“As members of a secular, democratic state, the police should strive continually to rise above personal prejudices and promote harmony and the spirit of common brotherhood amongst all the people of India, transcending religious, linguistic or sectional diversities and to renounce practices derogatory to the dignity of women and disadvantaged sections of society.”
It is ironic how the administrator of justice has now become the new perpetrators of crimes in India. The police brutality takes different forms like Custodial death, Encounters, lathi- charge, corruption, etc. For a long time, prisoners in India have been exposed to torture and violence. India has seen a rise in the number of custodial deaths in the past, but there is no clear legislation that tackles the need to escape torture in custody and protect prisoners from violence. Often the police officers who cause those injuries are either transferred or left with warnings.
Yet we see that police officers while discharging official duties do not fully undertake their responsibilities and misuse their authority for personal or official benefit. They violate their social contracts and engage in different practices that are unscrupulous. It is possible to describe such unlawful behavior or inappropriate action as police misconduct. Such unlawful behavior by police officers or the use of undue authority, which is reasonably necessary, leads to miscarriage of justice, discrimination and obstruction of justice.
Ø Recent Incidents
Hyderabad Rape Case, 7 December, 2019
Last December, during a visit to the crime scene, police shot dead four men involved in the high-profile rape and killing of a young woman whose body had been set on fire. Around 2,000 people gathered at the scene hours after the killings to celebrate, passing out sweets and showering the officers with flower petals.
Jamia Milia Incident, 15 December, 2019
As the nationwide protests against CAA and NRC raged on, the nation on December 15, 2019, witnessed an obscene misuse of authority, as armed police and paramilitary forces stormed the gates of Delhi’s Jamia Millia Islamia University, to violently quell the student protests. The students watched in fear as tear gas, rubber bullets, lathi-charged students and vandalised campus property were shelled by the authority tasked with the protection of law and order.
The police used brute force against unarmed protesters and shouted ‘anti-national’ remarks at them. Students were evacuated in an unlawful way from the campus, holding their hands above their heads. This ignited nationwide condemnation, and students across India protested against the unwarranted violence of the Delhi police.
Northeast Delhi riots, February 23, 2020
Another gruesome blotch in Delhi’s history, which witnessed large-scale bloodshed and violence, was the Delhi communal riots that took 53 lives. Among the 53, two-thirds were Muslims, and some from the community were absent by mid-March. The perpetrators of violence were pegged to be unruly Hindu mobs, carrying saffron flags, who fatally attacked many Muslim civilians unprovoked. On social media, a viral video made rounds where five men were seen lying on the street, surrounded by armed police prodding them to sing the national anthem.
Police Violence During Lockdown, April 2020
On March 23, 2020, a nationwide lockdown was imposed to combat the causes of a coronavirus pandemic, which came into effect immediately without allowing people time to chalk out their preparations for the next 30 odd days. Under the impact of the lockdown, the nation was reeling and the financially weak were struggling to find economic purchases to tide over the next month.
Numerous reports of gruesome brutality at the hands of the police emerged just a week after the lockdown. Since pre-colonial days, the first act of response by the police has been to punish or disperse crowds by lathi-charge. Jayaraj and Fennix Immanuel were subjected to brutal torture in police custody and later succumbed to death. This was not the first incident.
Vikas Dubey Encounter, 10 July 2020
In an alleged shootout, Uttar Pradesh gangster Vikas Dubey, the lead accused in the killing of eight policemen in Kanpur, was shot dead. According to the UP Police, when the special task force took him back from Ujjain to Kanpur, the car he was in overturned, and Dubey tried to escape. Dubey also fired at the police as he was escaping before being killed by UP police. In addition to Dubey, the police have also killed five of his associates in reported encounters over the last weeks.
Farmer’s Bill Protest, 18 September 2020
During farmer’s protests against the latest Farmers Bills being introduced in Parliament, the plaintiff, a farmers’ party ‘Sabka Mangal Ho’, had moved the High Court alleging police excesses. The complainant alleged that police officers who were both in uniform and not in uniform, charged participants with lathi-charges. After several farmers were wounded, they were also not provided with medical help.
The Punjab and Haryana High Court ordered the Director-General of Police in the State of Haryana to ensure police adherence in strict letter and spirit with the guidelines provided by the Supreme Court in the DK Basu v. State of West Bengal to provide protections against police excesses.
