Written by Rishab S Kaushik and Samruddhi S Shetty of Symbiosis Law School, Hyderabad
A very important question before us was asked by Hon’ble Justice Krishna Iyer,
” Who will police the police?”
And it is extremely disappointing, that even after 39 years, we still continue to stand at a pedestal where we consider ourselves a ‘civilized society,’ asking ourselves the same question. The persistence of a harrowing fact, which goes on to demonstrate that those in charge of law enforcement frequently, openly ignore the rule of law, is clearly highlighted by recent events that have invited the anger of the entire country.
Police forces play a key role in maintaining and executing laws, solving offences and providing security for the country’s citizens. Police forces need to be well versed in a wide and populated country like India to serve their position well in terms of manpower, arms, forensics, coordination and transport support-system. They will require procedural flexibility to carry out their duties effectively and to meet reasonable working standards (e.g., controlled working hours and incentives for promotion), while being held responsible for inadequate results or abuse of power. The root cause of wrongful detention can be interpreted in terms of an immoral connection between the police’s unguided authority and the lack of responsibility and openness in their workings.
THE EMERGENCE OF POLICE ARBITRARINESS
Since the 1980s, the police tend to be more obsessed with the lathi-wielding mentality, and it has become the order of the day with its violence and use of third-degree tactics. The mounting abuses of the police and other oppressive policies are examples of human rights violations. For instance, the Police took a Satyagrahi into custody during the emergency period in March 1976 but no complaint was reported against him. He was held for a few days in unconstitutional confinement, through which he was subjected to various forms of intense physical and emotional cruelty. Madhya Pradesh really was a state that, during emergency procedures, a maximum number of inmates were held in custody. Political prisoners were held in Gwalior district jail along with infamous dacoits and allowed to be tortured by them. Hence it can be seen that the concept of Police Arbitrariness is not a recent phenomenon but has been emerged since the late 1970s.
According to the third report of the National Police Commission, arrest power is one of the key causes of police misconduct and almost 60% of police detention is excessive and unjustified. Even where the arrest is required, police do not follow the procedural standards laid down by the Indian Constitution and the Code of Criminal Procedure as found by the Supreme Court in various cases.
THE RISING NUMBER OF ENCOUNTERS: CUSTODY OF ACCUSED
Recently, a squad comprised of 10-12 cops went to arrest the deadly suspect identified Vikas Dubey from his Kanpur home on the night of 2 July. In more than 60 criminal cases of murder robbery etc., he was required in the meantime by several policemen who gave the advice of the raid as a result of the activity being martyred by 8 policemen. We have not seen such an action taken lately for any violence against the police. After nearly a week of hiding, Vikas Dubey was captured by the police at the Ujjain, Madhya Pradesh, and an STF team was sent to get him back to UP. While returning the vehicle overturned near Kanpur, where he tried to escape and was killed in self-defence, while Prabhat Mishra, Amar Dubey and a few more were executed by police in clashes. How Vikas Dubey was killed raised numerous difficult questions about the police’s Modus Operandi in our region.
NHRC reported 1,782 false encounter instances between 2000-2017, according to an RTI response, where Uttar Pradesh itself accounts for 44.55 percent of cases, nearly 750 cases. NHRC recommended that its government authorities provide the families of those who died in such situations with sufficient compensation.
In PUCL vs. the State of Maharashtra and another, the Supreme Court laid 16 guidelines to be followed in the circumstance of the review into an encounter. As the main highlight of the decision, a magisterial investigation was formed in all death cases in the process of police shooting. The supreme court ‘s rules do not make it necessary for NHRC to join unless and until there is question of independent investigation, but information about the incident must be submitted to the commission without delay.
A written petition was filed by lawyer Nandita Bharti in Allahabad high court’s Lucknow bench seeking direction to establish a statutory commission to investigate Vikas Dubey’s experience, which was denied by the court, stating that under a retired High Court judge, the state government has already formed a single-member commission.
