POLICE VIOLENCE: AN EXCUSE TO UPHOLD THE LAW OR TO ABUSE IT?

Authors:

Aditya Bhave, Savitribai Phule Pune University

Purbasha Mukherjee, Jogesh Chandra Chaudhari Law College


Editor:

Varun Hinge, Institute of Law, Nirma University


INTRODUCTION:

As the hashtag ‘BlackLivesMatter’ raged across the online platforms and the storm of police brutality came on the edge again with George Floyd’s brutal murder by a group of Minnesota police due to a deep-rooted hatred for African-American citizens, this debate over police violence in the States has grabbed the mass’s attention in and around the globe. However, this whole incident failed to gain people’s attention towards the rigorous violence in their own Country. India recorded a rising case of extrajudicial killings, police impunity, custodial deaths, third degree tortures, indiscriminate lathi charges and selective persecution of particular communities based on police biases.

TYPES OF POLICE BRUTALITIES:

v False arrest and wrong Imprisonment

v Sexual Harassment

v Custodial violence and fake encounters

v Wrongful search and seizure

EXTRAJUDICIAL KILLINGS AND CUSTODIAL VIOLENCE:

One of the most debated topics on police brutality is the extra judicial killings or ‘encounter killings’ and custodial violence in India. For decades they have formed the nuts and bolts of Indian judicial system. Starting from shoot-on-sight of petty dacoits to planned encounter of gangsters to torturing men because of prejudiced biases of policemen, custodial violence and extrajudicial killings have come a long way. Today the encounter killings are done in a way that it receives public applauds like in the ‘encounter killing’ of the four rapists who gang raped and tortured a young veterinarian in Hyderabad[1].

In 2017, Haryana recorded a whopping sum of 431 killing of civilians accidentally. Thus, Haryana makes up over 55% of total civilian killings and 2017 recorded a total sum of 772 of such accidental deaths by police around India[2].

The number of custodial deaths in Indian police are stupefying. A report[3] highlighted that 1641 civilian died in custody and most of them belonged from the vulnerable and minority communities, Muslims and Dalits. From April 2017 to February 2018, India recorded custodial deaths at a rate of five per day, according to statistics by the Home Ministry. A chart reported in one of many surveys of custodial deaths is presented below.[4]

The death of the father and son duo, P. Jayaraj (58) and Bennicks (31), in the Toothkundi district of Tamil Nadu is an example of custodial violence[5]. They were dragged to the police station and were allegedly beaten after being stripped naked and sodomized for keeping their shop open after the allotted hours during coronavirus lockdown. They died after three days of the bloodcurdling torture.

COURT GUIDELINES AND ITS WEAK IMPLEMENTATION:

The Supreme court had given guidelines to be followed in cases of encounters in PUCL v. State of Maharashtra[6] -

  • Whenever the police are in receipt of any intelligence or tip-off regarding criminal movements or activities pertaining to the commission of grave criminal offence, it shall be reduced into writing in some form (preferably into case diary) or in some electronic form.

  • If pursuant to the tip-off or receipt of any intelligence, as above, encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and the same shall be forwarded to the court under Section 157 of the Code without any delay.

  • An independent investigation into the incident/encounter shall be conducted by the CID or police team of another police station under the supervision of a senior officer (at least a level above the head of the police party engaged in the encounter).

  • “A Magisterial inquiry under Section 176 of the Code must invariably be held in all cases of death which occur in the course of police firing and a report thereof must be sent to Judicial Magistrate having jurisdiction under Section 190 of the Code.”

  • “The involvement of NHRC is not necessary unless there is serious doubt about independent and impartial investigation. However, the information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be.”

  • The court directed that these “requirements/norms must be strictly observed in all cases of death and grievous injury in police encounters by treating them as law declared under Article 141 of the Constitution of India.

However, most of the guidelines aren’t complied to. The Justice Thomas Committee appointed by the Supreme Court for monitoring compliance with the Prakash Singh judgement expressed disappointment in its report over the non-compliance exhibited by the states to follow the guidelines. In 2016, a NITI Aayog Document on police reforms in India revealed that very little has been done to follow the directions contained in the Prakash Singh judgement and guidelines[7]. Only 17 states had passed legislations to amend the police statutes and at some states where there was no legislation, Police complaints cell were constituted by way of government issuance but these complaints cell composition were mandatory in almost all states by the decision of the Supreme Court which was not complied with.

