police brutality

Introduction

Police brutality covers the full range of practices of the police, which do not adhere to the rule of law and the spirit of the laws, due to personal bias, corruption, political interference, lack control, accountability, discipline and includes using abusive language, unnecessary interrogation and arrests, harassments, acts affecting physical and mental health, deaths, property damage and even excessive force used for crowd control, essentially abusing and misusing power and force, or by dereliction of their duty, entrusted upon them by law, which made them the protectors and guardians of the society to maintain law and order, to maintain it crime-free, for the society to flourish. These acts violate human liberties and dignity, hence are a violation of human rights and civil rights.

Police Brutality in India

The Indian Police Act, 1861, an archaic Victorian-era law, is the foundation of all the State laws in India, under which discipline and controls were never a priority. It was government-oriented, not people-oriented, law. This law has therefore given rise to many incidents of police brutalities and deaths.

The police were brutal against the freedom fighters as the British aim was to use the police force in all ways to continue their imperial rule which also aggravated fear in the minds of people about police, the fear which people have not overcome, even today. The Jallianwala Bagh massacre[i], is an example of police highhandedness, recklessness, integrity and lack of compassion and empathy, where police killed at least 400 innocent people and injured over 1,500 people. Many incidents of brutalities and death have been reported in the many civil disobedience movements and in other cases, unconnected with our freedom struggle also, during pre-independence

The police have not been reformed nor has it mended its ways, even after independence. The people’s fear of the police remains the same, if not more. Physical maiming, custodial deaths and encounter deaths have become the new norms of the police. Brutalities seem to grow in strength and sophistication, as India progresses in other spheres. Bhagalpur blindings[ii], where about 33 people were blinded by the police. A total of 1,731[iii] people died in custody in India during 2019, of which 1,606 of the deaths happened in judicial custody and 125 in police custody, averaging around 5 deaths in a day.

Out of the 125 deaths in police custody, Uttar Pradesh topped with 14 deaths, followed by Tamil Nadu. The recent custodial torture and deaths at Sathankulam, Tamil Nadu, shows how the rogue members of the police are conducting torture and deaths in their custody in a very carefree manner. Police have started taking law into their own hands and encounter deaths have become common. In some cases, like the recent Hyderabad gang rape and death case, where the four accused were shot dead in an encounter by the police, the people cheered them, because of our tedious and delayed justice at courts.

Causes

  1. Recruitment and Training – the normal criteria for police recruitment is physical requirements and fitness. Other traits like social, psychological, emotional quotient are never evaluated, resulting in many misfits in the forces. Training is inadequate and many recruits are not fit to handle every situation. Moreover, continuous training on the job is totally absent. Most of them have never received human rights training. A policeman also requires communication and negotiation skills, mental agility and an eagerness to learn, integrity, compassion and empathy to perform his duties
  2. Facilities, Work timings, Work Culture, Pay – Amenities like housing are inadequate and substandard. 86.77%[iv] of the total Police force consists of constables, who can hope to be promoted as a Head Constable during their whole career. A handful may be promoted to a more senior position. Many of the constables are working as helpers to higher officials in the force and to those whom they are guarding. Their pay is also inadequate. All this lowers the morale and motivation of the force. Also, only 77%[v] of the sanctioned strength of police force is filled up, which makes them overworked and they become stressed.
  3. Public ignorance – The public is not well informed of their rights and over the years fear the police, not knowing that the police are financed from the public’s incomes and the police are for the protection of the public.
  4. Executive Interference – The political lords have been using the police machinery to settle their problems and disputes, illegally, which only emboldens the police to break the rules
  5. Corruption – A result of all the above reasons is corruption, which is rampant.
  6. Lack of accountability – There are no independent authorities at the national, state and district levels to look into public complaints against police officers in cases of serious misconduct, including custodial death, grievous hurt or rape in police custody as suggested by the Supreme Court[vi]. Under the Indian Penal Code, 1860, criminal complaints can be filed against the concerned officers for offences but there is no mechanism for an independent investigation. Therefore, police personnel often refuse to register first information reports against their colleagues.
  7. 197 of The Criminal Procedure Code, 1973 – This section requires prior sanction from the concerned government when a public servant, which includes a police officer, is accused of any offence committed in the discharge of official duty. This section gets misused as the sanction is very difficult to get, or if got, the sanction is subject to many delays. “Any offence alleged to have been committed by the public servant while acting or purporting to act in the discharge of official duty” and excesses committed by the said public servant is generally interconnected and only a thin line separates the official and the unofficial acts. That burden and amount of proof required are more.
  8. Legal recourses – the High Courts and the Supreme Court can be approached under the Constitution of India, for remedies, including compensation, for violations of fundamental rights. They are not widely accessible and usually deal only with egregious cases, where the burden of proof is high.
  9. National and the State Human Rights Commissions – Relief can be sought before these Commissions set up under the Protection of Human Rights Act, 1993, but their recommendations are not binding on the respective governments.
  10. Minorities – There seems to be religious and caste bias and prejudices, and this pre-conceived discrimination affects the personnel to harass and be brutal as revealed by The Status of Policing in India Report 2019 by Common Cause and the Centre for the Study of Developing Societies
  11. Settlements – It is usually the State, i.e. the taxpayers that pay for the compensation to victims of police brutality and not the accused.

