December 5, 2021

Rule of law or Rule of Police?

Introduction

To a man with a hammer each obstacle looks like a nail, to the Indian police settlement to every problem is a bit of violence. The praxis of severity is as old as mountains and is so customary that it is currently admitted as ‘Modus Operandi’[1]. The present form and function of police is linked to the history of its development[2].

Police brutality alludes to deliberate use of slander, custodial murder, sexual assault, false encounters, arbitrary arrest, illegal detention, custodial torture like electric shocks, burning with hot iron, dipping in water continuously, stuffing chilly powder in private parts, cutting eye lashes, extortion, making victim lie naked on ice, finger nail pulling etc. The exploitation originates from the powers accorded to police by government therefore there is requirement to implement, amend laws governing police administration. Most of the time torture is used to gain confession.

India has established into one of the world’s most powerful nations nevertheless police brutality and torture stays a prodigious trouble. Police brutality is an infringement of human rights, supremacy of law and dictum ‘Salus Populi est Suprema Lex’ [3].

Majority of the custodial violence atrocities occur in police detention and cases go inconspicuous since police themselves erase all the conclusive evidences. Custodial death is a very ignominious behavior of police violating their primary duty i.e. ‘to protect and serve’. As held in D.K. Basu vs. State of U.P.[4] ‘custodial death is a naked violation of human dignity and degradation that destroys, to a large extend, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backwards’

There is an urgent need to curb police violence by not only punishing the perpetrators but also amending and enacting strict laws.

History

The Indian police act, 1861 is a Victorian-era legislature under which disciplined police was no precedence. The act was drafted as a direct consequence of first war of independence which provided police system submissiveness and dictatorial. It is this reason police still practice brutality without fear as the law protects their merciless acts in the name of sovereign duty.

The Torture Commission of India 1884[5], set out particular ways of torture namely twisting rope tightly around arms and legs to hinder blood, dipping in well until person suffocates, scorching with hot iron, laying insects on scrotum, naval and other delegate parts, squeezing the testicles, thrashing with cane, suspending by arms while tied from behind, putting red chilly in private parts, these cruelties were sometime exercised until death.

The present day methods have not witnessed any form of refinement but police have now adopted new methods of torturing the victim like rape, false encounter, beating with heeled boots, canes, rifle butts, laying a person naked on ice, nail pulling, burning with lighted cigarettes, candles, etc.

Physical and mental torture of detainees is no new for Indian police. India witnessed a sharp rise in the toll of police brutality between1980-2000. Given the extend of torture and brutality by police there are some illustrative cases of police brutality which show that rape, murder, infringement of evidence etc. is been practiced for decades now.

Legal Aspect

The most significant fundamental right which is Article 21 of the constitution which defines ‘Protection of Life and Personal liberty’ which includes the right to live with dignity and within its ambits the article provides a guarantee against torture and assault. The Article 20 of Constitution of India deals with rights of a person in respect of convictions of offences.   

In Nilabati Behera vs. State of Orissa[6] the victim was tortured and killed in police custody, to erase the evidence police threw away the dead body on railway tracks to give the victim’s death a prima facie of accidental death by train. the court also ruled that prisoners and detainees are not denuded of rights under article 21 In State of Maharashtra vs. Ravikant Patil[7] an under trial prisoner was handcuffed with arms tied with rope and was taken on streets to humiliate him.

In Gauri Shekhar Sharma vs. State of U.P. [8] when victim’s family failed to give bribe, the victim was beaten until death in custody and the entries were manipulated. This proves that the police records can’t be relied upon. In Ram Kumar vs. State of M.P.[9] a 19 year old girl was raped in police custody similarly in Tukaram vs. State of Maharashtra[10] a young girl was raped in custody but due to lack of conclusive evidence the offenders got away and the case was closed but due to media and people’s outcry the case was again investigated and policemen were held liable. Niyamadevi vs. State of CBI [11] is a case of false encounter, where a ‘Naxalite’ was caught and then taken to deep forests and shot dead.

In Kishor Singh vs. State of Rajasthan[12] Supreme court held that torture in any form is a violation of article 21 yet still the number of casualties by police brutality kept on increasing. According to National Human Rights Commission (NHRC) report[13] the death toll of custodial death between year1993-2002 was 7256.

In Rattiram v. State of M.P[14] it was held that fair trial is heart of criminal jurisprudence. Police themselves violate these rights by savagely beating the accused in their custody.