Hathras Case, 29 September 2020
The dead body of a 19-year-old Dalit woman who was gang-raped by four upper caste men was forcibly burned in the dead of the night. The Uttar Pradesh police did not let the devastated family see their daughter for one last time. Different media sources have provided varying accounts of what actually happened before and during the cremation of the victim. One thing is for certain, however, that at 2:00 am, the UP authorities cremated the victim’s body.
The Allahabad High Court took suo moto cognizance of the incident on October 1, 2020. The bench chaired by Rajan Roy and Jaspreet Singh observed that-
“The matter before us is of immense public importance and public interest as it involves allegation of high handedness by the State Authorities resulting in violation of the basic human and fundamental rights not only of the deceased victim but also of her family members. As it is, the deceased victim was treated with extreme brutality by the perpetrators of the crime and what is alleged to have happened thereafter, if true, amounts to perpetuating the misery of the family and rubbing salt in their wounds.”
On 12 October, 2020, while hearing the suo moto case a Bench of Allahabad High Court, Justices Pankaj Mithal and Rajan Roy observed-
“This action of the State Authorities, though in the name of law and order situation, is prima facie an infringement upon the human rights of the victim and her family. The victim was at least entitled to decent cremation in accordance with her religious customs and rituals which essentially are to be performed by her family. Cremation is one of the 'Sanskars' i.e., antim sanskar recognized as an important ritual which could not have been compromised taking shelter of law & order situation.”
On 1 October 2020, the former Congress President Rahul Gandhi and General Secretary Priyanka Gandhi Vadra were arrested by the Uttar Pradesh police on the Yamuna Expressway in Greater Noida when they, along with hundreds of Congress men, were heading to Hathras to meet the gang rape victim’ family members. In a pushback by the Uttar Pradesh police, former Congress President Rahul Gandhi was hit with a lathi and fell to the ground. Photos from the scene showed Rahul Gandhi being held back by the policemen, while a policeman is holding on to the leader’s kurta and then is seen taking a tumble and is on the ground. The party workers and his security guards united quickly to help get up.
In its 2017 annual report, the National Human Rights Commission of India said that violence in custody was so rampant “that it has become almost normal,” adding that many custodial deaths were reported after a considerable delay or not reported at all.
In 2019, 125 individuals died in police custody as a result of torture or other violence, according to the report of New Delhi-based National Campaign against Torture. It constitutes to five deaths per day. Among the States, Uttar Pradesh topped in deaths in police custody in 2019 with 14 cases, followed by Tamil Nadu and Punjab with 11 cases each; Bihar and Madhya Pradesh with 9 cases each; Gujarat with 8 cases; Delhi and Odisha with 7 cases each; Jharkhand with 6 cases; Chhattisgarh, Maharashtra and Rajasthan with 5 cases each; Andhra Pradesh and Haryana with 4 cases each; Kerala, Karnataka and West Bengal with 3 cases each; Jammu & Kashmir, Uttarakhand and Manipur with 2 cases each; and Assam, Himachal Pradesh, Telangana and Tripura with 1 cases each.
Common Cause and the Centre for the Study of Developing Societies in its report on Status of Policing in India, 2019, shows troubling trends in police bias. This suggests a major bias toward Muslims. There were similar biases towards Adivasis, Dalits, transgenders and migrants from other states in some nations. Approximately two in five police officers surveyed in Bihar, and one in five in six other states, have never received training in human rights.
Ø Judiciary’s View
In Tehseen S. Poonawalla v. Union of India (2018) SCC Online SC 696 the Hon’ble Supreme Court has directed that-
“Wherever it is found that a police officer or any officer of the district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance.” (Para 40)
Monica Kumar and Ors. vs. State of U.P. and Ors., the Supreme Court observed that-
“Police needs to be sensitized about the rights of citizens and the civilized manner in which police was required to maintain law and order in this country. It is high time that training of police in this direction was given a concrete shape so that it brings about positive results, and the usage of force on citizens was reduced and police officials become more sensitive towards them and fulfill their role as the protector of citizens. There was also a need to deal with erring police officials by taking stern measures whose actions amount to misconduct or may even be criminal in nature. Letting these erring officials lightly, as has been done in the instant case, by only administering a warning may not be appropriate.” (Para 24)
Ø Remedies For False or Illegal Arrest
I. Registration of FIR Regardless of Jurisdiction
The law enables the police to register FIR or a "Zero" FIR (in case the crime is committed outside the jurisdiction of police station) in the event of receipt of information on commission of a cognizable offence. Compulsory registration of FIR under sub-section (1) of section 154 of the Code of Criminal Procedure, 1973 is obligatory.
