With more power to executives comes more police brutality and discrimination. Discuss the legal rights and constitutional rights for the same.
Police brutality can be understood as excessive use of force by the Police against the civilian population. The infamous incident of George Floyd shook the entire world. We all saw the widely circulated video on social media where it can be seen that a white police officer was kneeling on a black man’s neck which eventually led his death, while he was crying for his life. This incident leads to violent protests in America, even during the time of a pandemic. The U.S. Government immediately took action against this incident and the officers involved in the killing of George Floyd were immediately charged with a criminal offense. Further, the Government revised the Police Guidelines which led to the ban of a chokehold and various other inhuman methods.
As per reports, in 2019, India has witnessed 1,731 custodial deaths. This often leaves us wondering how the police department derives unlimited powers to use disproportionate forces on a person in custody. The conviction rates of these custodial deaths still remain a question.
Tuticorin Custodial death
Few days after the incident of George Floyd, India has witnessed a similar case of extreme Police Brutality in Tamil Nadu. In Thoothukudi (Tuticorin) of Tamil Nadu, two men P Jayaraj and his son Bennicks were arrested for violating the curfew rules by keeping their shop open beyond permissible hours as prescribed under the lockdown guidelines. Two days later, the father-son duo succumbed to their injuries, while in custody. As per sources, both of them were subjected to various inhuman and degrading methods of torture while in police custody. Soon after the incident, the Madras High Court took suo moto cognizance of the incident. Unlike the case of the U.S., the Indian government had initially suspended the officers and transferred a few other officers who were involved in the case. However, later due to the widespread protests across the state, these officers were arrested by the Crime Branch-CID and charged with murder.
Evolution of Police Force
The evolution of the Police Force can be traced back to the colonial era. The Indian Soldiers at that point of time turned against their British Commanders which was then that the British came to a realization that there needs to be a separate Police Force that is entirely under the control of an executive organ of the Government. Thus, the Police Force of our country came into existence by the virtue of the Police Act, 1861. Through Section 3 of the Police Act 1861, the State Government was given Superintendence over the State Police Force. Due to these provisions, the Police Officers were only accountable to Political and Administrative Executives. The senior posts were occupied by the British themselves and lower positions were occupied by the locals or natives. This resulted in some uncertainty within the Police Force which led to a form of distrust. This can be seen in various provisions of the Code of Criminal Procedure and Indian Evidence Act, 1872. By the virtue of section 162 and Section 25 of the Acts respectively, the confessions made to the Police Officers in Police Custody are inadmissible before the Court.
As per Article 246 of the Indian Constitution, Police Force comes under the provision of State List. The executive organ of the Government has become more powerful by virtue of the Epidemics Diseases Act, 1897. Although this act is very a small legislation with merely four sections, nonetheless, it gives widespread power to the Central as well as the State Government.
Due to the system established in the British Era, the officers in the lower rank were made to obey the orders of the superiors blindly without any objection. More importance was given to the physical appearance because the British believed that this would be a deterrence to civilians from committing a crime. Even after 70 years of independence, the Police Act 1861 still remains in force. This makes them accountable to the politicians and bureaucrats. Police Brutality reached its heights during the Emergency period. Shah Commission was appointed by the Government to look into the atrocities committed by the police during the emergency. The Commission came to the conclusion that police officers were employed for the benefit of the political party in power at that time and were in complete violation of the rule of law. This practice can still be seen in the case of transfers, promotions, and recruitment. There National Police Commission as well as the State Police Commissions found out that there was immense misuse of powers by the Police.
The Members of Parliament as well as the members of the State Legislative Assembly have criminal records. When there is a connection between the criminals and the politicians, the loyalty of the Police Force becomes a question. In the year 1996, two retired DGP’s (Director General of Police), filed a case before the Supreme Court, which was popularly known as Prakash Singh v Union of India. This petition stated the abuse of power by the Police Force, which includes custodial deaths, torture, and rape. It aimed at abolishing the law that existed in the Colonial era. It took 10 years for the Hon’ble Supreme Court to deliver this judgment. The Court recommended the setting up of the State Security Commission to evaluate the functioning and performance of the Police Force. According to the reports of NITI Aayog, the composition of these commissions was not in accordance with the Supreme Court Guidelines as they consisted of Police Officials and Government and also, they did not have the power to issue recommendations. This again led to the misuse of power of the executive.