There is a lot of reforms to be done, and with the existing state of affairs and controls in our police forces today, it can be safely said that the consequences for police misconduct and brutalities are very minimal.

Developments and Reforms

Developed countries have been able to minimise police brutalities over the years but are still not able to eradicate it. In India, Kerala was the first state to initiate police reforms under Shri E.M.S Namboodiripad as Chief Minister and Shri V.R. Krishna Iyer (later Justice V.R. Krishna Iyer) as Home Minister in 1959 and a report on Police Reorganisation was submitted in 1960, but no action had been taken. Subsequently in India, the following initiatives were taken to reform the police:

  1. National Police Commission, 1977-81. The Commission produced eight reports between 1979 and 1981, suggesting wide-ranging reforms in the existing police set-up.
  2. Riberio Committee, 1998, submitted one report in 1998 and the second report in 1999 on police reforms.
  • Padmanabhaiah Committee, set up by Home Ministry for police reforms in January 2000, finished their work in eight months
  1. Justice V. S. Malimath Committee submitted a report with 158 recommendations in 2003, for reforms.
  2. Police Act Drafting Committee, 2005, chaired by Soli Sorabjee, submitted a Model Police Act in 2006. 15 states (Assam, Bihar, Chhattisgarh, Haryana, Himachal Pradesh, Kerala, Maharashtra, Meghalaya, Mizoram, Punjab, Rajasthan, Sikkim, Tamil Nadu, Tripura, Uttarakhand) passed new laws and 2 States (Karnataka and Gujarat) amended their existing laws in light of this new model law[vii].
  3. The Supreme Court in Prakash Singh v. Union of India[viii] laid down seven directives to all the State Governments, which can be broadly divided into two categories

Part I: For achieving functional autonomy

  1. To constitute a State Security Commission which would ensure that the State Government does not exercise unwarranted influence or pressure on the police, lay down broad policy guidelines and to evaluate the performance of the State police.
  2. To ensure that the Director-General of Police is appointed through a merit-based, transparent process and enjoys a minimum tenure of two years.
  3. To ensure that other police officers on operational duties also have a minimum tenure of two years.
  4. To set up a Police Establishment Board, which will decide all transfers, postings, promotions and other service-related matters of police officers of and below the rank of Deputy Superintendent of Police and make recommendations on postings and transfers of officers above the rank of Deputy Superintendent of Police.
  5. To set up a National Security Commission at the Union level to prepare a panel for selection and placement of Chiefs of the Central Police Organisations (CPO), who should also be given a minimum tenure of two years.

Part II: For enhancing Police Accountability

  1. To set up an independent Police Complaints Authorities at the State and District levels to look into public complaints against police officers in cases of serious misconduct, including custodial death, grievous hurt or rape in police custody.
  2. To separate the investigation and law and order functions of the police.
  • Police Act Drafting Committee II, 2015, improved on the earlier Model Police Act in 2006, tried to incorporate the essence for making police more responsive, efficient and citizen-friendly.

