This article has been written by Khyati Basant, from Symbiosis Law School, NOIDA. This article consists of a brief description of laws and rights dealing with the police.

Introduction

The police department is responsible for upholding law and order in communities and preserving public safety as well as protecting its reputation. India’s Preamble clearly shows that no-one is above the law. Police officers are also unlikely to exercise excessive control or abuse their authority to threaten people in the garb of undertaking an investigation. Police are one of society’s most significant organizations. And the cops happen to be the government’s most prominent leaders. In an hour of risk, threat, disaster, and challenge, when a resident does not know what to do and how to contact, it happens that the police department and a policeman are the most appropriate and available unit and individual to him. Police are expected to be any society’s most accessible, interactive, and dynamic organization.

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On the one hand, their positions, responsibilities and duties within society are normal to be varied; and on the other, difficult. Broadly speaking, police main responsibilities are law-keeping and order-keeping. However, there are numerous ramifications of these two duties, resulting in a large inventory of the police organization’s duties, functions, powers, roles, and responsibilities. Vesting varied powers in the hands of police while, on the other hand, it is necessary to carry out their duties leaves the door to misuse and, hence, human rights violations.

Police are the first person of contact with the citizens. The police have to preserve order and prevent crime. It is their duty to produce the offenders before the court and deal with it.

The Indian legal system gave the people living in the country much control. Not everybody, sadly, is aware of the force. Being an Indian citizen, it is very important that you are aware of the laws and rights that exist within the region. Beyond simple rules and rights, there are other essential rules and rights that must be recognized by all.

Article 21 of the Indian Constitution gives the lives of imprisoned, under-trials, and accused people hope. These citizens ought to be treated humanely and in the way prescribed by the statute. In Maneka Gandhi v. Union of India {AIR 1978 SC 597}, the Supreme Court held that State and, as a matter of fact, the police as its main law enforcement agency have an unquestionable duty to bring in offenders to book. Nevertheless, the law and procedure that the State has adopted to achieve this laudable social objective must conform to civilized norms. Therefore, the method the State has implemented must be lawful, equitable, and rational.

Major objectives

The major objective of police in Indian Society is to maintain public order, prevention and detention crime, respect the rule of law, and to respect the dignity of human beings.

Police arrest powers are subject to restrictions and judicial oversight and scrutiny to safeguard the fundamental right to life of all persons under Article 21 of the Indian Constitution. Imposing such restrictions explicitly reflects an appreciation of the accused person’s interests. Chapter-V of the Criminal Procedure Act (CrPC) contains provisions relating to the arrest, restraint and supervision, and scrutiny of persons. Criminal law’s main purposes are Deterrence, Retribution, and Protection. Reformation & Rehabilitation are the silent aims of improving social hues. “Once Criminal, Always Criminal,” the test of reasonableness, intelligence, and morality can’t bear. Not all offences are the same and so they aren’t offenders. Weight, design, and presence determine which jurisprudential law norm to apply. The implementation of the yardstick is, however, dependent on discretion to be exercised under the scope of State legislation.

Police and rule of law

The fundamental principle of democracy is the rule of law. It says that no person is above law and every person is equal before the law. Rule of law denotes equal protection of the law and the absence of arbitrary powers of law.

Police is a subject governed by states, under the Constitution. Hence each of the 29 states has its own security departments. In fact, the centre is authorized to maintain its own security forces and support states in maintaining law and order. Therefore, for specialist activities such as intelligence collection, investigation, research and record-keeping, and teaching, it operates seven regional police forces and several other police organizations.

Police departments play a key role in maintaining and executing laws, solving offences and providing security for the country’s citizens. In a wide and populated nation such as India, police forces need to be well-equipped to play their function well in terms of manpower, weapons, forensic assistance, connectivity, and transport.

Police reform in India

Police make up about 3 percent of government spending. If the responsibility for maintaining law and order and prosecuting crimes rests with state police services, central powers support them with intelligence and national security problems (e.g., insurgency). Police investment accounts for around 3 percent of the budgets of the federal and state government. State police had 24 percent vacancies in January 2016 (about 5.5 lakh vacancies). And while in 2016 the approved police force was 181 police per lakh citizen, the actual force was 137 police. Note that the standard recommended by the UN is 222 policemen per lakh person. The constabulary constitutes 86 percent of the state police.

