Police have been in the line of fire since the beginning of last year. Being the largest law enforcing agency, they have been entrusted with an extremely delicate duty to protect our human rights. Human rights are integral to the ethos of civil society. The founding fathers of our country incorporated them as fundamental rights in our Constitution much before their general acceptance by most of the world. They hold a high place in terms of the rights of the citizens of our country. We are expected to trust the police, first and foremost, if there is a violation of our fundamental rights by any individual, group or an instrument of
With numerous cases in the news of police committing brutality against the citizens during this compelling time has become a worrying issue that needs to be addressed urgently. It is not a few black sheep of the force but the whole organisation that is being painted with the same black brush. With the support of outdated laws and unwarranted exercise of power, the police have created an atmosphere where people are more scared of being beaten to death than feeling safe in police protection. This is not just a recent development.
Since the Citizenship (Amendment) Act (CAA) and National Register of Citizens (NRC) protests, first the students then certain important personalities of the society have shown their support in condemning the excessive use of power by the police. It has become common knowledge that the police take part in large scale illegalities – be it corruption, brutality, custodial deaths, etc.
This has become a movement not only in India but all over the world. The latest cries have come from the people of the United States of America when the case of George Floyd from Minnesota caught the light. As soon as this case was reported, social media all over the world adopted it and made it a global issue. Disregarding the rules and regulations of the lockdown and without the worry of the COVID-19 pandemic, the people have stormed the streets of the cities and shown their support to a movement that has come to be known as the Black Lives Matter movement.
It has been over a month since all these people, be it black, white, Asian and others have been protesting in solidarity both online and offline. Their motive is to bring light to more issues where the minorities such as the women, the children, the aged, the poor, the destitute and the backward are being oppressed through excessive use of power showing a complete disregard of their human rights.
The most popular defence in support of the police is the claim that it is for the greater good of society. This brings us to the question of whether the police can exercise unlimited power in the name of safeguarding peace in the society. The harsh reality has to be faced to understand the motivation behind their indefensible behaviour. Not only the department but its role in the Indian Criminal Justice system needs to be evaluated.
The movement against police misconduct in the United States has managed to garner the attention of people from all over the world. Unfortunately, this still hasn’t sparked an active debate on similar instances happening in India. Citizens from Uttar Pradesh, Delhi, Chennai, Andhra Pradesh, Madhya Pradesh, Maharashtra, Tamil Nadu, West Bengal, Punjab and Gujarat have reported cases of extreme force being used by the police which can only be declared as brutality.
Several deaths have been caused where the person was lathi-charged and suffered grave injuries that unfortunately resulted in his/her demise. Not even a female doctor was spared when she stepped out to go to the hospital for her night shift. Policemen pulled at her hair and thrashed her which counts as clear harassment. The unregulated illegal behaviour of the police could not get any worse, considering the country is already going through a pandemic. While the whole country is showing solidarity with the people of the United States, it is high time to reflect and address our own country’s issues as well.
A report has been recently published called “Status of Policing in India Report, 2019” by Common Cause, a civil society organisation that aims to protect rights and entitlements of all citizens, and the Lokniti Programme of the Centre for the Study of Developing Societies, a social science research institute that monitors the working of Indian democracy. This report was a result of interviewing nearly 12,000 police personnel from 21 states. Along with the people in service, their family members were also included in the research interviews. The researchers used government data and interviews to conclude. The following are excerpts from the report –
Three out of every four police personnel believe that the police are justified in being violent towards criminals.
Four out of five personnel believe that there is nothing wrong in the police beating up criminals to extract confessions.
When asked the question “There is nothing wrong in the police being violent towards criminals. Do you agree or disagree?” 50% of the general public that responded condoned the use of violence on criminals in police custody.
16% did not choose to respond, while only 34% of the people were partially or completely against violence on criminals.
It should be noted that a criminal could either be an accused person or a convicted person. It was intentionally left ambiguous for the people to judge whether a person in police custody or declared as a criminal is convicted of the crime or not. There is also a sympathetic nod towards the stressful working conditions of the police that seemed to affect the opinion of the public.
