Home Code of Criminal Procedure Role of constitutional courts in cases of police brutality

Role of constitutional courts in cases of police brutality

April 27, 2023

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This article has been written by Koushik Chittella, pursuing a Diploma in Legal English Communication – oratory, writing, listening and accuracy and the article has been edited by Oishika Banerji (Team Lawsikho).

It has been published by Rachit Garg.

Introduction

The present article briefly discusses police brutality and the measures that can be taken by the courts to avoid issues of police brutality. Constitutional courts are the key to saving the rights of a citizen in a democratic country like India. This article also covers aspects of the rights of police, the rights of an arrested person, custodial violence, the rule of law, human rights and the NHRC, precedents, and measures to prevent police brutality, thereby answering the final question as to whether the constitutional courts can really not do much about police brutality or not.

All you need to know about police brutality

Police brutality can be defined as the brutal acts carried out by police officers for instance illegal detention, unlawful killing, beating, custodial violence, custodial rape, threatening the confession of an accused in custody, etc. In recent times, there have been various instances where police brutality can be seen through the mass media. The prime reason behind the increase in police brutality might be because of the absence of anti-torture legislation (a law that explicitly prohibits torture) in India. The secondary reason might be that the citizens are not aware of their rights which causes them to fear the police. But, when it comes to bringing action against them and punishing them, the courts fail due to various reasons. Some of them might be:

The police officer pleads sovereign immunity and uses Section 197 of the Code of Criminal Procedure, 1973 (CrPC) as a defense.
The acts of the police even though are unjustified, the shreds of evidence are tampered with, and the unjust nature of the act done by him, cannot be proved in a court of law.
The police personnel present in the police station at the time of the commission of the brutal act do not wish to be a witness in the court.
As the personnel present in the station at the time of the commission of the act protect and do not confirm the acts done against the person accused of police brutality, it is next to impossible to prove a case of police brutality unless recorded or proved with the aid of the police.
The victims are usually threatened not to move to the court, and if so done, they will be illegally arrested as a consequence.
In most of the cases which include custodial violence and police brutality, the accused were killed which caused the suits not to be proved according to the procedure established by law.

Instances of police brutality

There are various instances of police brutality throughout the country. Here are some:

Two shopkeepers Jeyaraj and Bennicks (father and son) were selling mobiles at their shop. The police ordered them to comply with COVID lockdown rules where shops were to be shut at night. Upon refusal, both the shopkeepers were arrested. After three days, Bennicks was admitted to the hospital with severe injuries, where Bennicks died the same day and Jeyaraj died the next morning.
Kasturi was residing with her husband and son in Tamil Nadu. 10 police personnel took her husband forcefully without showing a warrant. When the son tried to stop them, they hit the son and the son fell down as a consequence. After two days, she was called in and made to sign a blank paper. Later, she was taken to the hospital, while asked the reason they said that her husband fell ill, but he was already cremated by the time she reached the hospital.
Vikas Dubey, a gangster was arrested for killing police, while he was being taken to jail, the vehicle he was being brought in, was overturned and met with an accident. The police mentioned that the vehicle had a flat tire and while fixing it, Dubey snatched the gun and tried to shoot at the police. The police had to shoot him as that was the only outcome. There were clues that the whole act was staged and it is another one of the police’s brutal acts.

Statistics showcasing police brutality

UP alone saw over 8,742 encounters since 2017
According to CNN’s statistics, only 21 officers out of almost 600 recorded custodial deaths faced conviction between the years 2005 to 2010.
According to MHA’s statistics, 669 people died in custody during the years 2017 to 2022.

Important provisions related to the rights & powers of police officials

Various provisions provide for the rights and powers of the Police, their rights are conferred in the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872, and The Police Act, 1861.

