This article is written by Kartik Bohra, Symbiosis Law School, Hyderabad. In this article, the abuse of power by police officials by taking the law into their hands have been discussed.

Introduction

“If the Government becomes a lawbreaker and brings contempt of law; it invites every man to become a law into him”.

Police authorities are considered as one of the most significant sections of society. These officials happen to be for protection and peace in society. The police authorities are considered as the most appropriate person at the time of crisis and danger in the country. According to Black’s Law dictionary, the term ‘police’ is defined as “the governmental organization worked for the welfare of the citizens, maintain public order and safety and the investigation of the crime.” 

Police officials are expected to be courageous and respectable persons in the society as they serve for the security and protection of a nation. The main task of the police is to maintain the law and order situation in the country. The police officials are provided with great responsibilities, roles, functions, and powers to safeguard the citizens of the country. These officials are vested with varied powers in their hands to carry out some necessary functions which sometimes may lead to misuse of the vested power and therefore, it infringes the basic fundamental rights and human rights of the citizens which will be discussed further in the article.

Police officials who carry out some illegal activities and misuse their powers to run a department are taking the law into their hands and threatening the security of a nation. The police must be punished for their acts which are outside the scope of their duty. Fundamental principles of criminal jurisprudence also provide for the fair and reasonable investigation of the accused. Police officials abuse their powers and cause unnecessary torture on the victim. Various provisions are given under Code of Criminal Procedure, 1973 which aim to safeguard the rights of an accused person but in spite of these provisions, there are continuously growing incidents of gross violations of inmates’ rights in the prison.

Unlawful acts of the Police

The legal functions of police authorities are to investigate the case and arrest the offenders of the crime in their legal capacity. Police officials have to perform certain duties to regulate the law and order in the country and prevent the potential wrongdoers from committing any offence. The powers of the police are defined in Chapter XII of Code of Criminal Procedure, 1973. Section 154 to 176 of CrPC contains certain provisions that have to be followed by the police authorities while doing investigation and the arrest of an accused person in their custody. The primary role of the police is to uphold the sovereignty and integrity of an individual in society. But it is often noticed that the police officers sometimes abuse their powers while officially discharging their public duty.

They sometimes indulge in various illegal and unscrupulous activities for personal gain. The use of excessive power by police officers leads to miscarriage or disguise of justice and violates the human rights of the citizens. These inappropriate and illegal acts are considered as police misconduct and lead to obstruction of justice. The powers given to police officers must be used judicially and reasonably for the welfare of the people. These powers are given to them to fulfil their legal responsibility towards the citizens of the country. Police must act rationally to uphold the constitutional rights of the people. Some of the illegal or misconduct actions of the police are:

• Fake encounters
• Custodial or Lockup Deaths
• Illegal and false arrest
• Committing perjury on the witness in the court of law
• Tampering with the evidence

Main issues

Illegal Arrest and Detention

Police officials sometimes make arrest and detention due to personal grudges, political influence, or in retaliation for complaints of police abuse. These police officers sometimes fail to follow the guidelines given by the court in the case of D.K Basu v. State of West Bengal (1997), which includes producing the arrested person before the magistrate in 24 hrs of the arrest. Individuals who are vulnerable and poor in society are more likely to be victims of this illegal act by police officers. This is happening in India because of greater influence from the political side.

Sometimes these police officers are unable to send the person below the age of 18 years to juvenile homes due to some political influence or maliciously and miserably fail to provide special protection to these individuals. It is the duty of the state to protect and uphold the basic human rights of an individual in society. The word “Arrest” is not defined anywhere in the Code of Criminal Procedure but Section 46 of CrPC defines “Arrest how made”. It provides that a police officer has all powers to take all necessary means to arrest an accused person. It means that police can take custody of that person and produce him before the nearest magistrate within 24 hrs. of the arrest. But due to some personal gains, police officers take illegal means to arrest a person and deprive a person of his or her liberty. In the case of Boya Nallabothula Venkateswarlu v. The Circle Inspector of Police, Nandikotkur (2010), the High Court of Andhra Pradesh held that “further inquiry cannot be granted in the case where allegations were made against the police for false and illegal detention because it will dilute the issue and give an opportunity for tampering with the witnesses”. Thus, there should be judicious use of the power given to police officers and the need to curb the illegal detention of the individuals in society.

Extrajudicial Killings

Extrajudicial killings or fake encounters are a blot on the judiciary system of our country. There are a lot of incidences in India where these killings are happening and are against the basic principle of human rights in India. Extrajudicial killings are generally referred to as cases where the state kills citizens with no judicial examination or oversight. These killings are arbitrary and against the principle of rule of law. The International Covenant on Civil and Political Rights (ICCPR), to which India is a signatory, prohibits these killings and calls them an arbitrary deprivation of life and personal liberty.

Arbitrary killings of human beings are considered as the highest form of violation of constitutional values and human rights. Police authorities must not use unnecessary force to combat criminals. Sometimes police use force to seek confessions from the hardened criminals. These barbaric deaths by police officials must be stopped as police have no authority to give the death penalty to the accused persons. Thus, there is a need for strict laws against it and an inquiry must be set up to investigate the causes of death which occur in the course of police actions.

