Policing the Police: A Desirable Desideratum
Written by: Supriya Aggarwal, Student, University Institute of Legal Studies, Panjab University, Chandigarh
“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 police in India have been vested with wide-ranging powers so that it could efficiently carry out the two primary functions of prevention and investigation of offences falling under its exclusive domain. The indispensable role it plays in the maintenance of law and order in the society has always been commendable. Being the most ubiquitous organ of the government, it is expected to be the most accessible, interactive and dynamic organization in the societal landscape. But the recent trends in the working of this branch have been questionably topsy-turvy, may it be in the disguise of #blacklivesmatter protests in the US or a potpourri of umpteen instances of police brutality witnessed in India. What could be more disheartening than the fact that those bestowed with the duty to uphold the principle of justice are the ones facilitating its miscarriage? The fabled long arm of law, thus seem to be mere travesty nowadays. Rather than serving the interests of the public, police officers are assuming charge as puppets of politicians. A litany of events is hence responsible for the piecemeal degradation of policing gestalt in our country. On this pretext, the further sections explain the continuum of such events broadly.
DEFYING PROCEDURAL JUSTICE IN THE HATHRAS TRAGEDY
First the brutal crime, then the brutal probe- Hathras tragedy has been horrendous throughout. A 19-year old dalit woman was brutally assaulted and raped, allegedly by four men of upper caste, due to which within two weeks of the incident, she succumbed to the injuries. Strikingly, in this case, the role of the UP police has been veritably egregious, from the mid-night cremation of victim’s body sans her family to police concluding that rape never occurred- the complete process was deeply flawed. Driven by caste prejudice, at the first place it even refused to file an FIR in such heinous offence and ultimately in a bid to remove the evidence (Section 201, IPC), hastily disposed of the victim’s body by cremating it in the dead of night depriving her of a decent burial (Art.21) and disallowing the grieving family even to see her one last time, let alone performing her last rites. When a case of sexual assault gets registered, it is the duty of the police to get the medical examination of the victim done as early as possible. But the FSL report relying on which police claimed that rape could not be established because of lack of any trace of sperm, was conducted after almost a week when the incident took place. The lifetime of the sperm is 24-72 hours, given that the victim has not freshen herself up. Additionally, Section 375, IPC states that in order to constitute rape, evidence of penetration -not ejaculation- is necessary. On September 22, the victim gave a dying declaration [Sec.32(1),IEA] to a magistrate (Sec.164,CrPC) in Aligarh before her death in which it was stated that she was raped and also revealed the identities of the four accused. Albeit, its admissibility shall be a question left to be decided by the Court. Moreover, the narco-analysis test and polygraph test of the victim’s family which the police pressed on to conduct is in contravention of right against self-incrimination [Art.20 (3)]. In Selvi v. State of Karnataka, the SC held that while conducting such tests, the consent of that person or presence of an element of voluntariness is a pre-requisite. These instances corroborate the assertion that the working of police has fallen foul of various provisions of law. The judiciary stepped in to bleach the stain of injustice by taking suo motu cognizance in the case and also the matter now has been transferred to CBI for further investigation.
The unpalatable and shoddy stories narrated by the police after executing the encounters killings are unfortunately becoming a new normal in our democracy. Under this context, history-sheeter Vikas Dubey and four accused in gang rape-murder case of a veterinary doctor were the latest prey of the UP and Hyderabad police, respectively. In a bid to ensure instant justice, the police is disrespecting the rule of law by denying the accused their right to fair trial which our constitution guarantees even to the worst of human alive on earth. It is agonizing to see public sanctioning such events contending that the assailants bore the fruit of seeds they sowed but what if an innocent is encountered someday who had been maliciously prosecuted? Hence, every act has some wider ramifications which we generally tend to ignore.
In the first ten months of Yogi government’s inception in UP, 1142 encounters have taken place, out of which 38 people died. In the last three years, 6145 operations were conducted and 119 of these fallen prey to police’s “thhok do” strategy. Negligible accountability of the errant officers has been a primary cause for the increase in such cases.
CUSTODIAL DEATHS AND OTHER EXCESSES DURING LOCKDOWN
The public outcry, following the death of a father-son duo, P Jeyaraj and J Benicks in Tuticorin, Tamil Nadu as a result of brutal custodial torture, highlighted just one instance of excesses committed by police during lockdown. A similar incident was also reported by Newslaundry from Madhya Pradesh wherein a sexagenarian, Tibu Meda died due to police assault on April 4 when he was on his way to get medical supplies for his wife, at around 7:30 am when lockdown restrictions were relaxed. Whereas the former instance caught the attention of public, and the subsequent furore led to the arrest of 10 police personnel after CBI took hold of the case; but like the skeleton in the closet, the latter case has fallen into the vicious manipulative vortex, which aims to bury the matter quoting ‘cardiac arrest’ as the reason behind the victim’s death. As per a report, as many as 15 people have died between March 25 and April 30 across the country after being allegedly assaulted by the police. Apart from these, other excesses have also come to fore during the countrywide lockdown, such as the indiscriminate use of lathis against people violating restrictions. Hence, Justice A.P. Shah rightly said that the culture of torture is endemic to the Indian Policing System.