CrPC, 1973

The Code of Criminal Procedure, 1973 is a comprehensive procedural law dealing with the procedure for regulation of criminal trials in India. Under CrPC, we have various provisions dealing with the rights and powers of the police. They are

Section 41: This section is covered under Chapter V of the CrPC (arrest of a person) and the section speaks about the instances where a police officer may arrest without a warrant. Under this Section, a police officer can arrest a person to prevent him from committing further offences upon credible information, or when a person commits a cognizable offence in his presence.
Section 41A-D: These sections deal with the notice of appearance to a person, the procedure of arrest of a person, control rooms, and recording of information and also explicitly mention the storage of the recorded information for 18 months, rights of an arrested person to meet an advocate of his choice during interrogation, and not throughout the course.
Section 129,130: These Sections are covered under the Chapter X of CrPC, they deal with the dispersal of assembly by use of civil force on the order of a competent person, and the use of armed forces to disperse assembly.
Section 151: This section deals with arrest by a police officer to prevent the commission of a cognizable offence and the detained person must be produced before a Magistrate within 24 hours of his detention.
Section 154: This section deals with information in cognizable cases. Under this Section, any oral complaint must be reduced to writing and if the offence falls under Sections 354, and 376 of IPC, the information being recorded must be by a woman police officer.
Section 161: This section deals with the examination of witnesses by the police where the witness must answer all the questions posed by the police officer. The Section also says that an offence falling under Sections 354, 376 of IPC must be recorded only by a woman police officer.

Under the Evidence Act, 1872

Section 25: Under Section 25, any confession made to a police officer is deemed irrelevant and it shall be inadmissible as evidence.
In Narayan Rao v. State of Andhra Pradesh (1957), the court held that a confession made to a police officer equal in title or position as a Magistrate shall also be deemed inadmissible.
Section 26: This section speaks that any confession made to an officer shall be not admissible in a court unless it is done in presence of a Magistrate.
Section 27: This section speaks that if an accused confesses a fact, that leads to a discovery of new facts, the confession shall be deemed admissible in a court of law. In Damodar Prasad v. State of U.P (2019), the Honourable Allahabad High Court stated that the confessions made inadmissible under Section 25, if lead to a discovery of new facts, shall be admissible under this Section.
Section 28: This section lays down that if the impression of the confession made was that it was obtained via threat, inducement, or promise, once it is fully removed, the confession shall be deemed relevant to the Court. In Abdul Razak Shaikh v. State of Maharashtra (1987), the Bombay High Court ruled that if the impression of threat or inducement is fully removed, it shall be said as a valid confession.

Police Act, 1861

Section 29: This section speaks about violence by police officers on a person in custody, and the officer shall be liable for a penalty or imprisonment not exceeding three months.
Section 31: This section speaks about the duty of a police officer to maintain peace and order on public roads/streets/places. Disobeying an order of a police officer shall attract a fine not exceeding ₹200.
Section 34: This section empowers a police officer to take into custody any person without a warrant if he commits any of the acts mentioned in the eight clauses. These offences include slaughtering cattle, obstructing passengers, indecent exposure, being found drunk, and riotous.
Section 43: This section protects acts done under a warrant signed by a Magistrate.

These laws provide for major powers of police and their rights while performing their duty. Where some rights give clear indefinite protection to police, some also curtail the protection given by law. It is equally important to discuss the rights of a person concerning conviction to understand police brutality.

Rights conferred to a person under the Indian Constitution

There are various rights awarded to a person under the Constitution of India. These rights are very critical for an arrested person. Three articles in the Indian Constitution speak about the protection of a person concerning conviction, etc. they are:

Article 20

This article of the Indian Constitution speaks about protection to a person in respect of conviction of offences. It provides for three rights, namely, ex-post-facto law (where an act, when committed, is not an offence, but later made an offence, the person is not liable to be punished), Double jeopardy (No person shall be punished for the same offence twice), the right against self-incrimination (No person shall be compelled to witness against himself).