Rights to a person before he/she deals with Police

  • Section 29 of the Indian Police Act, 1861 states that if a person is at the end of the misconduct due to a police officer’s omission of duty, the officer may be punished with up to 3 months’ imprisonment and up to 3 months’ salary penalty.
  • Police Complaint Authority (PCA) was formed in 2006 for managing police complaints and improving the police system’s framework and way of operating. If there is a case of ‘serious wrongdoing’ the police officer may be found responsible. Anybody who has experienced police brutality will lodge a lawsuit with PCA.
  • The courts have explicitly given rules specifying that, during the inquiry, a police officer can not intimidate people and must write down minutes of the inquiry in the station log or the daily journal.
  • Only if the information does not reveal a cognizable offence and to the extent of finding the recognizability of a crime alone can preliminary inquiry be conducted. If a cognizable offence is revealed in the documents, the police must file an FIR, so they can not obstruct the operation under the pretext of a preliminary investigation.
  • Where a police officer fails to file an FIR, the informant can send the details to the Police Superintendent in writing. The witness or the perpetrator can even file with the Magistrate his / her case.
  • If a person is summoned on the basis of being mentioned in a petition or listed as a witness, the police officer shall request a formal subpoena under Section 160 of the Code of Criminal Practice, 1973, stating the date and time for attendance.
  • It’s also suggested that an advocate can join you if you go to the police department to lodge a lawsuit against a police officer.
  • During the event of police detention, there are two records you need to know about; search memo, and detention memo. An inspection memo is important because it states how you look like before being locked up and if you have any injuries before being locked up or not, so you won’t get injured during the investigation. Memo of Detention has clear details about the incident, including witness names, and there are no lies heard by the police perspective.

Accountability of Police in India

According to Article 246 of the Indian Constitution, ‘Police’ comes on the State List of the Seventh Schedule, and it is beyond the jurisdiction of the respective State Governments to make laws governing the police in their State. While policing regulations have a clear federal structure, India is essentially a quasi-federal country and so the central government is still active in police force control. Recruiting senior Indian Police Service (IPS) police officers, for example, is a consolidated mechanism controlled by the All-India Services; there are also many paramilitary forces, such as the Central Reserve Police Force or the Border Security Force, that come under the Central Government; the Ministry of Home Affairs also oversees the police. The Indian Police Act, 1861, is India’s basic law regulating the police; most states either follow this fundamental law or have laws that are moulded to it.

Several steps have been set in place in the past three decades to carry out major policing reforms. Around 1978 and 1981, eight findings were issued by the National Police Commission with different suggestions but no step was done to enact them. In the case of Vineet Narain v. Union of India, the Supreme Court acknowledged the immediate need to introduce these changes, following which two reports were submitted by the Ribeiro Committee; in 1998 and 1999 the Central Government appointed Padmanabhaiah Committee Report in 2000 and Malimath Committee Report in 2002.

All of these reports culminated in the Supreme Court judgment on Prakash Singh v. Union of India. The decision deals primarily with three facets of policing, organizing, flexibility, transparency and efficacy. The Supreme Court issued specific instructions to be pursued by the Center and Governments of the State before the law is passed in this regard.

The directions include:- each State Government shall create a State Security Commission to ensure that police are safe from unconstitutional political influence, determining the appointment and minimum tenure of Chief of Police (DGP); minimum tenure of other police officers including Inspector General of Police (IGP), Deputy IGP, District Supreme Police and Station Officer and Establish a Police Establishment Board that will decide matters relating to transfers, posts, promotions and other matters relating to the service of officers below the rank of Deputy Police Superintendent. Given the scope of this memorandum, our discussion will be confined to the Police Complaints Authority.

We studied the relevant laws and regulations, as well as the cases published on this topic from different legal sources and monitored the progression of concepts in those precedents. We have reviewed the recent police reports and studies in India that provide a rich source of analytical and statistical evidence, numerous publications on the topics and related books.Though few focus entirely on the legal aspects of the Indian police organization. We shift now to the first section of the report which will concentrate on the judicial remedy depending on the trial. This will be accompanied by a focus on the post-Prakash Singh Police Complaints Authority, and the National Human Rights Commission (‘NHRC’) as a police oversight system in the final section.

Public liability

Public law responsibility for police forces has its origins in the Indian Constitution and administrative law. For infringement of the constitutional rights set out in Part III of the Constitution, such as the right to life and freedom, protection from arbitrary searches and wrongful imprisonment, protection from oppression and unfair treatment, etc., the courts have regularly kept the police responsible under civil law and placed pecuniary responsibility on the State as punishment for the damage caused.

The precedent can be traced back to the critical 1983 case in which Rudul Sah vs. the State of Bihar, a three-judge Supreme Court bench under written authority, passed an order of restitution for the violation of Article 21 and Article 22 of the Indian Constitution. In this case, also after his acquittal, the defendant was wrongly held in prison for 14 years. After finding his imprisonment fully unjustified, he demanded redress for the wrongful detention. While there was an ordinary recourse open to the petitioner for seeking compensation in a civil suit, the Supreme Court held that it would not do justice merely by issuing a release order from unlawful custody, and in effect had the authority to compel the State Government to pay compensation. It directed the State to pay an amount of Rs 30.000 within two weeks of the order.

