• Fariha Salman

POLICE BRUTALITY IN INDIA: CAUSES AND CONSEQUENCES

“The police of my conception will, however, be of a wholly different pattern from the present-day force. Its ranks will be composed of believers in non-violence. They will be servants, not masters of the people. The popular governments have to issue necessary orders, but meanwhile, the jail staff can do not a little to humanize their administration”. – Mahatma Gandhi in his book, ‘The Voice of Truth’


Abstract


This paper is an attempt to analyze the nature of Police Brutality in India and to delve deep into the possible reasons for the same. The paper talks about the existing police laws which are dated back to The Police Act of 1861, the colonial nature of this act, misuse of power, and the status quo as police brutality cases are on a rise. The paper also raises the argument that it is high time we put reforms in place across our police laws and structures.


Limitations of the study


The paper only takes into account the State Police and not the Forces coming under the central government. The research conducted is based on secondary data available on the internet and talks mainly about police brutality based on discrimination by misusing the loopholes in the law, in the context of the violent attitude of the police towards protestors and custodial deaths in India.


Background


India is a union of 28 states and 8 union territories. Under the provisions of Article 246 and Schedule VII of the Constitution of India, Police is a State subject, meaning its administration is the responsibility of the respective States. The ideal role of the Police would have been to protect its citizens in tandem with the law, however, that’s not what the Police is expected to do in reality.


Police Brutality- Violence and Custodial Death


It is no secret that Police Brutality and torture have very much become a part of most investigations and occur frequently in India. The former Minister of State for Home Affairs, Mr. G Kishan Reddy, in his written reply to a question in the Lok Sabha, stated that in India, 1,697 custodial deaths were registered between April 2019 and March 2020 alone, out of which 1,584 deaths were in judicial custody, while the rest 113 were in police custody. As per the data shared by the National Crime Reports Bureau (NCRB), between 2001 and 2018, 1,727 persons died in police custody. This includes both persons on police/ judicial remand and those just arrested and not produced before the court. Only 26 policemen were convicted in this period for such deaths.


However, the data on police brutality has been massively underreported and is far from reality. According to Mr. Reddy, Uttar Pradesh witnessed the maximum police brutality cases with 400 custodial deaths, followed by Madhya Pradesh, which saw 143 custodial deaths. On an average, between April 2019 to March 2020, five custodial deaths took place every day in our country.



Source: National Crime Records Bureau (NCRB)


The recent case of Jeyaraj and Bennicks in Tamil Nadu shocked the nation and sparked massive outrage and multiple debates on rising Police Brutality cases across the nation. On 19 June 2020, a father and son allegedly kept their shop open, violating state-imposed COVID-19 restrictions, for which they were arrested. Two days later, they died in the hospital after having been mercilessly tortured by the police in custody. Reports claim that they were sexually exploited as well. (Chana, 2021). Other than that, violence misuse of power by the police is not new, be it in terms of using tear gas or beating up protestors. As evident from the case of Jeyaraj and Bennicks, police tend to chose violence over things as petty as violating COVID protocols. Similar is the case of Faisal Mohammad, a vegetable seller from Uttar Pradesh, whowas dragged by the UP Police to the police station, where he was beaten to death. He was arrested on charges of violating COVID protocols as well.


Here, it is important to note that custodial deaths violate Article 21 of the Indian constitution, which states that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” This is in addition to violating multiple human rights.


A critique of our current Laws

1) Police Act of 1856:


After the revolt of 1857, the British Government decided to bring in a new police administration in India to prevent such revolts in future. The intent was to create fear amongst people. Post-independence, India continued to follow the same strategy. It was only years later in 1977 that the National Police Commission raised concerns and suggested a few reforms in the Act. It drafted the Model Police Act in its Eighth Report of 1981. Unfortunately, this proposed bill, which aimed at reducing the misuse of police power, was not adopted by Indian states. The NPC also took into consideration the regular interference of politicians, who often make the police work as per their will, violating laws and human rights. The police force was also blatantly misused for political purposes during the Emergency period in 1975-1977.

The lack of accountability allows police to often get away with police brutality and the same is causing the public to lose confidence in the police. The Police Act of 1861, brings the Police directly under the supervision and accountability of a State Government, which means the Police Officers are to abide by what the respective state governments ask them to do. It is a known fact, that in the work of police, there are many political considerations too. At the present time, the Head of Police (Director General/ Inspector General) serves their tenure at the pleasure of the Chief Minister of the respective state. The officer may be removed from the post at any time without providing any reasons. In the words of H.Kumar, “Such a state of affairs has resulted in widespread politicization of the police where increasingly, allegiance is owed not to the law but to the ruling political elite”.


