Accountability of Police
By Kishan Dutt Kalaskar
The incidence of police brutality, abuse of power and pre-trial detention in India has always remained a serious issue of human rights violations and has increased manifold in the recent past. The police are the most important law enforcement agency entrusted with preventing and detecting crime within a country. The police must maintain law and order in society and ensure peace. More often than not, one comes across news of manhandling and illegal detention by the police of innocent persons. There is mounting national and international pressure to protect and conserve certain basic human rights of all individuals.
Physical and verbal abuse
The recent case of custodial death in Tamil Nadu’s Tuticorin of the father-son duo, P. Jayaraj and J. Benicks, has brought into light the need for generating awareness regarding the protection of human rights of persons in custody. Jayaraj and Benicks were taken into custody for violating Covid-19 curfew hours and died in custody two days after their release. The family suspected that they had been tortured. According to the family, the duo was taken to a government hospital on 20th June 2020, where they were found in bad shape, and their pants were soaked in blood. As the gruesome details became known, the case sparked outrage on and off social media and soon gained national attention, and the Madras High Court took up suo moto cognizance of the matter and directed the Kovilpatti Judicial Magistrate to inquire into the matter. On the basis of a report of the local Magistrate investigating the deaths, the High Court stated there was a prima facie case of murder against the main accused. The Court also cited the serious injuries listed in the post-mortem report and testimony of the eyewitness, a female constable at the police station. Hours later, the five policemen were arrested.
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According to the Magistrate, the CCTV footage of the assault had been erased, and the officers had initially refused to submit the batons they had used to beat the two men with. The officers who were accused in the deaths were initially transferred, and, as demands for more severe action grew, they were suspended.
There are have been several instances where the police have severely manhandled the citizens irrespective of whether they have been arrested or whether they are innocent bystanders who approach the police to register a complaint. For instance, in April 2020, Mohammed Rizwan was beaten with lathis and rifle butts for venturing out of his home, attempting to buy biscuits. After such gruesome treatment was meted out to him, he succumbed to injuries after two days. Legally speaking, no police officer can physically beat any person to make an arrest or compel their production in a police station.
Available Remedies
Denial of basic rights to persons in custody constitutes an ascertained blow on human dignity, having the effect of destroying an individual’s personality. The Courts in India have been vigilant against the infringement of the human rights of those detained by giving a liberal and expansive interpretation of life and personal liberty. Obtaining an effective remedy for complaint against the police is integral so as to protect the rights of citizens. According to the National Crime Bureau, there are about 54, 916 complaints were reported in 2015, out of which only 16,308 complaints were inquired into, but only 1122 police officers were actually prosecuted, and only 25 of them have been convicted. There seems to be no logical explanation for such poor rates of conviction of police personnel.
- Police Complaint Authority
In the landmark judgement in Prakash Singh v. Union of India, the Supreme Court, upon an extensive review of past authorities, cases alleging misuse of powers by the police and reports of various Commissions set up to give recommendations for greater accountability of police in India, directed inter alia, the establishment of a Police Complaint Authority (PCA) in all states by the enactment of appropriate legislation. Consequently, in October 2006, the Ministry of Home Affairs set up a committee known as the Soli Sorabjee Committee for producing a draft Model Police Bill to be incorporated by all states in preparing their respective legislations dealing with the police in the State and replace the Police Act, 1861. The Model Bill lays down a detailed section establishing and regulating authorities dealing with complaints against the police.
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The Court had prescribed the minimum basic standards that the Bill must entail for the oversight of police. The Bill creates a PCA comprising of a Chairperson who shall be a retired Judge of a High Court and five other members at the state level. A Commission is also established at the district level for better administration and effective disposal of complaints against the police. The PCA is authorised to investigate into complaints alleging any type of misconduct against any police officer who is of or above the rank of Superintendent of Police and into complaints against officers below the rank of Superintendent of Police alleging death, grievous hurt, rape or attempt to rape against a woman in police custody or extortion, take of land and/or house and incidents involving severe abuse of authority or any other misconduct referred to it by the State Police Chief or the District Authorities. In respect of matters being inquired into by the PCA, the Authority shall have the powers of a civil Court under the Code of Civil Procedure, 1908. The Commission can also take suo moto cognisance of the alleged abuse.
