With the western world erupting over the murder of George Floyd, the reality of Police brutality, encounter killings, and racial profiling has been laid bare. When writing a paper on Police brutality, the average Indian doesn’t have to venture over to the American peninsula. While Police brutality is mainly a result of racial profiling in the U.S., it has communal and political undertones in India. However, it is a curious fact that Police brutality is not met with as much hostility in India compared to other western countries. A reason for this One might argue that the country has become stagnant as far as civil rights are concerned.
The Black’s law dictionary defines Police brutality as “the use of excessive and/or unnecessary force by Police when dealing with civilians. “The term force in this definition can be logically interpreted to include physical harassment and damage to property. Understanding the definition of Police brutality further begs the question that is the cause. The root cause can be attributed to the visible pattern whereby Police officers are seldom held accountable for their actions.
The NHRC, since its inception in 1993, has recorded a disturbing 31,845 cases of custodial deaths till 2016. The Police system in India is based on the provisions in the Police act, 1861, which was legislated in the wake of the Sepoy Mutiny, 1857. Hence, it’s provisions are laid out in a very authoritarian manner, which minimizes the police officer’s accountability and makes them answerable only to their hierarchy(Section 3 & 7, Furthermore, the Head of Police (Director General/ Inspector General) enjoys her/his tenure at the pleasure of the Chief Minister. S/he may be removed from the post at any time without assigning any reasons. Such a state of affairs has resulted in wide-spread politicization of the police where increasingly, allegiance is owed not to the law but to the ruling political elite.
Even though the Police falls under the State list in the 7th schedule of the Indian Constitution (Article 246), most of the states have adopted the central law or have statutes that are sculpted from it.
It is well established through various case laws that the State can be held liable for the violation of fundamental rights of a person under Part III of the Constitution of India and be granted compensation for cases of Police brutality (Sube Singh v. State of Haryana). Furthermore, there are provisions in the Police act, 1861 (Section 7 & 29, Police Act, 1861) for disciplinary actions to the range of suspension, demotion, and dismissal of Police officers by internal disciplinary authorities. However, these are ineffective in curbing abuse by the Police because in civil cases, the curtains of the doctrine of vicarious liability veil over them. The Court observed that the State would be vicariously liable for the actions of its police officers and the defense of sovereign immunity will not stand ground as this is a gross violation of Article 21- Right to life of an individual. Although the decision of the Court to reject the plea under Sovereign immunity is commendable, the brunt of the fundamental right violation although caused by an individual was still faced by the State under vicarious liability. So, in effect, individual civil liability for cases of police brutality is not available in India. The CrPC, 1973, being relatively modern legislation, still contain provisions for a procedural immunity granted to government servants to prevent litigations against an official performing a public function (Section 132 & 197). Although it wears the shroud of a significant and inevitable provision upon prima facie examination, in hindsight, it is has been used as a means for the Police to elude criminal liability for their actions..
As a remedial measure to the abuse of this provision, the Allahabad High Court has observed that the action of the Police officer must have a “direct nexus” to the discharge of official duty(UttarakhandSangharshSamitiv. State of U.P). The Apex Court has also further clarified this by observing that it must be proved that the action was committed in the course of performance of their duty in order to invoke this provision (P.P. Unnikrishnanv. PuttiyottilAlikutty).
On a practical note, a significant setback arising here is that the Police officers often refuse to file First Information Report and hence hinder an inquiry against their fellow officers even if cases of abuse are reported. Another challenge faced by the victims is the Police officers blindly threatening the victims of custodial torture. It is alleged in the Tuticorin Custodial Death Case that the Police threatened the victims to not disclose the facts of the torture to the Magistrate upon being taken for remand or to the doctors when taken for the medical checkup. This is a haunting and very recent example of this situation.
The Supreme Court’s landmark judgment in Prakash Singh v. Union of India works as a check against this atrocity. The Court’s directions called for the establishment of Police Complaint Authorities (PCA) at both district and state levels to hear complaints against Police officers. The PCAs are empowered to take cognizance of the complaints made by victims or victim’s representatives and have the power of the Civil Court under the Code of Civil Procedure, 1908. The Soli Sarabjee Committee’s recommendation, which drafted the Model Police Act, further detailed the PCA structure to include retired judges and retired Police officers to prevent conflict of interest (S. 161, Model Police Act, 2006).
If duly enacted throughout India, this has the potential to monumentally curb the menace of Police brutality as it would make taking cognizance of victim’s complaints easier and justice more accessible. However, as per the reports, only 12 states have PCAs functioning at ground levels.
In hindsight, it can be concluded that Police brutality is a genuine problem in India, and even though sufficient checks and measures against this exists on paper, it is yet to be practically implemented. The primary aim of the government should be to prevent it from happening at all costs. This can be achieved by effectively implementing the recommendations of the Soli Sarabjee committee. Moreover, when cases of abuse of power by the Police against a person do arise, the State should recognize their responsibilities to not only provide compensatory benefits to the victim but also to press charges and prosecute the Police officers responsible. The people of our nation are waking up, and they are starting to speak up for their rights. It is heartwarming to know that people have held governments responsible for their inaction and that post-Independent India has witnessed governments toppling over police brutality cases.