In this article, Shrey Chakraborty of Symbiosis Law School, Hyderabad discusses What actions can you take against a public servant who insults or hit you.

It has not been uncommon for those in power to abuse and misuse the power they have been vested with. So will the ones in power will continue to oppress, suppress and exploit the ones who gave them this power in the first place? No. We live in a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC. That’s what the Preamble of the Indian Constitution states. Then why are the people still being oppressed? It’s simply because of lack of awareness of a person’s legal rights and remedies. In this article, I would be dealing with the mechanisms which a person can resort to if a public servant has hit or insulted you.

Why do we not speak out?

People usually dislike going to a government office or for that matter, dealing with a public servant. It has become a prejudice in the minds of citizens. But that prejudice is there for a reason. It holds a kernel of truth. We don’t like going to a government office or dealing with a public servant because of their laid back attitude, red-tapism, corruption, bureaucracy and the list goes on. But why do we not speak out about it? Why do we not speak out about if a public servant insults you in a government office? What if the same public servant hits you? Some might object then. But why is it so? Well, mainly because we are apprehensive that it might make the situation worse for us and so we hold back ourselves. We must know the remedies that are available to us if a public servant hits or insults us. But before knowing the mechanism and remedies available to a person against a public servant, it is important to know as to what exactly does a ‘public servant’ mean in the legal language.

Who is a public servant?

The word ‘public servant’ has been defined in Indian Penal Code and this definition is an exhaustive one. According to the provision, following are the categories of authorities that would fall within the purview of a public servant:

1. Every Commissioned Officer in the Military, Naval or Air Forces of India;
2. Every Judge including any person empowered by law to discharge any adjudicatory functions;
3. Every officer of a Court of Justice (including a liquidator, receiver or commissioner);
4. Every juryman, assessor, or member of a panchayat assist­ing a Court of Justice or public servant;
5. Every arbitrator or other people to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;
6. Every person empowered to keep another in confinement;
7. Every officer whose duty is to prevent offences, give information of of­fences, bring offenders to justice, or protect the public health, safety or convenience;
8. Every officer who is empowered to conduct elections.

The list goes on. To seek more clarity on this exhaustive definition, click here. This section of IPC provides as to who all can be regarded within the umbrella of ‘public servant’. This means that actions can be sought against the above mentioned public officers who in any way, hit you or insult you. The next question which pops up is that do we have sufficient provisions of law that can address our problem at hand?

Is there any provision in Indian law that sufficiently addresses this issue?

• When a public servant fails to discharge public obligations and instead, engages in in certain wrongdoings which as a consequence, causes injuries to the person is referred as malfeasance. Example – A Municipal Authority appointed a new head – X. This manager, along with his other responsibilities, is required to sign contracts with 3rd parties for certain social welfare projects. A, an entrepreneur, approached X for a social welfare project contract which would benefit both the parties. However, X accepts to sign on the contract on the condition if A pays X a certain amount. Thus, the conduct of X in the capacity of a public servant, amounts to malfeasance.
• Similarly, in India, any wrongdoing by the public servant would amount to malfeasance. However, in India, malfeasance per se, has not been defined anywhere but there are certain legislations which provide for circumstances when a public servant abuses you using his authority.
• The 22nd Chapter of IPC prescribes a punishment of 2 years of imprisonment or a fine or even both for the offence of insult. This offence is a compoundable offence as per the Code of Criminal Procedure 1973. This means the offence of insult can be compounded by the person who has been insulted.
• Example – A, who is seeking help to file a complaint in the Police Station, asks B, who is an officer there. B, instead of helping him, insults him in front of everyone. Due to this, A goes to the court of law since B insulted him. Since insult is a compoundable offence, B can enter into a compromising agreement with A so that the charges against him are dropped.
• Similarly, Indian Penal Code also lays down provisions for circumstance when you are unlawfully being hit by another. In such a situation, the person who has hit you will again be liable for punishment for imprisonment for a term extendable to 3 months or a fine extendable to Rs.500 or even both.
• The Indian Penal Code also says that if a public servant is not acting in accordance with the way he is supposed to conduct himself or contrary to any direction of law with an intent to save the person from punishment, then such a person will be liable for punishment of imprisonment of 2 years or fine or even both.
• Also, if a public servant is making a report contrary to law in a judicial proceeding, he will be liable for punishment of imprisonment of term of 7 year or fine or both.
• As per Section 166 of Indian Penal Code, a public servant who disobeys law with an intent to cause injury to another is liable to be punished with a term of 1 year of imprisonment or fine or both. So if a public servant hits or insults you, this provision of IPC will be attracted.