Custodial Death

The rules and regulations through the law always discourage the acts which are against the public policy and peace in the society. Taking custody of the criminal and trying to impose punishment is a productive way to decrease the crime rates in society. Custody in the general sense is defined as putting restrictions on the freedom of movement of an individual. But nowadays, it has been observed that there is a significant increase in the death and violence of an accused person in the police lock-ups. Many deaths have taken place in the custody of police but no attention has been paid to it by the administration. Custodial deaths are unacceptable in a democratic country like India where each and every citizen of the country has the right to life and personal liberty enshrined under Article 21 of the Constitution of India.

Various provisions are given under the Code of Criminal Procedure, 1973 which aim to safeguard the rights of an accused person but in spite of these provisions, there are continuously growing incidents of lockup deaths in India. It is noticed that police officials sometimes use third-degree methods to extract information from the accused which is inhumane and illegal. Death of accused or suspected persons is increasing in India even if there are provisions incorporated under the Indian Penal Code, 1860.

Our constitution provides fundamental rights to every citizen of the country which includes the accused. Some of the most important fundamental rights are conferred as equality before the law and equal protection of the law (Article 14), Right to life and personal liberty, and right against self-incrimination (Article 20(3)). These rights are not only available to the citizens but also to the aliens. Incidents such as custodial deaths are against the provisions of the Constitution of India. In the case of Maneka Gandhi v. UOI (1978), “the court observed that Article 21 not only protects the person against the substantive law but also extends the protection to the procedure laid down which must be fair, just and reasonable.”

A police officer has the power to arrest any person to investigate the case further but has no power to use unnecessary force to extract the information from that person. Also, the power given to the police officer is discretionary as the word “may” is used in Section 46 of CrPC. So, it is his duty to arrest a person according to the facts and circumstances of the case and not otherwise.

Unfair Investigation and Trial

Incarceration barbarity has been validated by the popular retributive- deterrent philosophy, and widely accepted by many criminal jurisdictions. Every person has a right to have a free and fair investigation and trial according to criminal jurisprudence. It is obligatory on the part of the public officer to conduct the investigation in an accurate and fair manner as provided under the code. The investigation led by the police officer must be fair and reasonable according to the basic principles of natural justice and rule of law. It is not only the duty of the investigating agency to provide fair investigation but the court also needs to ensure that investigation is fair and in accordance with the various provisions of CrPC.

In West Bengal v. Sampat Lal (1984), it was held by the court that “the court has residuary power to issue certain directions to the police officers when the requirement of the law is not taken into consideration and investigation is unjust and unfair. Thus, custodial deaths are in violation of the basic principles of criminal jurisprudence.”

Need for amendment in the legislations

Article 21 of the Indian Constitution provides for life and personal liberty to each and every individual in the country. The duty performed by police officials is always considered as a major concern in society. The Code of Criminal Procedure provides wide and discretionary powers to police officers to arrest, search, and seize, etc. to reduce criminal matters in society. These powers are absolute and often misused by police for personal gain. This is increasing at an alarming rate due to the lack of accountability by police and the state. In India, the legal requirements to initiate criminal proceedings against the police officer is very complex and leave most of the atrocities unaccounted for.

In 2018, according to the National Crime Records Bureau (NCRB) report, only 25 cases out of 89 incidents were registered and charge sheets were filed against the police officers for violating human rights. Further, it was submitted that not even a single police officer charged with the murder was convicted. There is no independent body in India which ensures for the conviction of accused police officers against the civilian complaints. In 2006, the Apex Court directed all the state governments to formulate an independent body named as Police Complaint Authority (PCA), to deal with the illegal acts and misconduct of police. But many states did not take this into consideration and ignored several warnings given by the Judiciary. It is the moral as well as the legal responsibility and accountability of the State and the Union of India to protect a person’s fundamental rights. There have been a number of cases where it is argued on behalf of the centre that it is the duty of the State to protect the law and order in the State, and the Centre is not responsible for the acts of the state governments. But this contention of the Centre is not valid in the eyes of the law as it is the duty of the Centre to preserve the basic fundamental rights of citizens of the country and protect the provisions of the constitution.

Thus, serious discourse is needed to curb the offences committed by police officials while discharging their public duty. There is a need to amend certain provisions in The Code of Criminal Procedure and the Police Act, 1861 to ensure police accountability and responsibility towards the citizens. There is a need to make provisions to ensure early disposal of these cases and the conviction of an accused. There should be provisions in Criminal Law to give strict punishment to offenders of human rights to uphold sovereignty and integrity. 