In State of Maharashtra vs. Ravi Kant Patil case, an inmate on trial was bound, arms tied with a rope and paraded down the streets, exposed to ridicule and indignation. The Supreme Court, based on Rudul Shah, complied with the High Court’s ruling that the State Government would pay a fee of Rs 10,000. However, the court deliberated about whether the particular police officer is to be found liable or the state to pay the fee. Arguing vicarious guilt, the court noted that, “He merely behaved as an official and also believed that he had reached his limits and therefore erred in taking the handcuff of the under-trial prisoners”.

In PUCL vs. Union of India, the question before the Supreme Court was whether it was available to the State to deprive a person of his life and rights rather than in compliance with the rule specified by statute, and yet to assert exemption on the basis that the deprivation of life happened when the State officers exercised the State’s legislative authority. On the contrary, the Court decided. Based on the case of Nilabati Behara, the court ruled that cash reward is an adequate and therefore a successful recourse in the event of a citizen’s constitutional right to life being infringed by a State public official who is vicariously responsible for their conduct.

The citizen’s argument is based on the concept of absolute responsibility under which the protection of sovereign immunity is impossible, and the person must obtain the amount of State insurance.

From a perusal of the above-mentioned precedents, the following points are apparent:

  1. It is clear that, aside from criminal and tort law, a breach of human rights related to police brutality will give rise to public law liability.
  2. The pecuniary liability for such a breach of human rights should be given.
  3. It is the Government that is held responsible and thus the State pays the responsibility and not the particular police officers found guilty of negligence.
  4. The Supreme Court ruled that the level of proof needed to show police wrongdoing such as abuse, coercion, and custodial violence, and to keep the State responsible for the same, was high. The recourse should only be made available for patent and incontrovertible infringement of human rights.
  5. The concept of absolute immunity does not extend to cases of infringement of human freedoms and thus can not be seen as a legal defence.

In the most part, the scope of situations in which the Supreme Court intervened is serious criminal abuse such as custodial murder, excessive brutality, rape, and involuntary disappearance. The court has consistently directed the state to pay the perpetrator and the relatives of the perpetrator in cases of direct and “serious abuse that shakes the court’s conscience.” No established definition has emerged on how to measure the quantity of compensation.

Criminal liability

The Code of Criminal Procedure 1973 (CrPC) provides procedural safeguards to government servants for criminal liability in order to prevent vexatious litigation against an official performing a public function. Police officers were held to be protected by Section 197 of the CrPC and more narrowly, under Section 132 of the CrPC. The provision of the above clause is that approval is obtained from the Central or Government of the State before any disciplinary proceedings are launched against a police officer suspected to have committed a criminal offence “whether acting or purporting to act in the execution of his official duties.” P.P. Unnikrishnan v. Puttiyottil Alikutty is a case in which two police officers were charged with having held a claimant in lock-up for several days unlawfully and torturing him. The Supreme Court division bench had to contend with protection provided by police officers under Section 64 of the Kerala Police Act under which procedural protections are in effect against the initiation of legal proceedings against police officers operating in good faith pursuant to any duty levied or jurisdiction granted by the Government.

Considering the precedents it is appropriate to draw the following conclusions. First, the substantive protection under Section 197 CrPC is only applicable if the convicted police officer may prove that the suspected illegal act was doing an official duty in the process of doing so. Therefore, in order to clarify whether or not charging a police officer needs prosecution, it depends on how the accused officer’s conduct has occurred in the context of his / her duties. Secondly, whether the action has a clear connection to the duty or not, the criterion on whether the police action occurred in the line of service success is. Thirdly, the Apex Courts have never found actions in violation of constitutional rights as being in the scope of official duties. It should be remembered, however, that the procedural protections provided for in Section 197 CrPC are sometimes misused by the police by not requiring the filing of complaints or First Information Report (FIRs) in the first instance, thereby constituting a major obstacle as an appropriate recourse for wrongdoing.

