This article has been written by Sai Manoj Reddy. L, pursuing the Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Ruchika Mohapatra (Associate, Lawsikho).
In a country like India where there are a plethora of laws dealing with crimes committed by citizens, corporations, and other entities, it is very surprising that there are hardly any laws to check the crimes committed by police officers. It is a very rare occurrence to see a police officer being proven guilty and getting convicted for misuse of law or crimes committed under the guise of discharge of duty and following orders.
The Courts in India, more particularly the Supreme Court has, on many occasions, held police officers liable for wrongdoings committed through misuse or excessive usage of power, leading to violation of human rights. violations. Compensation for violation of fundamental rights was also introduced by the Supreme Court in 1983 in the famous case of Rudal Shah vs. State of Bihar where the Supreme Court granted Rs.30,000/- as compensation to the victim who was wrongly detained even after his acquittal.
A police officer can be held accountable for violations under public law, private law, criminal law, and also through departmental proceedings. However, the success rate involved in proving the police officer guilty of the crime is minimal.
In this article, the author has limited the discussion to the liability of police officers under private/civil law and has discussed whether a defamation suit can be filed against police officers in India. Before going straight to the private/civil liability of police officers, it is important to understand the concept of Sovereign Immunity and what kind of immunity is given to police in India.
Concept of sovereign immunity
Sovereign immunity is a well-recognised legal doctrine dating back to the time when kings and queens used to rule their kingdoms or countries. Under this doctrine, a king or a state can do no wrong and is immune from all types of civil and criminal prosecution. It is more of a justification for wrongs committed by the state and its instrumentalities.
We all know that India was a British colony and was ruled by them for more than 200 years and the concept of sovereign immunity in India has been borrowed from British jurisprudence as most of the laws in India are a product of the British era.
Until the late 1900s, this doctrine was used widely by the instrumentalities/representatives of government to escape from prosecution. However, the Indian courts played an important role in narrowing down the sovereign functions and making the scope of this doctrine as limited as possible in various judgments so that an ordinary citizen would be able to get justice. The jurisprudence was further evolved by the courts when they started granting compensation to the victims for wrongs committed by state representatives against them.
Recently in the year 2000, the Supreme Court in State of Andhra Pradesh vs. Challa Rama Krishna Reddy had outright stated that the doctrine of sovereign immunity has no place in India anymore while deciding a case on police negligence leading to the death of a person and injuries to his son. Even though this judgment was limited to violation of fundamental rights, it created a spark for further development in the area of governmental liability. The Supreme Court, in this case, held that:
“The Maxim that King can do no wrong or that the Crown is not answerable in tort has no place in Indian jurisprudence where the power vests, not in the Crown, but in the people who elect their representatives to run the Government, which has to act in accordance with the provisions of the Constitution and would be answerable to the people for any violation thereof.”
Distinction between sovereign and non-sovereign functions
Even though it sounds fairly simple to say sovereign and non-sovereign functions, it is very difficult to distinguish between them. There is no way anyone can simply make a list and add the functions to either category. Even the Supreme Court has struggled to distinguish what kind of action falls under which category of functions. But based on various precedents of the Supreme Court it can be understood that if an action is reasonably related to discharging duty or following an order by a superior then it falls within the ambit of sovereign function and this has to be seen on a case-to-case basis. It is the need of the hour to try and distinguish the sovereign and non-sovereign functions as much as possible and that task is the responsibility of the legislature and government.
The author has given simple examples to differentiate between a sovereign and non-sovereign function in relation to the actions of a police officer.
Let’s assume that you are a part of a group protesting against a fuel hike and all of a sudden, the group turns a little violent where a few members of the group start vandalising nearby shops. Immediately the peaceful group turns into a violent mob and police officers start using tear gas and lathi-charge to disperse the mob and control the situation. In this situation even if police are using force to hurt people it falls under the ambit of sovereign functions and discharging the duty.
Let us assume you are in a restaurant with your family and at the next table, a group of police officers is having their lunch. Assume that they are talking loudly and using foul language and you have a couple of children with you and you politely ask them not to use such language in a public place where there are children. All of a sudden, they start beating you saying something along the lines of, “How dare you to tell us what to do”. This is a completely different situation compared to the earlier example and this action of beating you is not related to discharge of duty by a police officer even remotely. Hence, actions like these fall under the ambit of non-sovereign functions.