In the past, several measures have been initiated to curb police brutality and establish accountability in the department. In Vineet Narain v. Union of India, the Supreme Court asked for immediate implementation of the reforms submitted by the National Police Commission between 1978 and 1981. In Prakash Singh v. Union of India, the Supreme Court deliberated upon the autonomy, accountability and efficiency of the police department.
Police brutality and misconduct can also be opposed through certain external measures such as approaching the court under laws such as criminal law, public law or through private tortuous liability.
A three-judge bench of the Supreme Court in Rudul Shah vs. State of Bihar, passed an order under writ jurisdiction for compensation for violating Article 21 and Article 22 of the petitioner, where the petitioner was unlawfully detained in prison even after his acquittal.
In the two cases that followed, Sebastian Hongray vs. Union of India and Bhim Singh vs. State of Jammu and Kashmir, reliance was taken off the Rudul Shah case and merely a compensation amount was awarded without any reasoning provided by the Supreme Court.
In Nilabati Behara vs. State of Orissa, a three-judge bench held in a matter of custodial death that the cause of death was police brutality which is a violation of fundamental rights. The aggrieved party was awarded compensation under Article 32 of the Constitution. The court also clarified that the principle of sovereign immunity is inapplicable in a case of violation of fundamental right.
In A.V. Janaki Amma And Ors. vs Union of India the court observed that “It is no more res integra that for violation of the fundamental right guaranteed under Article 21 of the Constitution of India, public authorities, officials and State are liable to pay compensation. In a given case, it is always competent to public law Courts in India exercising powers under Articles 32, 136 and 226 of the Constitution of India to award compensation in public law. Such compensation is only by way of applying balm to the injury suffered by the person or the victim. Such remedy is in addition to the remedy in tort in private law.”
But ultimately, in Sube Singh v. State of Haryana, the Supreme Court reiterated that a remedy against violation of Article 21 would be available provided it is “established or is incontrovertible” that it involves custodial death or torture rather than a case where it is “doubtful or not established”.
The Criminal Procedure Code, 1973 and the Indian Penal Code, 1860 provides for criminal law liability against police misconduct while the Constitution of India and our administrative law provides for public law liability. Tortuous liability has not advanced as much in India.
The police derive their power from The Epidemic Diseases Act, 1897 during the national lockdown. This Act does not even define a “dangerous epidemic disease” and has room for misuse as it gives unregulated power to the police. A new and relevant Act needs to replace this Act, ensuring that it adheres to the needs of the society and is a well-protected regulating system.
It is the state that pays the heavy compensation to the aggrieved in such cases of police misconduct as it is held vicariously liable. Instead, the individuals should bear the consequences of their actions in some way or the other. This can set an example for the rest of the force. Awareness needs to be spread that heavy reliance on writ jurisdiction of the High Court and the Supreme Court should not be put as even the subordinate courts can try such matters.
The Police Complaints Authority (“PCA”) is a mechanism that was introduced in 2006 in the Prakash Singh case. Based on the recommendations given by the Supreme Court in the judgment, this is a body that anyone can approach to file a complaint against any officer including all ranks. This is a golden opportunity to regulate the exercise of power by the police. It has not been strengthened in most of the states of our country yet.
The issue of police misconduct and illegal behaviour has been making the rounds since before the lockdown even started. It is no surprise that the police have now resorted to some of the most humiliating ways to shame the people who violate the laws of the lockdown. They have not held themselves back while using excessive force to lathi-charge upon such people. Cases of these events have turned into national news as soon as it started leading to their deaths. The situation is dire and requires immediate attention.
Regardless of the opinion of the general public according to the reports mentioned earlier, use of excessive force even while performing their law enforcing duties is illegal. Courts have proven to be the saviour and provider of justice in such cases. They have reiterated enough times that any violation of fundamental rights, once proven, is a punishable offence under public law, apart from criminal and law of torts. As a step forward, the citizens should primarily be made aware of their fundamental rights.
 (1998) 1 SCC 226
 (2006) 8 SCC 1
 AIR 1983 SC 1086
 AIR 1984 SC 571 and AIR 1984 SC 1026
 AIR 1986 SC 494
 Supra note 5
 AIR 1993 SC 1960
 2004 (1) ALD 19
 (2006) 3 SCC 178
 Supra note 4