This article is written by Sneha Singh pursuing B.A.LLB (Hons) from Dr Ram Manohar Lohia National Law University, Lucknow. The article discusses the brutal steps taken by the authorities amidst COVID-19 to avert the danger of its spread by referring to the case of Jayaraj and Bennick.

Introduction

During the spread of COVID-19, many guidelines were imposed to keep people safe. The lockdown was imposed to combat the spread of the virus. But during the lockdown, there was a rampant increase in crimes. The police officers who were responsible to see that the people follow the guidelines took certain stringent measures which in certain cases were very brutal. Many were assaulted, tortured and died as a result.

• The father and son, Jayaraj and Bennick, died in the Tuticorin district of Tamil Nadu. Bennick was admonished by Sathankulam police for keeping his small mobile phones and accessories shop open for fifteen minutes beyond the government-imposed curfew time of 8 pm during COVID-19 in the month of June. Next day, the police officers visited his house and arrested his father as well. When he came to know about it, he rushed to the police station where he saw his father being brutally assaulted. He tried to intervene and as a result, he too was taken into custody and tortured. The father and son were too late to be taken to the hospital and later on, both died due to their injuries.
• The cases of such assault give rise to so many questions in our mind. How can the people who are bestowed with the responsibility to take care of the citizens beat them so brutally? Whether the mistake committed was of such a nature that such harsh punishment was required? Does the law give the power to assault in case of violation of the law? Do police officers have the power to take the law into their own hands and punish people in such a cruel manner? 

Hindrances to amendments

• Police brutality was at an all-time high during the time of the emergency in 1975. Seeing this, the Shah Committee was appointed which submitted its report stating that the police authorities cannot be allowed to subvert the rule of law and they should be prevented from any unlawful political interference.
• Keeping the situation in cognizance, the government formed the National Police Commission so that it may see the current situation and make changes if required in the Police Act of 1861. But this measure also turned out to be a failure as it was only on paper. Out of the 8 reports, none were implemented which further shows the reluctance on the part of politicians and bureaucrats to lose their control over the police.
• The cases of police brutality lead to human rights concerns of the people. To fulfil the international obligation of maintenance of protection of human rights again, a false hope was given in the form of the Human Rights Commission under the Protection of Human Rights Act 1993. 
• The power of the NHRC is limited which means that it is still dependent on the government for manpower and finance. If there is a violation of human rights, what NHRC can do is report about it to the government, after which it is upon the discretion of the government that an action is taken or not to take. One can go to NHRC  as a recourse, it can provide compensation to the victim. 
• In a country like India with a huge population direction was given for the formation of the Human Rights Commission in each state. Till now, not all the states have HRC and even if some of the states have, all are not functional.
• The incidents of custodial deaths kept on increasing at an alarming rate. To tackle the situation; a number of committees were formed and their reports were included in the judgment of Prakash Singh v. Union of India. Various reforms were suggested but none were implemented thoroughly. 
• One directive among them being to form a Police Complaint Authority at each state and district level. This was also implemented only by some of the states and not at both district and state level. Instead of the directive of the Supreme Court that PCA should have a binding effect it was only made binding in some states.

Flaws in the Police Act, 1861

The Police Act, 1861 is still in force in India, even after 73 years of independence. The Act was brought by the Britishers which gave power to the police to suppress the people with the use of force and hardly any provisions to check the arbitrary use of power by the police. But now there is a need to bring laws which check the brutality of the police offices. 

The Police Act nowhere mentions the accountability of police for any kind of misconduct or the offences committed while performing their duty like violence and brutality. There is internal accountability of police officers towards their seniors if they do offences like engaging in other professions, cowardice etc. The punishment for such offences is a salary cut for three months and three months of jail and that also without judicial intervention. There is no mention of serious offences like custodial rape, brutality and custody death. The judiciary should be bestowed with the power to step in and do an unbiased investigation against the police authorities if they are offenders in cases of violence and brutality.

Extent of the authority of the police

The nationwide lockdown was imposed after the onset of COVID-19. Various photos and videos did rounds of the internet where the brutality of the police with the common citizens not abiding by the set regulations of the lockdown was seen. Certain guidelines were issued which allowed relaxation during the period of lockdown for buying the essential requirements of day to day lives. Those who were roaming on the streets for any or no purpose were advised to stay indoors, not beaten with lathis. The Chief Minister of Telangana went a step ahead when he gave a warning to the people that he may be forced to issue an order of shoot at the site for the breach of lockdown. This tells the extent of authority which the police might think to possess to deal with the situation.