It is pertinent to note that all the reform measures discussed above, took about thirty years, but had not resulted in any actual changes of laws, until very recently. The Prakash Singh[ix] case was filed in 1996 and the judgement itself took ten years. Multiple committees, reports and everything on paper, but nothing meaningful had been implemented till a few years back. Many of the important recommendations have been side-lined or ignored, even in the little reforms that have been implemented so far.

Other Urgent Reforms

  1. Separation of Investigation function from Law and Order – Separation of Investigation function from Law and Order functions of the police is of utmost importance. In any commercial organisation, the cashier is never entrusted with the accounts, as it tempts and makes it easier for embezzlement. Similarly, for internal controls and to reduce the workloads of an already stretched, understaffed organisation, it is with the immediate necessity to separate investigation from law and order. This will bring in professionalism, efficiency, functional clarity, an expedition of filing of charge sheets, removal of bias and public trust.

Many crimes go unreported because FIR’s are not encouraged by the police as more work has to be done. They rather would prefer to have kangaroo courts in their stations, for reducing procedural workloads and for the corruption. Another aspect of non-reporting of crimes is due to the fear in the mind of the people about police and the public not understanding or having awareness of their rights and the functions of the police.

This separation of investigation function from the law and order function has been directed in Prakash Singh Case[x] and had directed it to be a coordinated effort between the two wings. However, the investigation department should be very independent, like that in an inquisitorial system, as suggested by the Padmanabhaiah Committee and it should be under the control of the Magistrate and the Judiciary.

  1. Indian Evidence (Amendment) Bill, 2016, Section 114B – The then Chief Justice of the Supreme Court, Shri. Y. V. Chandrachud in State of Uttar Pradesh vs Ram Sagar Yadav And Ors[xi] had stated “It is necessary that the Government amends the law appropriately so that policemen who commit atrocities on persons who are in their custody are not allowed to escape by reason of paucity or absence of evidence. Police Officers alone, and none else, can give evidence as regards the circumstances in which a person in their custody comes to receive injuries while in their custody. Bound by ties of a kind of brotherhood, they often prefer to remain silent in such situations and when they choose to speak, they put their own gloss upon facts and pervert the truth.

The result is that persons, on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station, are left without any evidence to prove who the offenders are. The law as to the burden of proof in such cases may be re-examined by the legislature so that hand-maids of law and order do not use their authority and opportunities for oppressing the innocent citizens who look to them for protection on.” On those lines in the Indian Evidence (Amendment) Bill, 2016, Section 114B had been introduced, which is, “Presumption in the prosecution of custodian death or injury” has not yet been approved by the Rajya Sabha.

  1. Awareness of the public – There should be steps taken to educate and make people aware of their rights and also the functions of the police. This should be taught in schools. The misbehaviour of the force increases with every silence of the public by their negligence or fear to complain about misconduct or brutalities committed on them by the police.

Conclusion

A police force, which is efficient, honest and professional to the core can only provide a sense of security to the citizens. The need for police reforms is urgent. The causes of police brutality as enumerated above reveals the amount of rot and decay in the system which require dynamic and pro-active steps to be taken to tackle the problem. Reforms, therefore, have to do in both statutory and actual physical changes. Implementation is missing. We have been slack and we need the determination and speed to implement or execute the reforms which have been enumerated by the various Committees.


Author(s):

jayachandran k nair Jayachandran k Nair | Advocate

savitri dhanesha Savitri Dhanesha | Advocate


References

[i] 13 April, 1919

[ii] 1979-81

[iii] Annual Report on Torture 2019 published by the National Campaign Against Torture (NCAT)

[iv] Page 8, Police Organisation in India, A report by Commonwealth Human Rights Initiative (CHRI), 2015

[v] Status of Policing in India Report 2019 by Common Cause and Centre for the Study Developing Societies

[vi] Prakash Singh v. Union of India, (2006) 8 SCC 1

[vii] Lok Sabha unstarred question no. 1451 on ‘Uniform Police System’ dated 03rd May 2016

[viii] (2006) 8 SCC 1

[ix] Supra Note 6

[x] Supra Note 6

[xi] 1985 SCR (2) 621

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