Article 21

This article of the Indian Constitution provides for the Right to life and personal liberty, and it includes various rights such as the Right to privacy, the right to free legal aid, the right against public hanging, the right against handcuffing, the right against delayed execution, etc. Articles 14, 19, and 21 of the Constitution are referred to as “the golden triangle”. The right to life and personal liberty is a crucial right given to the citizens of India. Any person can initiate a proceeding in the Court if his right to life and personal liberty is infringed and approach the High Court or the Supreme Court.

In the case, Raghbir Singh v. State of Haryana (1980), the court in the instant case stated that police torture is a shameful act done by the guardians of the society, and it is not only an erroneous act but also hinders human rights guaranteed under Article 21 of the Indian Constitution.

Article 22

This article of the Indian Constitution speaks about various rights of an arrested person or accused, namely informing of the grounds of arrest, right to be produced before a magistrate within 24 hours, right to be defended by a lawyer of his choice, right while he was arrested under PD Act, 1950 (he shall not be kept in custody for more than 3 months without a competent court’s approval).

Police brutality & rule of law

The rule of law consists of the supremacy of law, equality of law, and equal protection by law. The rule of law speaks that the law is supreme, and no one will be punished except for a breach of law and not for anything else. He shall be punished according to the procedure established by law, and a police brutality is an act against the rights of a person, and the rule of law does not permit the use of criminal force on an accused. Brutal acts of the police do not fall under the due procedure established by law.

In the words of Justice Krishna Iyer in the case of Kishore Singh Ravinder Dev v State of Rajasthan (1980), “this country has no totalitarian territory even within the walled world we call prison. Articles 14, 19 and 21 operate within the prison. The state must re-educate the constabulary out of their sadistic arts and inculcate a respect for the human person, a process which must begin more by example than by percept if the lower rungs are really to emulate, nothing inflicts a deeper wound on our constitutional culture than a state official running berserk regardless of human rights”.

Human rights and police brutality

Police are known as the essential protectors of the citizens, but there are thousands of cases where the police officers exceeded their power and amounted to a violation of human rights. Police are compelled by various parties to deliver immediate yet satisfactory results that cause the officers to exceed their power and act cruelly in turn abusing their power. The brutal acts by a police officer on the accused in the custody of police are considered evil as the body is primarily put in place to protect the people. The brutal acts infringe on the fundamental right of right to life provided under Article 21 of the Indian Constitution.

It is hard to prove the existence of police brutality in a case but it can be seen that the victim of police brutality contended in the Court that he was subjected to brutality. The case of Tuka Ram v. State of Maharashtra (1978), also known as the Mathura rape case, is an example of police brutality (custodial rape), the case could not be proved as the victim hasn’t resisted the sexual acts of the police constables, and she was not found with injuries when she was examined. The Court held that she had sexual intercourse while she was in custody but that doesn’t fall under the ambit of rape under Section 376 of the IPC, 1860, hence the Apex Court acquitted the police constables. This case led to a very important rule that women cannot be called into the police station after sunset and before sunrise.

As there was a significant rise in custodial violence, rape, and other brutal acts in the country, the National Human Rights Commission was established on 12th October 1993 under the Protection of Human Rights Act, 1993. The Commission is merely a recommendation and advisory body which can investigate an issue after a petition is filed or suo moto. NHRC can move the court in case of any illegal activity by the authorities. It can intervene in judicial proceedings if the case consists of a violation of human rights. The Committee acts as a watchdog over police and issues guidelines to be followed.

Recommendations by NHRC

The National Human Rights Commission made various recommendations on police reforms. They are

Insulating the police authorities from political pressures to secure fair administration.
Setting up of a body called Police Security and Integrity Commission (PSIC) at a State level to ensure the improvement of the quality of police and to dispose of cases where the officers are subjected to illegal orders by superiors.
Constitution of a new non-statutory body called “District Police Complaints Authority” to deal with the complaints of the public relating to abuse of power by police officers.