There are certain provisions in the Indian Penal Code 1872 and the Code of Criminal Procedure 1973  where the violators of the lockdown can be punished and it also discusses the extent of the authority which the police possess. 

Indian Penal Code 1872

• Section 188 : The section puts an obligation on the people to follow the orders of any public servant and abstain from certain acts or to take certain order with certain property in his possession or under his management who lawfully has the power to do so and if the citizens do something in contravention to it, then that is followed by a punishment of one month and fine.
• Section 267 : The section states that if anyone unlawfully or negligently leads to the spread of any disease which is dangerous to the life of the people would be punished with imprisonment of six months or fine or both. 
• Section 270 : It describes that if any person with a malignant intention leads to the spread of any disease which is harmful to mankind should be liable for imprisonment for a term of six months or with fine or both.
• Section 271 : It mentions quarantine laws made by the government and anyone who knowingly disobeys such laws would be liable to be punished for imprisonment of six months or fine or both.

All the above-mentioned offences are bailable and provide for a short period of imprisonment or fine or both. In regards to Section 271, it requires a warrant for taking action as it is non-cognizable in nature.

The Code of Criminal Procedure 1973 

• Section 149 : The section authorises the police to prevent any cognizable offence and for doing so take necessary action to the best of his ability. 
• Section 151 : It gives power to the police to arrest a person if he thinks that he is likely to commit any cognizable offence.
• Section 129 : The section gives power to a police officer to disperse unlawful assembly of people by using civil force if the command to disperse is not followed at the first instance.
• Section 132 : The section states that no prosecution of police officers can be done for an act performed under Section 129, Section 130 and Section 131 unless there is a sanction of the government.
• Section 197 : This section further provides protection to the police officers for any act committed while performing his official duty.

The various sections of IPC and CrPC which are discussed above talk about the various powers and authority possessed by the police. Specifically speaking about the power of the police officers during the period of lockdown, their authority nowhere permitted them to perform such brutal acts. But the police officers not only arrested people for which they had authority but also breached their authority by beating people mercilessly.

It depicts a sorry state that there are provisions made to protect the police officers from any wrongs committed by them in their duty tenure and they are misusing that power given to them. When the powers are given to police officers there comes responsibility and duty to act in a manner which is justified by the law. The person who is violating the laws of the quarantine should be punished for it but the arbitrary use of power by the police officials should not be overlooked.

Remedies against custodial torture

Custodial torture is regarded as the cruellest form of human rights abuse. There is an assault of various types and even the death of a person for getting the testimony and evidence from him. In India where the right to life and personal liberty is put on a high pedestal among the other Fundamental Rights, it is very remorseful to see people dying in police custody. 

Constitutional safeguards

There are certain provisions in the Constitution which provide for the rights of a person who is under the custody of police and he can go to the Court under Article 32 of the Indian Constitution for the infringements of his rights.

• Article 20 : The Article protects a person from being convicted of an act which was not an offence when he performed it i.e. ex post facto laws, double jeopardy (no one can be convicted of an offence more than once) and self-incrimination which means no one can be forced to be a witness against himself. But there are many instances where people are tortured for getting their testimony. 
• Article 21 :  The Article guarantees the right to life and personal liberty to all, which means that everyone has the right to live their life with dignity and not mere animal existence. This right is the same for the people who are convicted of any offence. They can’t be treated in an inhuman or degrading manner by the State or their functionaries. The State can’t claim sovereign immunity if there is criminal use of force against any captive person. 
• Article 22 : This Article specifically talks about the rights of a person who is convicted. The person who is arrested should be right away made aware of the reason for his arrest, the person has the right to consult a legal advisor of his choice, he should be brought before the Magistrate within 24 hours of his arrest.

These articles ensure that the person is not ill-treated even when he is in the custody of the police because still, he possesses the Fundamental Rights guaranteed by the Constitution to each one of us.

Indian Evidence Act of 1872

• Section 25 : The section provides that if any confession is made in front of a police officer it can never be used against the person charged of an offence.
• Section 24 : It provides that any confession made by any person due to inducement, threat or promise of any kind is not considered and is irrelevant in criminal proceedings.

Although it nowhere mentions about torture for securing any confession or evidence, the above discussed two sections make it evident that even if any form of custodial torture is used to secure any proof it is inadmissible and cannot be used against the person.

