The debate and outrage over the recent police brutality incident in the United States has significantly broken the internet and has captured the attention of people all around the world. Sadly, India has a rich history of police brutality on its own. Instances of police bias, unfair treatment and brutality, illegal detention, as well as selective victimization of certain communities occur on a day-to-day basis. However, most of these incidents go nameless and the outrage against these methods is minimal. So, what will it take for Indians to demand proper police reform and how is this reoccurring maladministration violating our human rights?
The police force as a whole came into existence in our country through the British influenced legislation called the Police Act, 1861.
Police brutality in India commenced even before the pre-independence period while India was under the British rule. For instance, during the Jallianwalla Bagh massacre in 1919, more than 400 people were killed due to Police misconduct and over 1500 people were injured. Decades later, custodial torture and police violence are still trending in India.
Post-Independence period several recommendations were initiated with a view to curb what is lacking in the administration of the police. In the 2006 Supreme Court Landmark judgement of Prakash Singh v Union of India, the court aimed to establish an effective framework against police misconduct. The court made several directions including the formation of Police Complaints Authorities at the state and district levels, and declared that the decisions set out by these authorities would be binding on the wrongdoer. However, the weak implementation of the judgement was soon discovered. The Justice Thomas Committee appointed by the Supreme Court for monitoring the compliance revealed that that no state has fully complied with the supreme court’s order and the government has blatantly ignored and rejected the overall functioning of the PCA’s.
Moreover, the failure of the Prevention of Torture Bill, 2010 is another fruitless outcome of the government’s attempt to minimize torture. The bill sought to ratify the UN Convention against Torture of 1975 to which India is a signatory of. The bill not only provided a narrow and constricted meaning of “Torture”, but makes no mentions of any compensatory provisions towards the victims and also lacks provisions regarding investigation into such complaints.
Majority of the victims of police torture belong to the poor and marginalised sections of the society as they are often easy targets due to their low socio-economic status. In India, there is a pattern that has been created to glorify the police personnel as the sole “punisher” or “judge” which has influenced the minds of the people as well as the police officials.
Right from the very training period to them coming into force, police personnels are considered to instil fear and anxiety in the minds of suspects and alleged criminals. The more power and force an officer uses against them, the better he/she is extolled as a good cop. For instance, the suspects of the Hyderabad Gang Rape case that took place in November 2019, were all killed during an encounter with the police. The death of these men who were only named as suspects in the case earned much public appreciation and was widely celebrated.
Similarly, during the lockdown period, several videos surfaced the internet which showed police officials punishing the lockdown violators by raining lathis, making them sing the national anthem and forcing them to do sit-ups on the street. People instantly took to the internet to appreciate the police, completely forgetting the fact that they could fall victim to this system of tyranny at any time.
Recent Statistics of police misconduct in India:
As per the National Campaign Against Torture (NCAT) 2019 report, the number of custodial deaths was estimated to be at least 5 persons per day. The National Human Rights Commission (NHRC) of India has recorded a total of 1,723 cases of death of persons in judicial custody and police custody across the country from January to December 2019. The NCAT states that scheduled castes continue to face torture and inhuman treatment, and has recorded over 42,793 cases in 2018.
A recent report published by Common Cause reveals disturbing trends of police prejudice. The “Status of Policing in India Report 2019” states 1/3rd of policemen believe that people from Schedule Caste (35%), OBCs (33%), upper-caste (33%) and tribals (31%) are more prone to committing crimes. Similar preconceptions were also recorded across other states against Dalits, Transgenders, Adivasis and Migrants. More than one in 10 personnel reported not having received training on human rights and caste sensitization.
International Commitments and Constitutional rights:
Universal Declaration of Human Rights (UDHR) represents the most concrete and universal texture of human rights in human history.
It declares that everyone has a right to life, liberty and security of person, freedom from slavery or servitude, cruel or inhuman or degrading treatment, and arbitrary arrest and ensuring equality before laws and equal protection of laws.
It is pertinent to mention Article 7 of ICCPR (International Covenant on Civil and Political Rights) which states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”
Article 21 of the Indian Constitution states “No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
The Constitution of India does not expressly provide for prohibition of torture, but Article 22 does provide for the rights of an arrested person such as – Right to know the reason of arrest, right to consult a lawyer, and right to be released if not produced before magistrate within 24 hours.
However, the legality of such rights are turning out to be futile as there is a persistent increase of human rights violations in police custody including rape, custodial torture and death in India.