KNOW YOUR RIGHTS:

Every citizen of a country is entitled to some basic human rights as mentioned under the United Nations Declaration of Human Rights. These rights have been assimilated in our Constitution and is upheld by the Indian Judiciary. These rights are available to all persons, irrespective of their gender, race, religion, place of birth, caste, etc. These rights are also available to people who committed an offence or is a suspect of an offence and is under the police custody. Thus, knowing some basic rights available to every people, in case of an arrest, is very important. They are-[8]

1. Checking for an arrest warrant - The police are entitled to take someone under custody only if they have a warrant issued against the person except in a few situations mentioned under the Code of criminal Procedure (CrPC) where the arrest of a person without a warrant is not illegal[9]

2. If arrested without a warrant – If someone is being arrested for a ‘cognizable offence’ under Section 41 of the CrPC, the burden lies on the police officials to prove the guilt of the person arrested before the Court.

3. Detaining Women – Women can only be arrested by women police officer and touching the body of the detained person is not needed unless any such exceptional circumstance arises. Also, women cannot be arrested before sunrise and after sunset, except upon prior permission from the local Magistrate, only in exceptional cases. 

4. Right to know the grounds of arrest – According to CrPC every detained person, arrested with or without warrant, has the right to know the grounds of their arrest, if their offence is bailable or not and also the police are entitled to produce the arrested person before the Court within 24 hours of their arrest.

6. Eight to a lawyer - Every arrested person has the right to consult a lawyer of their choice and be defended by them.

7. A confession made only in the Court of law is admissible – A confession made is police custody is inadmissible in the court because there have been numerous cases of coercion by police to make some admit to offences, they did not commit so only a confession made during the trial in the Court is admissible. 

8. Medical examination - CrPC provides for a provision of mandatory medical examination of any person arrested by the police by any medical officer who is in service of central or state government or by any registered medical practitioner if government serviceable examiners are not available. Women arrestees can be examined by female medical officer or practitioner only.

BRUTAL POLICING A MERE EXCUSE TO UPHOLD THE LAW OR JUST AN ABUSE TO IT?

Police, all over the world, holds a reputation of gold. The glorification of power in movies and tv shows are cheered on by public, the brutalities are seen as the only way to justice. However, real life contradicts reel life tales. The notion of justice in India have always been violent. The huge celebrations in the encounter killing of the four accused in the Hyderabad Rape case proved how violence can be justified in India in the name of instant justice. Being citizens witnessing slow judicial pronouncements, we have always been happy with instant justices, we embrace them with open heart, and we have played our part in keeping this colloquial culture of police violence ongoing.

The policing system that was developed in the British era was devised in a way so that anyone who opposes state could be kept down and India is still practicing it. The Status of Policing misconduct in India as report by ‘Common Cause’ and ‘The Centre for the Study of Developing Societies’ reveals significant police bias against Muslims, Dalits, Tribal, Transgender and migrants of other states. The survey reported that most police personnel said that Muslims are more likely to committing violence. Almost about two in five of the police officials in Bihar, and one in five in six other states, had never received human rights training revealed the survey. The lynching of people who eat meat and who do not follow the majority religion is now a way to uphold justice.

Thus, the only thing that lingers at the end is that if the abuse of power in the name of upholding the law is the only way to its establishment, then can police violence ever come to an end?

[1]Naina Elizabeth Matthew, Police Brutality in India: George Floyd and Faizan, JURIST (July 1, 2020, 02:53 AM), /https://www.jurist.org/commentary/2020/07/naina-matthew-police-brutality-india/ (last visited Oct. 20, 2020) [2] In Depth: Encounter – Supreme Court Guidelines, Drishti IAS BLOG (Dec. 24, 2019), https://www.drishtiias.com/loksabha-rajyasabha-discussions/in-depth-encounter-supreme-court-guidelines [3] Torture Update: India, Asian Centre for Human Rights (June 18, 2018), http://www.achrweb.org/wp-content/uploads/2018/06/TortureUpdateIndia.pdf. [4] 180 custodial deaths in Gujarat in 16 years, no cop punished, Times of India (Jun 21, 2019, 00:31). [5] Sumithra Prasanna, Why Can’t India End Police Brutality?, The Diplomat (July 01, 2020) https://thediplomat.com/2020/07/why-cant-india-end-police-brutality/. [6] (2017) 13 SCC 773 [7] Naina Elizabeth Matthew, Supra note 1 [8] Rohan Deshpande, What can India do to combat police brutality and bias?, Scroll.in (June 22, 2020, 11:30 AM),https://scroll.in/article/964820/what-can-india-do-to-combat-police-brutality-and-bias. [9] The Code of Criminal Procedure, 1973, § 41; §42; §151

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