Code of Criminal Procedure 1973 

• Section 46 : This section provides for using force to arrest a person but the condition is that the person is not willing to submit to custody. The force used should be reasonable i.e it should not lead to the death of a person who is not accused of an offence punishable with death or imprisonment for life.
• Section 176 : When any person dies while in custody or the case is of nature as mentioned under Section 174 of the CrPC the Magistrate shall hold an inquiry regarding the case.
• Section 54 : The section gives power to a person who is arrested to ask the Magistrate to get his body examined if there is a chance of getting any evidence to disprove that he committed any offence or to prove the commission of any offence against his body by any other person.

Indian Police Act 

• Section 7 : The section provides for dismissal of the officers who are not fit to perform their duties or are negligent in doing the same.
• Section 29 : The section provides for penalty if any police officer is negligent in performing his duty, there is wilful breach or violation of the duty.

Indian Penal Code 1860

• Section 376(1) : The section discusses the punishment of rape and in this, the punishment is prescribed for rape committed by a police officer on a woman who is in the custody.
• Section 330 : The section mentions causing hurt to extort confession or to compel the restoration of the property. If a police officer A compels a person B to confess to a crime by hurting him, he would be liable under this section.  
• Section 331 : The section mentions about causing grievous hurt to any person to extort confession or to compel restoration of the property. If a police officer A compels a person B to confess to a crime by causing grievous hurt he would be liable under this section.
• Section 342 : This section punishes for wrongfully confining any person. Like in the case of Dharmu v. Rabindranath, the police kept the person detained despite the knowledge that the person had a bail order. The police officer was held liable under this section.
• Section 348 : In this section, it is mentioned about wrongfully confining any person to extort confession or to compel restoration of the property. For example, if a police officer detains any person and forces him to confess to a crime, then he would be liable under this section.

Landmark judgments on custodial torture

J. Prabhavathiamma v. The State Of Kerala 

• Facts

In this case, the petitioner was the mother of the victim who was assaulted brutally by three police officers while in custody and died.

• Judgment 

The police personnels were awarded the death sentence by the CBI court for murdering the son of the petitioner after hearing the case for over a decade in Thiruvananthapuram. 

Joginder Kumar v. State Of U.P and Others

• Facts

In this case, the petition was filed under Article 32 of the Constitution. The petitioner Joginder Kumar, a 28-year-old lawyer, was summoned by the police for inquiry at the office of Senior Superintendent of Police (SSP), Ghaziabad. The friends of Joginder visited the police station and they were informed that he would be released by evening and he was told that they would release him in the morning. But he was not released saying that some more inquiries were needed. His family was informed on the third day that he was taken to an undisclosed location. In this manner, he was in custody for five days.

• Judgment

The Court held that the rights recognised under Article 21 and 22(1) of the Constitution need to be carefully protected. The arrested person should be made aware of his rights when he is arrested and brought to the police station. The Magistrate before whom the arrested person is brought should also be careful in seeing that the rights of the arrested person are not abused.

Munshi Singh Gautam v. State of Madhya Pradesh

• Facts 

In this case, the victim is Shambhu Tyagi who was accused of stealing a bike. Police arrested him from his house. To get his confession, they brutally assaulted him as a result of which he died and his body was thrown near the Nala.

• Judgment   

The court held that the accused police officers were guilty of an offence punishable under Section 304 Part I, Section 330 and Section 204 of Indian Penal Code, 1860. 

The dehumanising torture, assault and death in custody which has assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system. The concern which was shown in the Raghbir Singh case more than two decades back seems to have fallen on deaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in the cases of Bhagwan Singh v. State of Punjab, Pratul Kumar Sinha v. State of Bihar, Kewal Pati v. State of UP, Inder Singh v. the State of Punjab, State of MP v. Shyamsunder Trivedi and the now celebrated decision in the landmark case of D K Basu v. State of West Bengal seems not to have caused any softening of attitude in the inhuman approach in dealing with persons in custody.

Yashwant And Others v. the State of Maharashtra 

• Facts

In this case, the accused police officers were patrolling and after that went to the house of HCP Telgudiya. There they got the news about a person named Anthony who had committed plunder. They started looking for Anthony but got no information about it. Rather a person told them about a man named Joinus who was a suspect from an earlier robbery case. The police went to his house and assaulted him and his wife. Then took him to the police station where he was put in lock-up and died in the morning the day after due to his injuries.