CUSTODIAL VIOLENCE, BRUTALITY AND MURDER
There is a common saying, “To a man with a hammer, every problem looks like a nail” This quote deems fit to describe the current scenario for the Indian Police who strongly act upon every situation with a bit of violence. We have always known the Indian police authorities for having used their danda’s authority to make things operate their way, but this authority has some validity, and if not, Indian laws should keep the police workers responsible for their unconstitutional behaviour. Once again, the recent case of custodial torture and the death of a father-son pair in Tamil Nadu has triggered anger, mistrust, and fear among Indians. On 19 June 2020, the Shantakulam police arrested Jayaraj and his son Bennicks for breaking lockdown laws by holding their shop open for longer than the allowable time. The police abused them so violently that, on 23 June 2020, they drew their last breath. In such cases, even if the policeworkers were charged, they would only face liability as punishment for the extreme crime of custodial death. In another custodial death case, The High Court of Karnataka ruled in Smt. Soubhagya vs. the Chief Secretary of the State of Karnataka, that the sum of compensation must be retrieved from the convicted, and no other sentence was levied by the court.
More than 1700 persons faced custodial death in a study by the Hindu from 2001-2018, although the confirmed cases were only 810, of which only 26 police officers were charged, which means that the conviction rate is less than 4 percent in cases of custodial deaths. This occurs for many reasons; one such was mentioned by the supreme court in the judgement of Shyamsundar Trivedi that police who witness the offence remain silent in many instances or give false statements to save their colleagues. When one looks at the results, this realisation is further reinforced. The total number of custodial deaths in 2019 was more than 5 people per day.
The current Police Act does not even relate to the police’s responsibility for any form of wrongdoing, nor does it address the crimes committed by police officers on service, existence, excessive abuse, and brutality. While the police act, 1861 addresses the internal responsibility of police officers to their seniors for offenses such as cowardice, participation in other occupations, and unjustified abuse, and discipline is defined for up to three months of pay cuts and three months of incarceration, even without judicial interference. In comparison, there is no provision in the Act for barbarous acts such as custodial rape, abuse, and custodial murder. In the case of Vineet Narain, the judiciary issued guidance and instructions for fair prosecution of police officers beyond the Single Directive Mechanism, but Parliament reversed them.
FURTHER LEGAL JURISPRUDENCE ON POLICE ARBITRARINESS
Article 21 of the Indian Constitution which talks about protection of life and personal liberty states that:
“No person shall be deprived of his life or personal liberty except according to procedure established by law”
In the landmark judgment of Maneka Gandhi v. Union of India, the Supreme Court of India ruled that the process laid down by law concerning the liberty of an individual must be equitable and not arbitrary. Taking this judgment into consideration we can see how if any individually is arrested or is a victim to wrongful detention it will serve as a direct violation of Article 21 of the Indian Constitution.
The complainant an MLA was arrested and held in police custody in Bhim Singh v. Jammu and state Kashmirand was intentionally stopped from attending the Legislative Assembly session. The Supreme Court claimed that the police officers behaved knowingly, and so the court awarded justice to the applicant.
In the case of Nambi Narayanan v Sibi Mathews, the state police arrest was made without reported proof of espionage against ISRO scientist. Appellant, held, entitled to reward while physical torture is not claimed. The SC holds that
“The integrity of a person is an inseparable facet of his right to live with dignity, and that the fundamental right of a scientist under Article 21 has been seriously impaired.”
Paragraph 31 says that,
“As mentioned earlier, the whole trial undertaken by the State Police has been malicious and has caused the appellant considerable persecution and unimaginable anguish.”
In the case of Joginder Kumar v. State of U.P, he was held for a few days in unconstitutional confinement, through which he was subjected to various forms of intense physical and emotional cruelty. Madhya Pradesh really was a state that, during emergency procedures, a maximum number of inmates were held in custody. The Apex court had also held that reputation of an individual is an unrepeatable facet of an individual’s right and no authority has the right to violate it in any form, this was held in the case of Kiran Bedi v Committee of Enquiry.
