This article is written by Anam Khan from Hidayatullah National Law University. The article tries to make an analysis of how the protests in the United States of America are linked with India. Prejudice, discrimination, racism, and police brutality has been present in our societies from time immemorial. It is important to understand the pattern of continuing discriminatory practices, police brutality, and racism.
Table of Contents
Introduction
There have been various revolutions that have relaxed other rampant practices but things remain the same in instances of police brutality and racism. With the death of a 46-year old man, George Floyd seeds in the USA and the father-son duo in Tamil Nadu seeds of the global revolution have been sown. Amidst an already existing world crisis of COVID-19, there has been a chain of massive outbreak of protests slowly enveloping the European countries and further-reaching India. The article explains the surge in the number of incidents of police brutality around the globe. Has your life been in danger because of hate, have you ever been marginalized, have you faced discrimination because of your skin colour, have you and your ancestors faced segregation or violence because of your background or are you aware of the increase in the number of custodial deaths?
Chances are that you might be aware of such things happening around you but you do not have the first-hand experience. But it has now become imperative to understand the fear that has been instilled in the minds of the minorities and people who are victims of hate. According to 70% of Black Americans, racism is the biggest problem. Racism is the discrimination that is directed against a person by someone who believes he belongs to a superior race. The acts that are performed to assert this superiority are barbaric. To add to this, in recent years there has also been a sharp rise in the cases relating to police brutality and custodial deaths. It is the duty of the police to protect us, and maintain law and order in society. But the greater the power, the more dangerous is the abuse. Police brutality is a violation of civil rights, the unjustified use of force against civilians. It is not only appalling but also shameful to see how keepers of peace can cause such large scale unrest. In the middle of a pandemic, what caused the people in the USA to storm on the streets?
The story of George Floyd
Who was George Floyd? And how has he caused such a gigantic solidarity movement? The key to understanding the present situation that is shaping up in major European countries and also in the USA is the story of George Floyd. A callous glimpse of continuing discriminatory practices and abuse of power by the police. He was a 46-year old man who died as a victim of police brutality interlinked with racism. Disregarding the norms of social distancing and home quarantine, thousands of people have gathered to demand justice for the killing of George Floyd by police in Minnesota.
But how did he die? During his arrest for a counterfeit 20$ bill, one of the police officers, David Chauvin pinned him down on the floor with his knee pressing against his neck. The videos that have gone viral show that for a total of 8 minutes 46seconds, Floyd was brutally pinned down. The police are not permitted to make use of such force unless the accused is actively resisting or using force himself. The videos show that Floyd was neither resisting nor using any force. There have already been 17 cases on Chauvin and he has now been booked for third-degree murder and manslaughter. Floyd’s death has proved to be the breaking point of thousands of African-Americans, and victims of hate. Where does America go from here? Back to the clutches of hate or towards the dawn of revolution?
Unrest in America
For a better understanding of the unrest happening in the United States, it is important to understand the history of African-Americans and the trail of abuse of power. In 1619, a private ship holding nearly 20 captives was brought to the shore of Virginia. These captives were seized by English pirates and began to be treated as slaves. It began on a small scale but as time passed by this became an unfortunate practice. It went on to the extent wherein 1661 there was a ban on inter-racial marriage. Soon thousands of Africans were sent to what would one day be called the United States of America. The declaration of Independence in 1776 still could not free them from the shackles.
It was the 13th Constitutional Amendment that finally put an end to slavery on paper. But how far have the Americans been successful in implementing the Amendment? Has it been a success or a failure? The death of Floyd and the racial tweet by the President himself indicates the presence of the latter. Floyd went silent but he has left behind a trail of people who are hungry for justice and to limit the powers of the police. Is this the point were blacks finally get justice and are set free from discrimination and police reforms are introduced? As a domino-effect of these protests in the USA, other places have also come forward in the demand for justice and a call for revolution.