According to the statistics tabled by the Home Ministry before the Rajya Sabha, total 1723 cases of custodial deaths(police and judicial) were reported in the country from January to December(2019), at a rate of five custodial deaths per day.
RIDING ROUGHSHOD OVER EXISTING LEGAL PROVISIONS AND ENGINEERING NEW ONES
In an attempt to frame its own rules, ostensibly for the maintenance of law and order, Yogi government in UP, has decided to set up a Special Force which will have powers similar to Central Industrial Security Force (CISF). This force will cost state exchequer Rs.1747.06 Cr and will be known as Uttar Pradesh Special Security Force. It is vested with a carte blanche authority to search and arrest without warrant. In a state which is already infamous for its agonizing trend in police brutality, this new development may do more harm than good.
Arbitrary use of various legislations like National Security Act (NSA) and Unlawful Activities Prevention Act (UAPA) and blatantly invoking provisions of law like Section 144, CrPC by the police against the interests of the public have not been an uncommon sight in the recent past. It had been reported that of 139 people booked NSA in 2020, 76 are for cow slaughter, 13 for anti-CAA protestors and only 37 for heinous crimes. Police resort to these stringent laws while misinterpreting the general issues of “maintenance of public order” for “national security”. The protestors were wrongfully detained whereas the perpetrators of violence had been running scot-free. This is how public servants are becoming public masters unleashing a reign of terror.
CHECK ON POWER
“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.” -A.V. Dicey
Although criminal complaints can be filed against the concerned police officers for offences under IPC but there has been no mechanism for independent investigation into such matters. Often, the police personnel refuse to register FIRs against their colleagues. Section 197, CrPC states the requirement of a prior sanction by government when a public servant, including a police officer, is accused of any offence committed in discharge of his official duty. But this provision is usually misused.
Under Section 176 (1A), CrPC , a mechanism has been provided for holding an independent inquiry by a Judicial Magistrate where a person dies or disappears while in police custody. This provision intends to ensure police accountability, through compulsory inquiry by an unbiased judicial officer.
Sections 330 and 331 of IPC penalizes violence by the police officer that causes hurt to the sufferer for the purpose of extracting confession, however, these provisions have hardly led to the conviction of the errant officers.
In view of the dearth of effective machinery for accountability of erring police officers, the Apex Court, in 2006, in the case of Prakash Singh v. Union of India directed states to establish Police Complaints Authorities at the state and district levels. The recommendations of these authorities for departmental or criminal action against a delinquent police officer would be binding, the Court stated. However, the directives of the SC have fallen on deaf ears as was evident in the report of Justice Thomas Committee in 2010 which the Court appointed to monitor the compliance of the above stated verdict and the states exhibited sheer indifference.
In Arnesh Kumar case, the Apex Court noted that the arrest should not be made merely because the police officers have power unless there is justification for the exercise of that power. In the case of D.K. Basu v. State of West Bengal, the Court laid down the “requirements” with regard to the arrest of a person wherein it enumerated 11 guidelines adhering to Art.21 and Art.22(1).
In 2003, Justice Malimath Committee recommended that the registration of FIRs should be the obligatory duty of the police officer and breach of this duty should become an offence punishable under the law to prevent the misuse of power by the officer.
The Indian Police were organized on the basis of the Police Act of 1861, a Victorian-era legislation. In 2006, the Supreme Court in its verdict underpinned the need to replace the archaic colonial legislation with a comprehensive modern legislation based on democratic principle of rule of law. Only 17 states in India have amended their state legislations, although even they emulate most of Indian Police Act of 1860.
In sum and substance, it can be concluded with certitude that India desperately needs police reforms to ensure accountability for police misconduct. There should be stringent laws prescribing stringent punishments in cases of police torture. The politicization of the police also urgently needs to be brought under check because this collusion provides an indirect passage to the errant officers to evade penalties. An independent body needs to be set up which impartially investigates into all such cases. When protectors of law become perpetrators of violence, the whole essence of democracy loses its meaning. Therefore, policing the police has become the need of the hour. The rule of law, not rule by force deserves our popular sanction. Even the citizenry need to act responsible by not glorifying the so called “dabangg attitude” of police officers. It is the Judiciary’s forte alone to establish the guilt or innocence of the accused and if found guilty, it is solely vested with the rightful power to punish the offender as per the procedure established by law. Hence, no other organ needs to step into its shoes. Apart from this, during recruitment and training, apart from testing physical endurance, training in anger-management and soft skills also needs to be imparted to develop an empathetic attitude among the personnel. They should be well-trained with the knowledge pertaining to various provisions of law so that they do not misinterpret them and act ultra vires their prescribed authority. Thus, a whole-hog alteration of the police laws and initiation of fresh and comprehensive reforms are the desiderata to uphold the constitutional principle of rule of law.
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