The LexGaze Weekly - COVER STORY

Perpetrators in khakhi: licensed to beat, abuse and kill?

Ms Preeti Ahluwalia

Jul 04, 2020

Issue 3

The debate over police brutality in the United States exploded in nationwide protests over the hard-hearted killing of an unarmed African-American man George Floyd, at the hands of Minneapolis police on May 25, 2020. While discrimination continues to pestilence America, this episode has captured the attention of people around the world. Surprisingly, this has failed to spark a debate about instances in India of police bias, unfair treatment and brutality, as well as selective harassment of particular communities. The images from the past protests against the Jamia Incident in December 2019(Centre’s Citizenship Amendment Act and National Register of Citizens, the country observed a crude abuse of power when police stormed the gates of the University to forcibly allay the students protests), Northeast Delhi riots in February 2020 (Victims narrated their spine-tingling ordeal where the police jostled lathis in their mouths) and Police Violence During Nationwide Lockdown, April 2020 (just a week into the lockdown, and the hungry and homeless migrant-workers were surfaced with gruesome brutality at the hands of police) will remain blistered in our memories. While several Indians jumped to call out the perpetrators of discrimination abroad, their long-drawn silence over the protests in our country was deafening.

Police brutality is obtrusively widespread in the Indian context, and the last six months are a witness of this. In 2019, a study was conducted titled, Status of policing in India, which interviewed nearly 12,000 police officers about their tendency to use violence. The study revealed that the dominant perceptions among some police officers were found to be least likely to use violence. However, the rest justified violence by assuming their role as the Punisher. Nearly fifty percent of Indians had witnessed police brutality as per ‘Status of police in India Report of 2018’. The well-known coldness to police brutality might have something to do with the societal norms in the cultural correction of misbehavior through violence. This is likely exposed to police behaviour, where they take it upon themselves to correct societal errors.

It implores the question, whom do we turn to when the protectors themselves turn into perpetrators?

Keeping the above in mind, it is imperative to comprehend the framework for pursuing grievances against such acts committed by police officers. There are two existing mechanisms i.e. Internal Accountability Mechanisms (IAM) and External Accountability Mechanisms (EAM) for calling the police account for their actions. The IAM for holding individual police officers accountable for their actions are contained in the Police Act, of 1861. Since ‘police’ is a state subject under the constitution, penalizing proceedings for errant police officers such as suspension, removal or deduction of salary is provided under respective state enactments. Since most state enactments are based on the Police Act of 1861, Victorian-era legislation, under which disciplining the police was not a priority. A usual plea made by the police officers is that the state, being an abstract body, can do no wrong and the actions of the state cannot be imbued with any ulterior motive. In the State of Gujarat vs. Kishanbhai (2014), the apex court held that the plea of sovereign immunity is based on old feudalistic notions of justice that does not exist in the realm of the welfare state, therefore, for all the wrong reasons, if an innocent person is subjected to suffer the ignominy of criminal prosecution, the erring officials must be punished departmentally.  However, these proceedings, too, are corrupted by the lack of independent and impartial oversight. On the other hand, the authority of police leadership in India has been eroded over time by political interference, leading to loss of discipline in the force and the promotion of a tendency at different levels within police to seek outside patronage for rewards and to be shielded against punishment. This is one of the major reasons for the decline in the effectiveness of departmental mechanisms to ensure police accountability.

One of the forms of external mechanism for holding the police accountable for such acts is through the judiciary. The police can be held liable under criminal law, public law or through private tortuous liability. The complainant can file a criminal complaint against the concerned officer for offences under the Indian Penal Code, 1860, however, there is no mechanism for an independent investigation, which means no police officer will register First Information Report (FIR) against their colleagues. Another safeguard under Section 197 of the Criminal Procedure Code, 1973, is also often misused. Since 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. Another means of holding the police accountable is ‘The Protection of Human Rights Act, 1993’ (the act)and the National Human Rights Commission, 1993 (NHRC). However, the commission has expressed their “unhappiness” by certain state human rights commissions over the difficulties they are experiencing in terms of lack of support, both financial and otherwise.

Summing Up

Providing a sense of security to the ordinary citizens and attending to their grievances is dependent on the establishment of a police force. However, such a system does not exist in India. If we go back in 2006 when the apex court in the famous case of Prakash Singh vs. Union of India directed states to establish Police Complaints Authorities at the state and district levels and an independent appointment mechanism for the members deciding complaints was also provided. However, due to the weak implementation, these directions of the apex court have fallen on deaf ears. In 2010, the Justice Thomas Committee appointed for monitoring compliance with the Prakash Singh judgment expressed disappointment in its report. Further, in 2013, the Justice Verma Committee was formed after the case of Nirbhaya gang rape, which also received such non-compliance in its report. Lastly, in 2016 in a NITI Aayog document on police reforms in India betrays that very little has been done to comply with the binding directions laid down by the apex court. Thus, the states need to implement the guidelines laid down by the apex court.

In my opinion, apart from merely flagging concerns, it is crucial to take policy actions that deconstruct police brutality and curb its regulation. There is a growing need for a lawful authority that will monitor police’s exercise and enforcement of laws. According to me, there are two directions in which the notion of police reforms must be pursued: one is to establish statutory institutional arrangements, which would ensure the power of superintendence of state government over the police force is limited to guarantee that police performance is in strict accordance with the law. The EAM should be intensified and improved. Besides, new mechanisms, working independently to monitor the functioning of the police and to inquire into public complaints against police, must be established. The performance of the police as an organization and the behaviour of police officers as individuals both need constant monitoring. The other direction is to think in terms of doing all that can be done to reinforce the policing under the existing setup. The carte blanche enjoyed by the police officials must be urgently soothed by modern reforms so that only rule of law succeeds and not the rule by force.

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