II. Writ of Habeas Corpus (Habeas Corpus)
The term Habeas Corpus means to "you may have the body of." When a person is wrongfully detained, you can file a writ petition. In other words, if the judge finds that a person is being held illegally, it can order that person's release.
The Supreme Court has expanded the scope of a habeas corpus writ petition. You can now also make a complaint for a violation of a prisoner's fundamental rights. A Habeas Corpus writ petition can be filed in any court, including the High Court (under Article 226) and the Supreme Court (under Article 32).
In most cases, the individual who is being held illegally files a petition of habeas corpus. The court may, in certain cases allow the friend or family member of the person detained to file petition on his behalf
The court in list of cases has granted the victim who was illegally detained/ arrested compensation. Thus, it can be said that pecuniary compensation is the golden remedy for violation of fundamental rights. (Saheli v/s Union of India [AIR 1990 SC 513] and Bhim Singh Versus State of J & K. [AIR 1986 SC 494]).
Indian Penal Code, 1860
Section 171E- Any person found guilty with the offence of bribery, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both.
Chapter III of the Prevention of Corruption Act, 1988
Section 7- If a public servant is found guilty of taking gratification other than his legal remuneration for official act, that public servant shall be punishable with imprisonment which shall be not less than 6 months but which may extend to 5 years and shall also be liable to fine.
V. Independent Police Complaints Authority
In its 2006 judgement in Prakash Singh & Ors v. Union of India & Ors, the Supreme Court of India directed all states and Union Territories to establish Police Complaints Authorities. This is one of seven directives aimed at kicking off police reform.
It will conduct an inquiry by summoning relevant individuals or authorities in order to gather the information and prima facie evidence it requires. It has a 60-day deadline to make its recommendations after receiving a complaint. The PCA will base its findings/recommendations on the information and evidence available. The PCA will send its findings and recommendations to the Chief Secretary of the state after it has completed its inquiry. Except if the government disagrees with the PCA's conclusions, which it must declare in writing, the PCA's recommendations should be binding.
WHO CAN FILE A COMPLAINT?
• A victim of police misconduct/abuse.
· Any person on behalf of victim on a sworn affidavit.
• The National Human Rights Commission (NHRC)
· The PCA can suo moto take actions.
HOW CAN A COMPLAINT BE FILED?
• Any complainant can file a complaint by themselves. You do not need a lawyer to make a complaint to the PCA.
· No fees is required to be paid.
• The complaint must be made in writing.
• The complaint can be submitted by hand in person, or by post or courier to the office of PCA.
VI. Human Rights Commission
· The complaint can be filed by the victim, or someone acting on his behalf.
· Complaints should be written in Hindi, English, or any other language included in the constitution's eighth schedule.
· The complaint must specify: I a public servant's violation of human rights or abetment of such violations; and (ii) negligence in the prevention of such violations.
· The Commission's jurisdiction is limited to human rights violations claimed to have occurred within one year of the Commission's receipt of the complaint.
How to file a complaint with National Human Right Commission
Online Complaint with NHRC
To file a complaint, go to the National Human Rights Commission's website and then to complaints. There is a complaint registration option in the complaints section. The Online Complaint Registration Form will display when you click it. Simply fill out the form and submit it.
Offline Complaint with NHRC
The offline complaint is the second option. On its website, the National Human Rights Commission has a complaint form. Simply print the application form from the complaints section. Fill out the form and submit it to the NHRC within the prescribed period.
VII. Involvement of NGOs and Media
Media has continued to play a creative part in keeping societies strong all around the world. It is regarded as a protector of peace and order, in addition to delivering current news from other sources. The role of the media is not limited to that; it is also recognised for its creative contribution to the formation of a civil society.
NGOs too play a vital role in keeping a check on activities of police authorities. NGOs become spokespersons or ombudsmen for the people and attempt to influence government policies and programs on their behalf.