vi], the Supreme Court for the first time issued concrete and binding guidelines and directives to the state governments. The court directed state governments to establish a Police Complaint Authority (PCA) at state and district levels to address complaints of police misconduct. The recommendations of these authorities against a police officer will be binding.
The Supreme Court also recognised the illegality of custodial torture and death and how it strikes a blow at the rule of law and order in the case of DK Basu v. State of West Bengal.[vii]
The Supreme Court in the case of People’s Union for Civil Liberties v. Union of India[viii] held that killing people in orchestrated encounters clear violation of right to life guaranteed by Article 21 of the Constitution of India and defence of sovereign immunity does not apply in such cases.
CONSEQUENCES OF SUCH MEASURES
Much to the disappointment of the Supreme Court there were little to no actual reforms and changes that took place due to state government’s lack of interest and motivation to make such changes.
Starting with the binding directions given in the Prakash Singh Judgment[ix] were blatantly ignored to a large extent the governments also disregarded and diluted the court’s scheme in terms of composition, selection process and functioning of the Police Complaint Authorities. The Justice Thomas Committee appointed by the Supreme Court for monitoring compliance with the Prakash Singh judgement expressed dismay in its 2010 report over the total indifference exhibited by the states.
The number of cases of police brutality and deaths and a result of the same has also been consistently increasing due to lack of any effort to curb such behaviour. As per the 2018 National Crime Records Bureau statistics, out of the 89 cases registered against police officers for human rights violation, only 25 officials were awarded charge sheets with zero conviction rates.The National Human Rights Commission (NHRC) recorded a staggering 1,674 cases of custodial deaths in 334 days (11 months) between April 2017 and February 2018, which implies over five deaths in custody per day. Unfortunately, most of the deaths are registered as suicides or deaths due to medical conditions.
Such behaviour by police personnel continues with no one to reprimand them. No superior is going to question them and no politician is going to call them for an explanation. Cases such as the Jamia Millia Islamia Attack or the violent death of P Jayaraj and J Fenix in police custody send shock to the citizens because they show the possible abusiveness of the authority of the police which leads to severe injury and death of innocent.
Police encounters also continue to be performed by orchestrating them in order for them to look authentic whereas they are just another way for the police to take justice in their hands without following the due process of law. The principle of innocent until guilty is slowly withering as police officials continue to provide justice according to what justice means to them. Hyderabad Gang Rape case reached a similar conclusion as all the suspects were killed in a police encounter.
POLICE BRUTALITY: THE ROAD AHEAD
According to the Status of Policing Report, 2019 after interviewing really 12000 police personnel from 21 states, the most common response received was how the police is justified in being violent against criminals and how there is nothing wrong is beating criminals to extract confessions. A Human Rights Watch Report from 2016 on India’s failure to end police custodial killings notes that police blame most of the deaths on suicide, illness, or natural causes, however, in many such cases, family members allege that the deaths were the result of torture.
One major factor that plays in this attitude of the police personnel is how this behaviour is encouraged and shown as a sign of bravery in the Indian Cinema. And if this behaviour is encouraged and promoted, it leads to one wanting to adopt such an image and move towards complying with such behaviour. The entertainment industry also has to build a healthier image of the police which follows the course of law instead of taking justice in its hand.
It is important that police personnel are trained in more modern crime solving methods which do not include such barbaric practices. It is also high time that the states take accountability for the actions of their police agency and create strict rules to prevent such behaviour from taking place. India should also take notes from other countries which have succeeded to prevent such excessive use of force by the police. For example, in Northern Ireland human rights experts are invited in control rooms to assess and advice proportionality and necessity of police force while dispersing unlawful assemblies.
Madras High Court while discussing the recent death of P Jayaraj and J Fenix has highlighted that such violent behaviour by the police officials also propagates from the immense stress and mental pressure that rests upon them due to the lack of manpower in the agency. State governments have to allocate a higher budget to the police agency to recruit more personnel to shift this workload more evenly as well as conduct therapy sessions for these police officers by therapists or retired police officers who could help them navigate this stress and not have outburst of it while on duty that hurt innocent citizens.
[i] Maneka Gandhi v. Union of India , 1978 SCR (2) 621 [ii] Francis Coralie Mullin v. Union of India , 1981 SCR (2) 516 [iii] Rudal Shah v. State of Bihar, 1983 AIR SC 1086 [iv] Bhim Singh v. State of Rajasthan, 1992 (3) WLC 109 [v] Smt. Nilabati Behera Alias Lalit v. State of Orissa & Ors, 1993 SCR (2) 581 [vi] Prakash Singh v. Union of India , 2006 (8) SCC 1 [vii] DK Basu v. State of West Bengal, 1997 (1) SCC 416
[viii] People’s Union for Civil Liberties v. Union of India, AIR 1997 SC 568
[ix] Prakash Singh v. Union of India, 2006 (8) SCC 1
ABOUT THE AUTHOR This blog has been authored by Saumya Bazaz who is a 2nd Year B.A., LL.B. (Hons.) student at Gujarat National Law University, Gandhinagar.
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