- Liability under law
This liability finds its basis in the constitutional and administrative law against the violation of the fundamental rights of the citizens. A police officer abusing his authority to violate the right to life and liberty, protection against discrimination, protection against arbitrary and illegal detention, freedom to move freely throughout the territory of India etc. can be held liable under the Constitutional law and can be directed to pay compensation to the victim for the harm or injury caused by him.
In Sebastian Hongray v. Union of India (1984), the Apex Court granted compensation to two ladies who were tortured, agonised and harassed when they went to file a missing person report of their husbands. These women were taken to an army camp in Manipur by army officials, and their missing husbands were never produced. Similarly, in Saheli v. Commissioner of Police (1990), compensation was granted for causing death by beating up a nine-year-old child in custody.
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In UttarakhandSangharshSamiti v. State of UP (1996), it was held that acts of wrongful restraint and detention, the deliberate shooting of unarmed agitators, planting of evidence to show false recoveries, committing rape, tampering with evidence and harassing an individual cannot be said to be acts done or purported to be done in the discharge of a police officer’s official duties. Accordingly, exemplary damages were awarded to the persons killed as well as women raped or molested by the police.
- Action by the National Human Rights Commission
Under the Protection of Human RightsAct, 1993, the National and State Human Rights Commissions are bestowed with the power to take cognisance either suo moto or on a complaint made to it alleging violation of human rights by any person. In pursuance of this power, the NHRC has the authority to intervene in any proceedings against the police officer and make recommendations in this regard. Acts of custodial violence and death, false encounters, atrocity by the police officer, cases relating to women and children can be reported to the NHRC for scrutiny.
The Commission has consistently pointed out that the hostile attitude of law enforcement agencies, in turn, breeds lawlessness and contempt for the enforcing authorities. One way of ensuring the reduction of such instances is to ensure strict action, including prosecution, against the perpetrators of all forms of custodial violence. The Commission has also recommended disciplinary action against the deviant officials and granted monetary relief to the victims or their next of kin.
Conclusion
With the steady increase in the number of cases of police brutality in India, it has become an inordinate concern of human rights violation that requires immediate action. It is highly inappropriate that the police take the law into its own hands and abuses the process of law. The statistics show that the rate of police accountability and conviction of such officers is considerably low. Police being the primary law enforcement authority and an integral structure of the State, abuse of legal processes and powers by it is highly dangerous to democracy and can lead to a state of anarchy.
It is essential that legislative and executive actions are taken to ensure a free and fair investigation or inquiry into the matters of police atrocities. Many a times, the officials responsible for such gruesome acts go unpunished. Senior police officers should not protect the persons responsible for custodial crimes. An attitude of sensitivity towards human rights should be inculcated through training and awareness programmes. Mechanisms should be developed to properly investigate the matter by setting up a fair and impartial Committee to look into the matter. It is required that prompt and effective action is taken against the persons responsible for human rights violation, and mere suspension must not be taken recourse to.
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Although the Supreme Court directed the State legislatures to established a PCA at the state and district levels, only 18 states have done so. Furthermore, there is a severe lack of awareness of the existence of the PCA amongst the general public. It is also highly recommended that the appointments to the Authority are made by an independent, unbiased and impartial body. Another major drawback of the PCA is that its recommendations are not binding and merely of a directive nature. Nonetheless, the establishment of PCA is a step in the right direction; effective implementation and awareness would protect and preserve the rights of the public and the spirit of democracy.
Recently, to protect the interests of persons brought into the police station for investigation, the Supreme Court in Paramvir Singh Saini v. Baljit Singh and Orsrr.,directed the government to ensure the installation of CCTV cameras and recording equipment in all interrogation rooms, lockups used by various investigative agencies
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