Landmark cases and incidents

There are various guidelines given by the Indian Judiciary for curbing abuse of power by the Police officers. Some of the landmarks cases are:

In the case of D.K Basu vs. State of West Bengal (1997) the executive chairman of Legal Aid Services, a registered non-political organization submitted a letter to the Chief Justice of India regarding the deaths occurred in police custody and lock-ups. It was also mentioned to examine the matter seriously and to introduce “custody jurisprudence”. It was also stated that various efforts are taken by police authorities to sleek over matters of custodial deaths and hence offence goes unpunished. Considering the various aspects and importance of the raised issue, the letter was taken as a “writ petition” and notice was given to respondents.” At that time, there was no proper machinery to be followed in cases of custodial deaths.

The Supreme Court held and gave certain guidelines which must be followed by the police officers while investigating the case.

• It is the duty of the police officer to arrest a person and handle the interrogation in an accurate and fair manner according to the provisions of the Code.
• The police officer must prepare a memo of the arrest and must abide by all the procedures. Also, a person who is in the custody of the police has the right to have one family member or friend at the time of arrest and duty of an officer to give the place and time of arrest of an accused.
• The information to the family member or friend must be notified within the 8-12 hours of arrest.
• The diary should be maintained by the officers who disclose the date and time of arrest and other required information of family and friends.

In the case of Sunil Batra v. Delhi Administration, (1979) it was observed by the court that inhuman torture and treatment is against the Article 21 of the constitution of India which includes the right to live with human dignity. The rights guaranteed under Article 21 are not merely a fundamental right but also a human right.

In another case of A.D.M Jabalpur v. Shiv Kant Shukla, (1976) Justice H.R Khanna observed that “no one can be deprived of his right to life and personal liberty arbitrarily without the provisions of the law. And it extended the meaning of the term “life” which is something more than mere animal existence.”

In the case of Khatri v. State of Bihar, (1980) “it was held by the SC that the police officers must be punished who barbarically blinded 30 prisoners by pouring acid. Further, the SC condemned and held that this barbaric torture by the police officials is against the provisions of Art. 21 of Constitution of India.”

In the case of R.P Kapur v. State of Punjab, (1960) it was held by the court that the investigating officer has certain duties regarding the procedure of fair investigation and he must not bolster up a prosecution case with the false investigation and unvarnished truths.

In the case of Munshi Singh Gautam v. State of Madhya Pradesh, (2004) it was held by the court and expressed its concern over the increasing cases of custodial violence. The court observed that the brutal act in the custody of police has put a scar on the provisions of the Indian Constitution and it raises serious questions about the credibility of the rule of law and protection of basic human rights.

In Prakash Singh v. Union of India, (2006) the Hon’ble Supreme Court held and observed that the state must ensure a fair investigation and the government should take suitable steps to bring police reforms in the country for better administration of law and order in the society. The government must frame appropriate guidelines and legislation for the same.

 Suggestions

1. There should be the incorporation of new provisions that specifically deal with the issue of the atrocities of police officials especially for custodial deaths as it was also suggested by the law commission report. 
2. The 3Ps paradigm should be adopted to combat these offences. The 3Ps are Prosecute, Prevent, and Protect. Prosecution refers to effective law enforcement action taken in order to eliminate the crime. Rigorous punishment should be awarded to such criminals for violating and taking away people’s basic fundamental rights.
3. The principle of vicarious liability must be applied to the State, as a direct result for the commission of the crime of custodial deaths. And Police authorities must be held accountable and responsible for failure on their part to prevent the natural death of an accused in the lockup. 
4. The state must possess an attitude of zero tolerance towards the perpetrators of the crime and incorporate such laws which give the strict penalty to the perpetrators of the crime. An effective judicial system is the root cause of good governance and peaceful society. 

Conclusion

The study concludes that the misconduct of police during an investigation is increasing in India. It is necessary and permitted by the law to interrogate an accused person but at the same time it is also provided that police have no right to take the law into their hands and no illegal methods should be adopted to investigate the case. To conform with the constitutional provisions and human rights aspects, it is necessary that these offences against the arrestee must be curbed in a democratic country. The Supreme Court has taken this matter seriously and raised its concern in the number of cases of misconduct by police. There is no specific law in India to deal with the offence committed by the police officers and thus, no moral, as well as legal consideration, is taken by the legislation. Though the Supreme Court suggested and recommended certain guidelines in various cases of custodial violence legislation has not been taken into consideration and illegal actions of the police are increasing at an alarming rate due to various factors in India. 

Thus, there is a need for strict rules and regulations to curb these practices in India. It is necessary that these atrocities by police officers must be regulated and curbed in India to uphold the sovereignty and integrity of constitutional and human rights provisions. 

References

• https://indiankanoon.org/doc/445276/
• https://indiankanoon.org/doc/1569253/
• https://ncrb.gov.in/prison-statistics-india-2018
• https://www.livemint.com/Politics/a6DRKacMzfzqQnU0vl3S5N/Rape-cases-fasttracked-internal-security-tightened-says-P.html 
• https://ujala.uk.gov.in/files/Ch10.pdf 
• https://www.worldwidejournals.com/indian-journal-of-applied-research-(IJAR)/recent_issues_pdf/2018/May/May_2018_1525175288__81.pdf 

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