Rights of an arrested person before he/she deals with Police

  • Section 46 of the CrPC contemplates forms of detention, i.e. surrender to imprisonment, physical handling of the body, or confining it. The arrest is a curtailment of human rights. When subjected to jail, by gestures, or by actions, detention will be affected by physical communication. When force is required, it should not be more than is justly necessary because this provision does not grant the power to inflict death to a person who is not charged with a crime punishable by death or life imprisonment. Where a woman is to be detained, the police officer shall not contact the woman’s body for making an arrest unless the police officer is a woman, who will be believed to be detained on her submission to custody on oral intimation.
  • Section 50(1) of the CrPC provides that “any police officer or other person arresting any person without a warrant shall forthwith communicate to him full details of the offence for which he is being arrested or other reasons for such arrest.” Apart from the provisions of the CrPC, Article 22(1) of the Constitution of India provides that “No person arrested shall be held in custody without, as soon as possible, being told of the reasons for such detention, nor shall he be refused the right to consult and defend a legal practitioner of his choosing.” Centred on Supreme Court decisions in Joginder Kumar v. The State of UP, (1994) 4 SCC 260 and D.K. Basu v. West Bengal State, (1997) 1 SCC 416 Substantial amendments were enacted in Section 50-A of the CrPC in 2006 making it compulsory for the police officer to make an arrest to inform the arrested person’s friend, relative or any nominee about his arrest, to inform the arrested person of his rights and to enter the register maintained by the police. In this way, the judge is therefore under a duty to inform himself of police action.
  • Under Section 41 of the CrPC, broad powers are bestowed on police to apprehend, especially in committed crimes, without having to go to the Magistrate and seek an apprehend warrant. No lawful arrest may occur if there is no evidence or fair belief that the person has been engaged in a cognizable crime or commits the offence (s) listed in Section 41. The responsibility is on the police officer to convince the court who has the fairground of doubt in which the detention is questioned. With the exception of the above, Section 45 of the CrPC provides that members of the Armed Forces may not be arrested for anything done in the performance of official duties, except with the central government’s consent.
  • Section 54 of the CrPC allows for compulsory medical examination by a medical officer in the service of federal or state government, or by a licensed medical practitioner, in the case of any medical officer being unavailable. Only female police officers or licensed medical professionals may treat female arrestees. However, Sections 53 & 53A of the CrPC specify that if there are fairgrounds for assuming that an inspection of the accused person on charges of rape or other crime would include evidence for the conduct of any crime, it is lawful to inspect the blood, blood traces, sperm, hair samples, fingernail cuts using modern and experimental techniques including DNA and so on.
  • Section 49 of the CrPC states that there should be no more restriction than is justly appropriate to deter escape, i.e. fair force may, if required, be used for the purpose; but an arrest must take place before a person is held under some sort of constraint. It is unconstitutional to seize or prosecute without detention.
  • Section 50(2) of the CrPC provides that any person arrested without a warrant shall be informed immediately of the reasons for his arrest and, where the arrest is made in a bailable case, the person shall be informed of his right to be released on bail. Section 50 is compulsory and fulfils the requirement given for in Article 22(1) of the Indian Constitution.
  • CrPC, Section 51 requires a police officer to conduct a personal search of the people detained. Concerning the provisions of this clause, reference can be made to Article 20(3) of the Indian Constitution, which is a protection against self-incriminating testimonial coercion for the convicted. While an accused can not be compelled to show any evidence against him, by obtaining a search warrant, he can be taken by statute from the possession of the property of the accused.
  • Whereas a person has the freedom to meet and to be represented by a lawyer of his choosing following the arrest; the arrester has the right to free legal assistance. A society under the rule of law always has an obligation, aside from maintaining equal punishment, to provide for the protection of the criminal if he is too weak to do so. Free legal assistance to people of minimal means is a privilege that the modern State, particularly a welfare state, owes to its residents.
  • It is important to follow scrupulously the civil and legal requirements to present an accused person before a Judicial Magistrate within 24 hours of the arrest (Khatri v. State of Bihar, AIR 1983 SC 378). Section 57 applies exclusively to the issue of the incarceration period. The intention is to bring the accused with the least delay to a competent magistrate to try or commit. The right to be released from police custody by being taken before a Magistrate is essential to avoid apprehension and imprisonment, with a view to obtaining evidence or as a way of forcing individuals to give information.

Conclusion

Officers have the task of enforcing and upholding the rule of law, not legislation. This break from past and current traditions would demand that they are isolated and granted practical autonomy from outside unconstitutional power and influence. When the police are granted practical authority, the wrongs they conduct must be kept accountable. The current governance systems need to be reinforced and enhanced. Furthermore, alternative systems need to be developed operating independently to track police activities and investigate public complaints against the police. Police success as an agency, and police staff actions as individuals both need continuous supervision.

The other direction is to do everything possible under the existing system and structure to reinforce and improve policing. In addition to improving recruiting, discipline, and leadership practices, lower police personnel’s working and living conditions require significant improvement, an initiative that should begin by increasing the constabulary rank.

One is to create legislative administrative structures to ensure that the supervisory powers of state governments over their police forces have police service which is solely in accordance with the legislation. The reality that there is no such police force in India, as attested by the reports of numerous commissions and committees, the representations obtained by the commissions on human rights, the stories published by the press and the perceptions of the ordinary people on the ground. The need for restructuring of the police is clear and immediate. There are two ways in which parallel policing reforms will be followed. Providing ordinary citizens with a sense of security and attending to their grievances is dependent on establishing an efficient, honest and professional police force.

References

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