• However, in Indian law, there is no provision which, in particular, makes a insult, assault or any wrongdoing by a public servant, as an offence. But there are a few guidelines and codes of conduct for every public servant which they are required to abide by.
• So, there are indeed a few provisions of law which address the current problem but do these provisions cover every aspect of the problem? Do they properly address the problem we face when hit or insulted by a public officer? No, these provisions do not sufficiently address the problem we face when a public servant hits or insults you. So what do we resort to?

What is the solution?

As mentioned above, there are a few provisions which make the act of hitting or insulting as an offence. So, the first step one must take is reporting the act of the public servant to a nearby police station by registering a FIR. By registering a FIR, the first step of a legal proceeding gets initiated. Once the legal proceeding is initiated, the due process of law is followed and the rule of law prevails. But the problem does not lie in that ever long (sometimes never ending) judicial process.

One must understand that the very fact that you register a FIR makes you susceptible to another similar situation. After all, the police officer is also a public servant. In such a case, what one must do is register a FIR against that police officer in a police station. But who would accept that the police officer is the one who has been charged with the offenses? What if the public servant who is supposed to protect people from all the evils in the society becomes that evil? What if no one accepts the complaint? In such a case, you can go to the District Superintendent of Police who will look into the matter and also order the registration of FIR.

However, if both these avenues don’t turn out to be very effective to the victim, then you can approach the nearest Judicial Magistrate or even approach the National Human Rights Commission, or, if available in your state, the State Human Rights Commission. As we can see, there are quite a number of ways by which you can let the concerned authorities know about your grievances.

What is Police Complaint Authority (PCA) and how does it work?

However, if you have knocked all the above-mentioned doors and still nobody answered, even then you must not give up! There is still one door left to knock and those are the doors of Police Complaints Authority. In 2006, a landmark judgement passed by the Apex Court in the case of Prakash Singh v. Union of India, gave a directive to all the states to create Police Complaints Authority in their respective states. This was done because there was a dire need of preserving the rule of law in the functioning of the State. The problem is that only 18 states have complied with this directive so far. What’s worse is that only a few are aware of this golden door.

Since this is a state subject, every state has its own Police Complaint Authority Regulations. As per most of these PCA Regulations, following are basic functions that most of the PCAs have in common:

• Receive complaints against Police Officers who have been alleged of the wrongdoings.
• Enquire into those allegations of misconduct.
• Receive and enquire into the complaints of non-registration of FIRs.

Conclusion

Now, are we still to assume that there is no rule of law and that the ones with power will keep oppressing the ones without that power? Constitution is the supreme law of India and no one is above it. Rule of law stands as a pillar of the Indian Constitution and it cannot be taken away. No matter who you are, man or woman, poor or rich; the law will always be above you. No one is above the law, not even the lawmakers or the law-enforcers. Even if you are a policeman, you will be accountable before the law.

So yes, if a public servant breaks the law, that person will be punished for it, just like everyone. There is no point of being apprehensive and holding back if a public servant hits you or even verbally insults you. If he has been rude, behaved inappropriately or did not do his duty the way he should have, his can always be punished by his seniors

The State must protect the interest of its subjects. No State can work in seclusion. It must work with the people and for the people and only then can the nation grow as a whole.

References

1. Section 21 of Indian Penal Code, 1861.
2. Section 504 of Indian Penal Code, 1861.
3. Section 320 of Code of Criminal Procedure, 1973.
4. Section 350 of Indian Penal Code, 1861
5. Section 352 of Indian Penal Code, 1861.
6. Section 217 of Indian Penal Code, 1861.
7. Section 219 of Indian Penal Code, 1861.
8. Writ Petition (civil) 310 of 1996.