“Power is neither good nor evil. It just is. It’s what people do with the power that matters.” ― C.J. Redwine, The Traitor Prince
The Indian Policing system lacks the mechanism of external checks and balances. The need for Police reform has been discussed for decades by the Government. During the 10- year legal battle of Prakash Singh v Union of India, the Court set up a Police Act Drafting Committee which led to the Model Police Act 2006. The Preamble of Police Act, 1861 categorizes police as a mechanism for the detection and prevention of crimes. However, the Preamble of the Model Police Act, 2006, makes the police force a mechanism that promotes socio-economic, cultural, and human rights. The preamble of this Act could have been the driving force for various police reforms in India, but this Act still remains a Bill which is yet to be passed.
Guidelines on the arrest of accused persons
The case of custodial deaths can be traced back to the year 1993, through the infamous case of Nilabati Behera vs. State of Orissa (AIR 1993 SC 1960). On the basis of a letter written by Nilabati Behera the Supreme Court took Suo Motto cognizance on the custodial death of her son Suman Behera by the virtue of Article 32. This landmark judgment ensured that a State cannot escape from the liability when there is a grave violation of the fundamental rights. Another landmark case that laid down very important guidelines on the arrest of accused person D.K. Basu vs. State of West Bengal [(1997) 1 SCC 416]. This historic judgment laid down various rights of the accused person:
- Every police officer making the arrest shall wear identifications which shows their designation and name precisely.
- The police officer who makes the arrest shall make a memorandum of arrest and shall be signed by a witness.
- The detainee has the right to inform his nearest family member or any other person who has an interest in his well-being about his arrest. This right should be informed to him immediately after his arrest.
- The details of the arrest should be recorded in the case diary.
- The detainee should be undergoing medical examination every 48 hours for any major or minor injuries.
- The Police Control Board must display the list of arrested persons. The Police Control Room shall be informed within 12 hours of the arrest.
Through the analysis of the critical judgments of the judiciary it can be understood that excessive power given to the executive in India remains the main problem.
As mentioned earlier, the admissions made in police custody are inadmissible before the Court of law. However, this is contrary when we look into the provisions of Terrorism and Disruptive Activities (Prevention) Act, 1987 and Prevention of Terrorism Act, 2002. By the virtue of these provisions, the admissions made before the Police Officer while in custody can be made admissible evidence before the Court. This creates a striking difference between both types of offenders, which leads to the violation of Article 14 and 21 of the Indian Constitution.
Rights of accused persons
One of the important Articles in our Constitution governing the rights of the accused person in Article 22. It guarantees the following rights:
- The person has the right to know the grounds of his arrest.
- Right to consult a legal counsel.
- The arrested person shall be produced before a judicial magistrate within 24 hours.
However, these provisions have certain exceptions as they do not apply to persons arrested under Preventive Detention Laws. Along with this, Article 20 of the Indian Constriction lays down the following rights:
- Protection against ex-post facto law.
- No one shall be punished for the same offense twice
- The accused person has the right to remain silent.
In Bhim Singh v State of Jammu and Kashmir (AIR 1986 SC 494), the Hon’ble Supreme Court laid down that arrest of a person with malicious intent is a grave violation of Article 19, 20 and 21 of the Indian Constitution. This case was regarding the illegal detention of MLA Bhim Singh. These provisions of the Constitution cannot be suspended even in times of emergency. Supreme Court as well as the High Courts of various States have laid down various guidelines on the rights of an accused. By the virtue of sections 436 to 450 of the Code of Criminal Procedure Code, 1973 the arrested person has the right to bail.
Conclusion
Based on the statistical data available to the citizens, the public has always blamed the police when there is an increase in criminal activity. As per reports, the Police often conceals information or avoids the registration of FIR (First Information Report, in order to reduce the burden of cases. Also, to overcome such public criticisms, the officers often use unlawful methods for investigation. We are not always justified in blaming the Police Force, because the commission of a crime is influenced by various other external factors. The hypocrisy of our society is another reason for police brutality.
It’s bizarre to note that the Police Force is one of the most untrusted executive organs of the Government in a democratic country like India. The barbarity of this organ of the Government was also seen in the CAA (Citizenship Amendment Act, 2019) protests in Delhi and Uttar Pradesh. This needs to stop before torture is normalized as a method of investigation. We have one of the highest numbers of custodial deaths among the various democratic nations and the weakest law to protect the citizens from inhuman treatment by the police forces. India follows an adversarial system of criminal justice, wherein the burden of proof is on the prosecution to prove its case. However, there is no law that decides the burden of proof when a person succumbs to injuries while in police custody. The transparency and accountability of the system is the only way to protect citizens from abuse of power.
(This article has been written and submitted by Ms. Navya Sony during her course of internship at B&B Associates LLP. Ms. Navya Sony is a Final Year Law Student Symbiosis Law School, Pune)