A massive solidarity move
Who will police the police when they do wrong to the citizens? Belonging to the executive branch of the government, it is their duty to implement the laws, maintain peace in the state and not to make new ones, or to modify the already existing laws. The Constitution outlines three branches- executive, legislature, and the judiciary. They have their limited scope and authority, and there must be provisions for instances of abuse of powers. Ever since the incidence of George Floyd has been brought to light, the anger boiling inside people has turned into active protests. In an era of change, from how we work to how we greet people, it is time that genuine equality is served among the masses. Where the USA has placed the stepping stones, on which the world is establishing a clear demand for equality and freedom from police brutality.
Parallelism with India
People saw how Goerge Floyd died in the USA, and there was a massive outcry for justice. While miles away in Tamil Nadu, Jayaraj and Bennix died, people grieved over social media. It is important to emphasize here that our constitution-makers have for specific reasons made three different branches of the government. It is extremely important that these branches are checked to be working within their scope and jurisdiction of powers. But for quite some time now it is seen that there is a surge in the number of cases relating to police brutality. How far is the police allowed to use force? What are the conditions that allow third-degree torture and who is answerable for custodial deaths? These are some questions that the citizens of this country must ask.
From Kashmir to Jamia, from anti-CAA protests to student protests at JNU- the cameras have caught the police using force beyond justification. There is no denying that when there are a law and order crisis, the police are bound to step in. But what we forget to mention is in what proportion must the action be taken by the police to maintain peace in the society? Is the use of arbitrary force valid? Was the police justified while using pellet guns on the citizens after the abrogation of Article 370 in Kashmir? Was the action of assaulting college students at Aligarh Muslim University and Jamia University accusing them of turning the protest violent, legal? Hurling abuses and forcing injured minorities to sing the National Anthem and simultaneously beating them with police lathi is one such video that went viral during the anti-CAA protest. Does our constitution have room for such inhumane actions? To top it all, there have been so many cases of police brutality that have been reported during the lockdown for a pandemic!
Police, as we all know, is the executive branch of the government, which means its primary function is to execute orders and not to make them. So, if the police are not allowed to use such arbitrary and extensive force then why is there no check on them?
Nature of police brutality
Police brutality has visibly increased across India. From custodial deaths to rape to torture, there seems to be no end to the use of force by the police. Although there exists a strong legal framework protecting the rights of an accused in custody there surely are some grey areas that allow for such barbaric actions to happen. From Article 21 and 22 of the Constitution to Section 57 of CrPC and certain landmark judgments, all encompass the rights of an accused in custody. But still, a lapse happens. What are the different ways by which the police hurl cruelty towards citizens? Mentioned below are the two most frequently occurring types of torture by the police.
Custodial deaths
Custodial deaths not only go unpunished but also seem to have become the new normal. Though the death of Jayaraj and Bennix is still in the light, there has been no action taken so far. According to Section 176 (1A) of CrPC, cases of custodial violence must be investigated by a judicial magistrate. Are the custodial deaths in India nothing more than a cold-blooded play of power? The data in the National Crime Record Bureau shows that between 2001 to 2018 there were 1727 custodial deaths recorded in India and only 26 policemen were booked. One of the major reasons why custodial deaths have become a common practice is the absence of a strong anti-torture bill.
Torture as a tactic for investigation
Donald Trump believes torture works for investigation. But how far is it true? Does torture help with investigations and honest trials or does it fabricate the thread of justice system? The court anyways does not admit evidence that is obtained by coercion. We know that according to the Indian Constitution, the police force is a public body and a police station is considered to be public property. But do we always feel safe to approach the police? Are there no apprehensions in our minds while asking for help from the police? Our minds are filled with fear when we are introduced to the cases of Jayaraj and many more like him. Quite often the police use third-degree torture as part of the investigation. But is it not a violation of human rights?
Does police brutality lead to police raj
With copious cases coming under the scanner, it is important to assess that if there is a continuation and surge in cases of police brutality it will lead to a police raj and further to lawlessness. It is not only the police who must be questioned over such instances. The judiciary and legislature are equally answerable for not controlling and limiting the powers of the executive, i.e the police. Why use the term police raj? It is because the statistics and the data show the autonomy of power travelling into the hands of the police. That is to say, that if police are permitted to make arbitrary, extensive and unjustified use of force against accused and the civilians alike, without any justification and if nobody keeps the checks and balances of how police body functions, it is most likely that India, from a democracy, will turn into a police raj in no time. The fact that no serious action has been taken can be easily understood through the increase in the number of incidents every year. If the issue is not nipped in bud, it is most likely to create a wild forest fire in the garden of a failed democracy.
