By Bhoomika Agarwal
Policemen so cherish their status as keepers of the peace and protectors of the public that they have occasionally been known to beat to death those citizens or groups who question that status.
– David Mamet
The events that took place in the last few months have raised a very essential question before us regarding the justifiability of brutality and the extent of police authority. Whether we consider the case of Hyderabad encounter, violence in Jamia Millia Islamia or police brutality in the times of COVID-19 pandemic (previously discussed on the blog here and here), all brings us to the same question that what checks do we have in place to prevent police from abusing their power?
Law authorizes the police to resort to the use of force only while exercising the right to private defence or otherwise when it is necessary to arrest a person accused of an offence punishable with death or imprisonment for life (section 46, Code of Criminal Procedure). Though the courts have laid down guidelines with respect to encounter killings and custodial deaths on several occasions, no law has yet been framed to protect the dignity of civilians from the barbarity of people in uniform.
The National Police Commission (NPC, 1977) and Padmanabhaiah Committee (2000) examined the intricacies of departmental accountability at great lengths. The NPC in its first report recommended that the majority of complaints against policemen should be dealt with by the Police Department itself. Whereas, Padmanbhaiah Committee stressed that the complainant should have access to an independent non-statutory authority headed by the District Magistrate in case the complainant is not satisfied.
In 1996, a petition was filed by a retired police officer, requesting the Supreme Court to direct the Union Government to frame a new Police Act ensuring higher accountability of police to the law of land and people. The Court in its judgment (2006) referred to the Sorabjee Committee Report and Ribeiro Committee Report, which had recommended that
“…there should be a Public Complaints Authority (PCA) at district and state level to examine the complaints from the public on police excesses, arbitrary arrests, and detentions, false implications in criminal cases, custodial violence, etc. and for making necessary recommendations.”
The Court directed the Government to set up a PCA and laid down the guidelines on the composition and functioning of the Authority.
However, very few states have taken steps to implement the Court’s order. In Delhi, PCA was established in 2018 pursuant to a petition filed by Common Wealth Human Rights Initiative in the Delhi High Court. Even Law Commission of India’s 262nd Report noted the need for implementation of directions issued by the Supreme Court.
Similar steps have also been taken by other High Court. The Uttarakhand High Court, in Arun Kukmar Bhadoria v. State of Uttarakhand, while framing guidelines to improve the condition of policemen, referred to Prakash Singh and observed that
“The recent incidents of death in stage-managed police encounters have once again underscored the need for a strong accountability mechanism. The proposed Complaints Authority, no doubt, would investigate any complaints in this regard, however, in order to totally eliminate this unacceptable practice, a professional accountability mechanism should also be institutionalized. Therefore, all cases of deaths in encounters, irrespective of whether a complaint has been made or not, should be inquired into by the proposed Inspectorate as an ongoing exercise to ensure police accountability.”
The National Police Commission also suggested for the removal of police officials from the veil of protection secured against any prosecution brought against them relating to the performance of official duties under section 132 and 197 of Code of Criminal Procedure. However, no steps have been taken yet in that regard.
With the growing control of Government over policemen, whether directly or indirectly, and no checks in place, the number of instance of excesses committed by police officials have increased substantially. In 1997, the then Union Home Minister in his letter to State Governments noted that
“…the popular perception all over the country appears to be that many of the deficiencies in the functioning of the police had arisen largely due to an overdose of unhealthy and petty political interference at various levels starting from transfer and posting of policemen of different ranks, misuse of police for partisan purposes and political patronage quite often extended to corrupt police personnel.”
Even the Supreme Court, in Prakash Kadam v. Ramprasad Vishwanath Gupta, while dealing with allegations against the police of contract killing a civilian very strongly observed that,
“In the Nuremberg trials the Nazi war criminals took the plea that `orders are orders’, nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake `encounter’, it is his duty to refuse to carry out such illegal order, otherwise, he will be charged for murder, and if found guilty sentenced to death.”
In his seminal work Introduction to the Study of the Law of the Constitution, A.V. Dicey had once noted that:
“With us every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justifications as any other citizen”.
Rule of law is a fundamental feature of our Constitution and no person, including those who are appointed to protect it, are allowed to degrade it and escape without any consequences on its violation. Various Committees have recommended separating police force from any type of political interference. In light of recent upheaval against the actions of the police, it becomes paramount to put in sufficient checks over instances of police brutality.
[The author is a third-year student of Amity Law School Delhi, GGSIPU.]
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