Eventually the government of India ratified the United Nations convention against torture and other forms of cruel, inhuman or degrading treatment or punishment, 1984 on 14th October, 1997 and India joined the international race against torture.

Despite of many rules and regulations police still manages to pursue the acts of brutality and torture. Such act not only wounds a person’s body but also his constitutional and legal rights. Torture in custody scorns the basic rights of citizens and is a snub to humans and every aggrieved of police brutality is a nail to the coffin of Indian constitution.

Current Scenario

In late 80’s India witnessed some enhancements in circumstances concerning police brutality. The 44th amendment act declared article 20 and 21 as non-abdicate. In Sunil Batra vs.Delhi Administration and ors.[15] Supreme Court ruled that administration will be held liable in cases of custodial death and torture.

The evolution of ‘Custodial Jurisprudence’ began in D.K. Basu vs. State of West Bengal[16]  when court reviewed thoroughly custodial torture and delivered guidelines which are to be pursued in each matter of arrest and detention as preventive measures. Also court held that victims of illegal arrest and detention will be provided with compensation.

Nevertheless of all human rights, misdemeanors were at its high point conclusively Government of India incorporated the Protection of human rights act, 1993[17]. This act established the National Human Rights Commission and was emancipated to interpose in any judicial proceedings which concerned violation of human rights.[18]

Certainly laws were amended and enacted to prosecute cops liable for brutality, illegal custody, acts like S. 76, 162, 172, 173 of Code for Criminal Procedure, S.25 and 26 of Indian evidence act, S.29 of Police act, 1861, S. 339-348,350, 351, Indian Penal Code, 1860 to check the tendency of cops and judicial officers exercising torture on accused to gain confession.

Despite of draconian laws and high phrased court rulings torture and humiliating handling of citizens in different form still persists. There have been no improvements in the attitude of cops and they still tend to use the same old ways to gain confession. According to a report of Asian Centre of Human Rights (ACHR)[19] India witnessed 1674 custodial deaths out of which 144 were in police custody and 1530 in judicial custody between April 2017-Febrauary2018 which estimated to about 5 deaths per day.[20]

However some of these deaths occurred naturally and in case of a person dying of natural death, a Sub-Division Magistrate, Provisional Civil Service ranking officer conducts an enquiry under Section 176 of CrPC and no compensation is granted however States like Tamil Nadu and Andra Pradesh are an exception since they grant 20,000/- Rupees as compensation. In cases of Unnatural death under various sections of Indian Penal Code (I.P.C.) like Section 309(attempt to suicide), Section 304(Negligence), Section 302(Murder) under Section 176 of CrPC victims of such deaths are granted with suitable compensation and the amount is higher in cases of death of a Schedules Caste(SC)/ Scheduled Tribe(ST).

After Emergency in year 1975-1977 cops showed their barbaric and demonic side during nationwide lockdown due to Corona virus (Covid-19) pandemic starting from 25March, 2020 by thrashing people brutally who were found out on the streets to buy essential commodities. Thought PM him self send the message asking citizens not to panic after failure to explain how to access to essential things. The efficient and co-operative police welcomed the people with lathi charge, assaulting doctors and slapping vegetable vendors and extorting bribes from wherever possible.

India witnessed at least 173 assault cases and 27 lockdown deaths in 1st week of lockdown.[21]. Police lathi charged without even listening to the innocent people and it is this reason why nation witnessed too many casualties by police violence. One of the most brutal and merciless incident was when a father-son duo was first arrested then sexually assaulted and killed in police custody in Tamil Nadu, also they were first denied medical and legal assistance but later on they were provided with medical facilities but it was too late already since both of them succumbed to their injuries. After few days a auto driver lost his life after cops assaulted him. A man in Kota, Rajasthan was thrashed by police for standing outside his house also when his wife tried to stop cops she was abused and misbehaved. It is shame that police still believe in violence instead of using other techniques.

During investigation police usually take the defense of sovereign duty and thus it makes them wake away with the liability therefore there is a strong need to impose harsher punishment on those found guilty.

 Suggestion

Throughout the years it has been observed that judicial mechanism is severely entrusting on the constitution, bills and acts and sometimes international norms to implement rule of law. Also powers and new strategies are being used. Supreme Court has extended the protection of rights enshrined in the basic structure of the constitution. The accord of indemnity has advanced as arbitrary relief but still there is a need to enact law which governs all the angles of police violence.