Legal Liability of Police in India:
The police can be held accountable under the public law, criminal law and also private law. As for public law, liability can be imposed on acts violating the Constitution of India and the Administrative law. The precedence of such liability can be traced back to 1983 in the case of Rahul Sah v State of Bihar[i], where the Supreme Court passed an order of compensation for the violation of Article 21 and Article 22 of the Indian Constitution for the offence of illegal detention of the petitioner.
In Nilabati Behara vs. State of Orissa[ii], a custodial death case, where the mother reported the death of her son as a result of multiple injuries inflicted upon him during custody, the Supreme Court held that such action was a clear violation of the fundamental rights and awarded compensation under Article 32 of the constitution. The court went on to state that the principle of “Sovereign immunity” is not applicable in cases where there is a clear violation of fundamental rights. In the case of A.V. Janaki Amma And Ors. vs Union Of India[iii], the court held that: “it has been well established that for violation of fundamental rights guaranteed under Article 21 of the Constitution of India, public authorities, officials and the State are liable to pay compensation.”
As for criminal liability, the CrPc provides a wide range of powers are given to the police with regard to arrests without warrant, use of force to disperse unlawful assemblies. Moreover Section 197 of CrPC grants wider impunity to them for any acts done in the discharge of their official duty.
In P.P. Unnikrishnan v. Puttiyottil Alikutty[iv] , the Supreme Court analysed the scope of Section 197 of CrPc and stated that there must be a clear connection between the act committed and the discharge of the official duty to avail protection under Section 197 of CrPc. Relying on this judgement, the Gujarat High Court in the case of S.S. Khandwala (I.P.S.) Addl. D.G.P. and Ors v. State of Gujarat [v], held that the police officials ,who were accused of illegal detention and torture during custody for three days, are liable because their acts of torture were clearly outside the scope of their official duty.
In case of Private Law, it has been stated previously that the doctrine of sovereign immunity can be used as a defence in civil suits. In the case of Kasturilal Ram Jain v. State of UP[vi]. , where a suit was filed against the State of U.P. asking compensation for the missing gold ornaments that the police had lost due to their negligence, the Supreme Court applied the principle of sovereign immunity and held that because it was in the course of employment of a government servant, the police officers have sovereign immunity in such cases. The court stated that the act of negligence was committed while exercising their statutory power and therefore has immunity from tortious liability. Therefore, there is limited scope for making a police officer liable under private law unless the claim is based on controversial facts. A writ under public law has been used more widely for remedy than writ under private law.
Other means of accountability can be done through NHRC ( National Human Rights Commission), as they have the power to enquire matters pertaining to human rights violations. Police personnel’s can also be held liable for violating rules/laws under the Police Act, 1871.
Police Brutality During Lockdown Period:
The Covid-19 Pandemic has predominantly changed the course of living for the world entirely. With the fear of being exposed to this deadly virus, India has an added fear of police brutality and repressive state violence. Despite the desperate need of the state’s support during this testing time, people are being tortured by the very forces that we seek protection from. While there have been certain relaxations/exceptions provided by the government, there has been an increasing instances of police misconduct from the very beginning of the lockdown series.
The police have resorted to excessive violence and indiscriminate use of lathis against people violating the lockdown restrictions and well as essential service providers.
On March 24th, police personnel in Delhi and Hyderabad were seen attacking journalists, who are categorized as essential services providers and even migrants who were returning back home. A month later, Mohammed Rizwan, a 19 years old boy was beaten to death by the police in UP. His crime? He went outside to buy a packet of biscuit during the lockdown period.
The recent case of custodial death in Tamil Nadu has shaken the country and exposed the corrupt methods of punishment practised by these lawmakers. Two men, namely Jayaraj and his son Fenix were brutally beaten, sodomised and assaulted by the police while in custody which ultimately lead to their deaths.
Despite much public outrage over this, there has been several other cases of such human rights violations by the police throughout the lockdown period.
Police brutality and torture during the last three decades show that the custodians of law have now become the lawbreakers. The government, both at the central and state levels must implement new rules with regard to police conduct and strict action must be taken against police brutality before torture is implemented as the new method of investigation. Recruitment of police should be made ensuring that pre-existing biases and ideologies are cleansed and implementation of lawful procedure is followed.
Archana Venugopal, 5th Year, CMR University of Legal Studies, Bangalore