• Judgment 

The Trial Court announced a sentence of three years for the accused under Section 330 of the Indian Penal Code. Later on, when the matter was referred to the Supreme Court, the sentence was increased from three to seven years. A bench of Justices NV Ramana and MM Shantanagoudar held that the incidents in which the police are involved can lead to an erosion of people’s confidence in the way the criminal justice system works. The phrase fits well in the situation that with greater power comes greater responsibility on the person. Same is the scenario with the police officers.

D.K. Basu v. State of West Bengal 

• Facts

In this case, Executive Chairman of Legal Aid Services, West Bengal DK Basu in an address to the Supreme Court of India had mentioned certain news published in the Telegraph Newspaper about the deaths occurring in police custody. He also requested that the letter be treated as a writ petition under the Public Interest Litigation. While the petition was being considered, Mr Ashok Kumar Johri addressed a letter to the Chief Justice of the Supreme Court calling his attention to the death of a Mahesh Bihari from Pilkhana, Aligarh in police custody. The same letter was also treated as a request for writing and was included along with D.K.Basu’s request for writing. The court then issued notices to all the state governments and along with it, also to the Law Commission to come up with appropriate suggestions within a period of two months. 

• Judgment

In this case, the court issued a total of 11 guidelines which must be followed by the police officers at the time of arrest-

1. The police officers who go to arrest any person or who interrogate must carry a clear and visible identification label with them.
2. The police must prepare a memorandum of arrest at the time of arrest signed by the detainee and one witness. It should also provide for the date and time of the arrest.
3. A person who is arrested has the right to inform someone from his family or friends about his arrest and the place where he is put unless in the memorandum the witness who signed is one among a friend or a relative.
4. Police must notify the detainee’s time, place of arrest and place of custody to the detainee’s family or friend if they live out of the district through the District’s Legal Aid Organisation and the police station of the area concerned telegraphically within a period of 8 to 12 hours.
5. The person who is arrested must be aware of his right to inform someone about his arrest soon after he is taken into custody.
6. An entry should be made in the Case Diary when a person is arrested mentioning the name of the friend or relative who was informed of the arrest along with the name and particulars of the police officer in whose custody he is.
7. Upon request, the detainee must be examined and the major and minor injuries if any must be recorded at that time. The Inspection memo must be signed by both the detainee and the police officer and a copy of it must be provided to the detainee.
8. The detainee while in custody must undergo a medical examination every 48 hours by a physician in the panel of approved physicians by the Director of Health Services of the State or Union Territory concerned.
9. Copies of all the documents also included the arrest memo must be sent to the Magistrate for registration.
10. The detainee should be given permission to meet his attorney during interrogation but not throughout the interrogation.
11. A police control room should be there at every district and state headquarters and the arresting police officer must inform about the arrest and the place of custody within 12 hours when any person is taken into custody. At the police control room, the information should be displayed on the notice board.  

Measures to check the abuse of police power

Transparency of action and accountability are two safeguards which must be insisted upon. Attention must also be paid to develop proper work culture, training and orientation of police forces, consistent with basic human values. Efforts should be made to ensure that the police officers do not use any questionable methods of interrogation and do not sacrifice basic human values. The presence of a counsel of the attendee at some point of time during interrogation may prevent the police officers from using any third-degree torture.   

Another good way is to make the arrestee aware of his rights. When a person is well aware of his rights relating to arrest and interrogation, it would prevent the police officers from resorting to any method which is not supported by law. It would deter the police officers from the custodial commission of a crime.                             

Conclusion

The police officers must be made aware and accountable for the acts committed by them which are not reasonable, come under excessive use of force and disregard human rights. The people too need to be aware of their rights to protect themselves from any kind of violations. The violators of the law need to be charged for their conduct but that should also be according to the law. The law never sanctions excessive use of power by the public servants to discipline the people. It is the need of the hour to pay emphasis on this issue and take all the reasonable steps possible to prevent any person in the future from becoming a victim of the brutality of police officers.

References 

• https://thewire.in/government/delhi-riots-police-accountability
• https://criminallawstudiesnluj.wordpress.com/2020/04/06/is-use-of-lathi-by-police-during-lockdown-justified/
• https://www.latestlaws.com/articles/custodial-deaths-and-role-of-judiciary-a-critical-analysis/

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