Amend S. 53, 54 of CRPC so that medical examination be made compulsory at the time of arrest or detention without any manipulation and should be video-filmed, so that police do not daunt detainees and it will save police from false allegations of torture. Amend S. 43 of Police act such that police don’t aver immunity while executing a warrant in case of illegal detention. It has to be observed that procedural safeguard Under S.197 CRPC is commonly abused by not permitting the complaint to be indexed, thus being a primary obstacle. Registration of each who has been detained including date, time and reason without any manipulation and it should be regularly reviewed by magistrates. A major problem is that Judicial Magistrates are less in number therefore lower courts should also be given similar powers.

A high level commission is to be established to examine the complaint of police and custodial abuse. Magistrates should direct the police to do investigations in judicial custody instead of police custody and all the examinations shall take place in the very place. Elongated detentions should be abolished[22]. ‘If crimes our committed by ordinary people, ordinary punishment should be imposed but if the offence is committed by policemen then harsher punishment should be imposed since their acts are totally contrary to their duties’ as held in Prakash Kadam vs. Ramprasad Vishwanath Gupta[23].

Implement ‘Prevention of torture bill 2010’, after making certain amendments to it. Investigations into matter of torture can also be made in accordance with ‘Istanbul Principles’.

Condition of jail/remand rooms should also be maintained and hygiene, medical facilities of detainees and prisoners should also be improved as said United India Insurance Co. Ltd. v. Manubhai Dharasinhbhai Gajera[24] that improvement of health in an  obligation on the part of state.

New training methods should also be provided and cops should be educated/re-educated about use of weapons. The Indian Police act should be reconstituted giving emphases on human rights. The most important is following the guidelines given in D.K. Basu case since it gave broad procedure concerning arrest and detention.

Conclusion

The republic of India has always witnessed brutality by law enforcement administration in order to either maintain rule of law or to gain bribe. The technique of brutality is nothing new which Indian citizens are experiencing. From the days of East India Company to the days of current Indian Prime Minister Mr. Narendra Modi, the only thing which is consistent in police is the filthy and cruel way of working. The process of investigation by police is slow and most of the time corrupt and biased which eventually leads to the police practicing third decree method on the accused to gain his/her confession. Many times in order to gain this confession police exaggerate force and the person suffer serious injuries and die as a consequence of these injuries. The only thing which has evolved with time is that police has now introduced new techniques to torture the accused in police custody. In the British era the weapons and brutality was employed to maintain the dominance of British but in the contemporary world brutality is practiced for many reasons one of them being personal vengeance in the name of sovereign duty.

Not only custodial torture but also cases of false encounter have come into limelight recently. Unfortunately the cops get away without any liability by waiving off the defenses like self defense and necessity by saying that the victim of false encounter was either trying to run away or started firing at the police themselves by snatching away their guns. Woefully there are no witnesses to prove that police committed such atrocious crimes leading to encouragements of other police officials to practice brutality like that in the case of encounter of Famous gangster Vikas Dubey, where police said that the gangster after firing at the police started running away and in the clash the gangster got shot.

By discharging such acts the police is not only creating an environment of hatred but also making people losing faith in legal mechanism. It is time we decide if we want rule of law or rule of police.


[1] Way of working.

[2] Peter K. Manning and John Van Maanon(Eds.), policing a view from the street (1978).  

[3] Safety of people is the supreme law.

[4] 1997 SC 610.

[5] Torture commission (1885) torture commission report: Parliamentary papers 420, National archives, New Delhi, India.

[6] 1993 2SCC 746

[7] 1991 ACJ 888

[8] AIR 1990 SC 709

[9] AIR 1995 SC 1965

[10] 1979 AIR 185, 1979 SCR(1) 810

[11] 1999 Cri LJ 2231

[12] 1981 SCR(2) 516

[13] Source: NHRC, annual report 2001-2002, Annexure 7, p. 360-361.

[14] 2012 SC 1485

[15]1978 AIR 1675, 1979 SCR(1) 392   

[16] AIR 1997 SC 610

[17] Central act 10 0f 1994

[18] Protection of Human rights act, 1993 S. 12(6)

[19] Campaign against torture in India(June 2018)

[20] Data of year 2019 has not been published yet

[21] Uncat.org/banner/police-brutality-unwarranted-deaths-covid-19-lockdown

[22] Amnesty International, the impact of violence against women, Mimeo(2001) p.15

[23] (2011) 6 SCC 189

[24] (2008) 10 SCC 404

Author: Varchaswa Dubey (JECRC University)

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