Immunities given to police in India
In India, the police are given procedural immunity from any prosecution under Section 132 and 197 of the Code of Criminal procedure (CrPC). Under these sections, courts are barred from taking cognizance of any complaint or case against any police officer who is alleged to have committed an offence while discharging his duty. Prior permission of the State/Central Government is necessary if the courts have to take cognisance.
The immunity under Section 132 of CrPC is specifically for situations where force is used by the police officers for dispersing a crowd and maintaining law and order. Whereas, Section 197 is a general section that prescribes the procedure to be followed if a police officer is to be prosecuted.
Police accountability under private law
Police officers can be made liable under private law in cases of reckless and wrongful arrest/confinement of a person. False imprisonment/arrest is an arrest of a person by a police officer without any lawful authority or a reasonable cause. In situations like this the victim can file a suit claiming damages for mental agony, loss of reputation and physical harm (if any) and also for loss of income.
However, in India there is no hard and fast rule when it comes to the quantum of damages the courts will grant. We can see the pattern in a series of judgments by the Supreme Court starting from the Rudal Shah case followed by the Vidyawati case, the Nilabati Behra case, etc.
If a person wants to file a case against a police officer seeking damages, then he has to prove beyond reasonable doubt that due to the actions of police in wrongful arrest or reckless treatment, the victim has lost his/her reputation in society and suffered severe mental agony. Damages will be granted only if the courts think it is a fit case. One of the instances happened in Bangalore in January 2020 where a software engineer was booked under Section 66(a) of the Information Technology Act, 2000 when the section was struck down by the Supreme Court. In this case, the High Court of Karnataka granted Rs.10,000/- compensation to the victim and also ordered the Police officers to apologise to the victim for wrongful arrest based on a struck down provision of law.
Defamation suit against police officers
As discussed above, police officers are protected under immunity from any type of criminal prosecution under Sections 132 and 197 of CrPC. But Defamation can be both criminal and civil. Under civil law, defamation is treated as a tort and a suit can be filed for damages.
In India people seldom dare to file a defamation suit against a police officer. Proving that a cop has defamed someone is difficult, notwithstanding the power and influence cops enjoy in society; people are generally afraid to file cases for a plethora of reasons. However, there are a few cases where defamation suits are filed against cops.
In 2012 in the first of its kind, a young woman lawyer filed a defamation case against two cops in Mumbai for calling her a liar and outraging her modesty. Allegedly the two cops had done so in reaction to a complaint filed by the lawyer against another lawyer for harassing her. The court, in this case, has summoned the two officers to seek an explanation on this issue. There is no further information on what happened to this case.
In 2017 a retired police officer filed a 20-crore defamation case against D. Roopa, a senior police officer for allegedly bringing his name into the bribery case where the well-known politician Sasikala was given special treatment for a bribe worth 2 crores in the prison.
Analysis and conclusion
There is a need for a mechanism to hold Police officers accountable and award exemplary damages to the victim in certain rare situations where the police officers aether of their own accord or under the influence of some other person misuse their power and wrongly arrest and abuse a person or recklessly use unnecessary force and arrest a person without any reasonable cause. Let’s assume that Mr. Sharma is a big businessman who owns a billion-dollar company. One day the police come to his house and forcefully arrest him for an offence that is not serious in nature. The news spreads like wildfire and the shares of his company plummet and he loses reputation and huge amounts of money and after a few days it is found that he is not at all related to the offence and police have committed a grave mistake. In such situations, the police have to be held liable for loss of reputation, and money and exemplary damages have to be granted to the victim.
In conclusion, the author has stated that a suit for defamation (civil) can be filed against a Police officer but it is very tough to prove the same and eventually the court will dismiss the case. Alternatively, a suit for damage to reputation, income, mental and physical torture, and violation of fundamental rights can be filed against a police officer, and courts may award some compensation. In India, there is no hard and fast rule when it comes to calculating the quantum of compensation. There is a need to balance both the interest of citizens and the powers of police to investigate offences. This balance can be best achieved if an independent body free from governmental control is tasked with the responsibility of issuing sanctions for prosecuting a police officer. The guidelines issued by the Supreme Court in Prakash Singh vs. Union of India need to be implemented to see any change in the current situation of police accountability in the near future.
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