Landmark judgments
D.K Basu v. the State of West Bengal
In this case, the Supreme Court has issued guidelines to be followed by the Central and State investigating agencies in all cases pertaining to arrest and detention. The matter was brought to the court by Dr D.K Basu, Executive Chairman of the Legal Aid Services through a PIL. He addressed the matter to the Chief Justice drawing his attention to certain news items published in the Telegraph regarding the death in police lock-up and custody. Dr Justice Anand who delivered the judgment said that any form of torture or cruel, inhumane or degrading treatment would fall within the ambit of Article 21 of the Constitution whether it occurs during investigation, interrogation, or otherwise. It was held that the precious right guaranteed under Article 21 could not be denied to the convicts, undertrials, and other prisoners in custody. Following are some of the basic guidelines laid down by the court-
The police personnel carrying out the arrest should bear accurate and visible nametags. The particulars should be recorded in the station register.
A memo of the arrest must be prepared, having the one witness( a member of the arrestee’s family or a respectable person of the locality) attest the same.
The arrested person shall be entitled to have one friend as early as possible.
The arrestee must be allowed to meet his lawyer during interrogation, though not throughout the interrogation.
Copies of all the documents including the memo of arrest should be sent to the area Magistrate for his record.
Joginder Kumar v. The State of U.P.
The Supreme Court, in this case, laid down the guidelines governing the arrest of a person during an investigation. This has been done with a view to striking a balance between the needs of the police on one hand and the protection of human rights from oppression and injustice at the hands of the law enforcement agencies. The court held a person is not liable to be arrested merely on the suspicion of complicity in an offence. There has to be some reasonable justification in the opinion of the police officer effecting the arrest that such an arrest was necessary and justified.
The way forward
Ratification of UNCAT
Could India not ratifying to the UNCAT be one of the possible reasons why there is a stream of torture cases flowing in our society? India is among the five countries that have not ratified to the United Nations Convention Against Torture. Why has it become an urgent need? It will not only provide a mandate but also a systematic review of colonial rules, and the arrangements that have been made for the custody and treatment of arrested persons. It will also ensure the setting up of redressal and compensation mechanisms for the victim.
Police Reform
There is a need to formulate new guidelines inclusive of educating and training officials involved in cases of deprivation of liberty. It is important that the reforms include guidelines that are clearly decipherable by the senior officers because unless they articulate the gravity of the issue there is no possible way forward.
Access to Prisons
Who will guard the guardians? Why is it that police stations do not have CCTV cameras? Why are there no in-camera interrogations? If there are CCTV cameras installed would there still be as many cases of police brutality as there are today? There should be a check on the activities of the police too. Non- official visitors’ surprise inspection should be made mandatory. There should also be strict implementation of the guidelines set in D.K Basu’s case.
NGOs
The NGOs that work for human rights must include cases of police brutality to its purview. NGOs have a pivotal role in our society. Like NGOs work for women empowerment and child rights among many other issues in India, they must also include incidents of police brutality within its scope. This will not only help in keeping a check on the law enforcement agency but also safeguard the rights of the accused.
Conclusion
To put things in a nutshell, there are three points that need to be highlighted. Firstly it is extremely important that we reduce the surge in the number of custodial deaths so that the responsible ones can be convicted. This will help maintain the fabric of justice with the peaceful co-existence of state and public. Secondly, structural reform has become the need of the hour. Regulation of distribution of power is another keynote that must be introduced. Thirdly, it goes without saying that every country deserves policemen who can protect them. When people don’t feel safe around the police, what is the point of having them? Where will they go? How many of us have felt reluctant to approach a policeman in our times of need? How many of us have felt that sudden moment of perplexity on seeing a policeman in the vicinity? India is one of the world’s largest democracies. It is high time that we voice our opinion and demand for a healthy change.
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