There is also an international violation which India bound by, the International Covenant on Civil and Political Rights under Article 9 states that:
“Everyone has the right of liberty and security of a person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”
“The rule of law and lively democracy can be sustained only by the laws that govern the police and the police operating strictly within the contours of the corpus juris.”
- Justice V.R Krishna Iyer
We lose many lives every day due to police brutality, like Jayaraj, and the police officers committing these violent actions are not even challenged by the authorities. As discussed above, nearly every measure taken to keep the police accountable has failed because the government is not prepared to lose control of the police, and institutions such as PCA and NHRC cannot help citizens without political freedom. The government desperately needs to amend current provisions to ensure police transparency and can separate itself from several agencies such as PCA and NHRC. It is high time for the government to adopt NPC guidelines and directions on police reforms issued by the Supreme court. Causing death is a criminal act and under criminal law immunity is granted to them under CrPC Sections 197 and 132, any police officer causing death should be prosecuted. For investigation and preservation of law and order, two different divisions would be required. Nearly 90 percent of the police department does not undergo human rights training, so it should be made obligatory before joining the unit.
We as a society are the first ones to applaud the filmy move made by the police when someone is encountered on a rape case, regardless of the credibility. The theory of innocent presumption is all-encompassing. It’s high time we consider why we always need a Manisha or a Nirbhaya to make the necessary adjustments to improve our penal provisions? Before we see another Jayaraj, Benicks, or Vikas being mercilessly assassinated by the most entrusted authorities, we need to avoid casting curtains and seek action on the same, we stand and fall together as a society.
 Aadhyaa Khanna and Chetan Chawla, “The Enshrinement of Custodial Violence in India“, Bar and Bench on Jul 17, 2020. Available at: https://www.barandbench.com/apprentice-lawyer/the-enshrinement-of-custodial-violence-in-india (Last visited on 30th Sept. 2020.)
 Katar Singh v. State of Punjab, 1994 3 SCC 569.
 Human rights in India, Sub- Committee on International Organization of the Committee on International Relations, U.S. House of Representatives, (1976).
 Joginder Kumar v State of U.P, (1994) 4 SCC 260.
 Rajesh Kumar Singh, Vikas Dubey Encounter, Hindustan Times, Available at www.hindustantimes.com/india-news-up-govt-forms-judicial-commision-to-probe-kanpur-ambush-vikas-dubey-encounter/story-odRx9RjUwBHaK6Bkrkc6no_amp.html (Last visited on 30th Sept. 2020.)
 Phalguni Rao, Feb 02, 2018, www.firstpost.com/india/nhrc-registered-1782-fake-encounter-cases-between-2000-2017-uttar-pradesh-alone-accounts-for44-55-4332125.html/amp (Last visited on 30th Sept. 2020.)
 Protection of Human Rights Act 1993, section 18.
 People’s Union for Civil Liberties & Ors. VS. State of Maharashtra, CDJ 2014 SC 831.
 The criminal procedure code 1973, Section 176
 Smt. Soubhagya vs. the Chief Secretary of the State of Karnataka, 2001 CriLJ 238
 State of Madhya Pradesh v. Shyamsunder Trivedi, AIR 1997 SC 876.
India: Annual Report on Torture 2019, Available at: http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf (Last visited on Sept. 5, 2020)
 Vineet Narain & Others v. Union of India & Another, (1997) 1 SCC 226.
 Indian Const. art 21.
 Maneka Gandhi v. Union of India, 1978 AIR 597.
 Bhim Singh v. State of Jammu and Kashmir, AIR 1986 SC 494.
 Nambi Narayanan v. Sibi Mathews, (2018) 10 SCC 804.
 Joginder Kumar v State of U.P, (1994) 4 SCC 260.
 Kiran Bedi v. Committee of enquiry, (1989) 1 SCC 494.
 international covenant on civil and political rights 1996. art.9
 Quote by Justice V.R Krishna Iyer in his book Off the bench, available at: https://jansatyagrah.in/system-reforms/menace-arbitrary-detention-india/ (last visited on Mar 13,2020).
Image Courtesy: Times of India