2) Common Misuse of Law: As per Section 49 of the Indian Penal Code, restraining an accused in necessary situations is permissible. At face value, the phrase ‘necessary restraint’ seems to do the trick which could be seen in the case of George Floyd, or in the case of P. Jeyaraj. However, delving deeper into the analysis of the statutory wording, the word ‘necessary’ implies that police officers have the right to decide what is deemed ‘necessary’ in a situation or not, which is a major loophole and can violate human rights.


The Code of Criminal Procedure, 1973 (CRPC) provides safeguards to government servants in order to protect them while they perform a public duty. Police officers have that protection under Sections 197 and 132 of CRPC. However, the law, which intended to provide protection, has been misused by the states. A landmark judgment, in this case, is P.P. Unnikrishnan v. Puttiyottil Alikutty, where two police officers were accused of keeping a person in custody illegally and torturing him. The State of Kerala defended the officers under section 197 (1) of CRPC, however, the court mentioned illegal detention of a person for more than 24 hours without an order from the court is a clear misuse of power and abuse of duty. Hence, such acts will not be covered Section 197.


3) The National Human Rights Commission (NHRC):


The NHRC was set up on 12 October 1993 under the Protection of Human Rights Act, 1993. It is the only body to regulate police brutality and deals with cases pertaining to violation of human rights. The NHRC has the power to intervene in the judicial proceedings, collect evidence, etc. All custodial deaths are to be reported to NHRC, which then scrutinizes the cases to decipher the reasons behind and the possibility of the use of police brutality in their deaths.


However, a major concern is that the NHRC is allowed only to give ‘advice’ to the Government and there is provision under the law on implementation of such ‘advice’, signifying that the State Government can very easily neglect it. However, the NHRC can take support from higher courts.


Other Issues:


:Understaffing of the police force is a major problem in India. Asper UN recommendations, a ratio of one police officer per 222 people is preferable. However, in India, we have 144 police officers for every 1 lakh citizens. In the year 2017, the sanctioned strength was 2.8 million but only a 30% vacancy rate were available which means only 1.9 million were employed.


Lack of funds : Nearly 3% of India’s GDP expenditure is on the police force. Decreased spending on police in recent years is adding to the resource crunch. Between fiscal years 2011 and 2015, states spent 4.4% of their budgeted expenditure on policing on average, but this has reduced to 4% over the last four years, according to PRS Legislative Research.


Lack of adequate infrastructure : The funds allocated are not completely utilized. In the year 2015-16, only 14% of such funds were used by the states.


Selection Criteria and lack of Incentives : Police officers are usually underpaid and very often, the constables who account for nearly 86% of the total state police force get only one promotion in their entire tenure. Thisalso reduces their motivation to perform better, and indicates that selection criteria also needs to be improved.


A case study: Prakash Singh Vs. Union of India- The Supreme Court Judgement of 2006


In 2006, after the landmark judgment of Prakash Singh Vs. The Union of India, the Supreme Court issued directions to state and central governments to highlight and address the problems in police laws. The Supreme Court directed all states to constitute a State Security Commission in order to avoid unnecessary control over the police, asked them to lay down broad policy guidelines, and to evaluate the performance of the state police,. The SC also encouraged them to enact a new legislation if they did not have one. After these guidelines were issued, many states enacted specific legislation for the police force. But there have been some states who have still not complied with these guidelines of the Supreme Court. The states of Andhra Pradesh, Arunachal Pradesh, Goa, Jammu & Kashmir, Jharkhand, Madhya Pradesh, Manipur, Mizoram, Nagaland, Orissa, Tamil Nadu, Uttar Pradesh and West Bengal still do not have any legislation in place. Despite the orders issued by the Supreme Court, the bills in a few of these states’ parliaments are still pending, and have not been passed by their legislatures.


Conclusion:


“Independent India must choose whether the people should rule or parties should rule. The Constitution has laid down that the people should rule, so the police must also be the people’s police”- Khosla Commission, 1968

The idea of having a police force is to keep its citizens safe in accordance with the law. Never was it decided that the police force would themselves be able to violate the law in order to maintain it. Various efforts to bring a reform in the existing police laws have been made. Despite that, the states have not been abiding by it. However, with the rise in police brutality, is concerning. The colonial nature of our police laws needs to be re-considered before putting the entire blame on the officers as this is how they are trained and that is what is expected out of them. The practice of police brutality is often celebrated by the political leaders - as that in case of Uttar Pradesh, where incumbent sitting Chief Minister Adityanath, on Republic Day applauded the sheer violation of laws by police forces by saying “either be sent to jail or killed in police encounters”. Police reforms with right training and incentives should be considered.

As is rightly said- “The term ‘police force’ that the British created to rule over Indians should be transformed into ‘police service’”- Sanjiv Krishan Sood - Border Security Force(2019)


Cover Image: Source


About the author: Fariha Salman is a first-year student of M.A. Public Policy at the O.P Jindal Global University.

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