Can constitutional courts really do not much about police brutality

The constitutional courts can do a lot about police brutality. Here are some measures that can be done by the Courts to decrease the cases of police brutality:

Installing cameras in police stations and producing the footage to a competent authority to review the quality of the personnel and their behaviour towards complainants.
Failing orders of the courts, the police officers, should be punished with either imprisonment or such measure that would instil a duty to follow the order.
The personnel must maintain a diary of the police station and the diary’s copy must be furnished to the district complainant authority once every 2 months, to cross-check the footage produced and the diary produced.
The complainants must be enquired about the acts of the police officer towards them, once in every while to protect society from police brutality.
There must be a strict provision promoting the awareness of the rights of a person dealing with a police officer.
The police must hold a body cam that cannot be turned off while transporting an accused from one place to another and the body cam’s footage must be preserved till the case is adjudged by the Court.

Landmark cases

Rudul Shah vs. State of Bihar (1983)

In this case, the petitioner was detained for over 14 years after his acquittal by the Court. The petitioner sought compensation for his illegal detention. The Supreme Court ruled that the detention was wholly unjustified and ordered the Bihar Government to pay a sum of ₹30,000 and ₹5,000.

Joginder Kumar v. State of UP (1994)

In this case, the facts were that the petitioner, a lawyer, was detained illegally after he was called for questioning by the police officers. When the family members of the petitioner enquired about his whereabouts, the police lied about his location. The Court held that the detention was illegal.

D.K. Basu v. State of West Bengal (1996)

In the case of D.K. Basu, the Supreme Court recognized custodial violence and police brutality. The Apex Court stated that “Custodial violence is an attack on the dignity of an individual”. The Court in this case gave several guidelines to be followed by the police while arresting a person.

Police personnel are to bear name tags with designations while arresting or interrogating.
An arrest memo is to be prepared and a copy of the same is to be attested by a family member or any person respectable in the locality. The memo must consist of the date and time of arrest and the same shall be signed by the arrestee.
Where, at the time of arrest, no family member is present, he shall inform a friend, relative, or any other person interested in his welfare about the arrest and location of his detention.
The person arrested shall be made aware of his right to inform someone of his arrest.
An entry is to be made in the diary of the concerned police station, which includes the date and time of arrest, the person informed of his arrest, and a list of police officers who had custody of the arrestee.
All the injuries on the arrestee are to be recorded at the time of arrest and shall be signed by the arrestee and the police officer.
A medical examination of the arrestee is to be done every 48 hours by a doctor during the detention.
All the copies of documents are to be sent to the Magistrate.
The police control room of the concerned district is to be made aware of the arrest within 12 hours.

Prakash Singh v. Union of India and Ors (2006)

In the instant case, Prakash Singh, the petitioner who served as the Director General of Police in the State of UP, post his retirement filed a Public Interest Litigation in the Supreme Court seeking police reforms. The Apex Court gave mandatory provisions to be followed by every State and Union Territory, they are

A fixed tenure for the post of DGP (Director General of Police), IG (Inspector General of Police).
To Insulate police from political influence, the Court directed for establishment of Police Establishment Boards (PEB), the body shall have the power to postings and transfer police.
Establishment of a State Police Complaints Authority (SPCA), where common people aggrieved about the services of the police, can approach the forum.

The directives given in this case by the Apex Court were not fully complied with by any state, but 18 states have amended or passed their Police laws to progress toward the directions given by the Apex Court.

Paramvir Singh Saini v. Baljit Singh & Ors (2020)

In this case, the petitioners filed a Special Leave Petition pleading with the Court to check and issue directions regarding the installation of Closed Circuit cameras in the police stations. The Supreme Court directed states to install surveillance cameras in the D.K. Basu case and the Shafhi Mohammad case, but it was not made necessary by the Apex Court. The Apex Court in this case gave orders consisting of several rules and guidelines:

An oversight committee to be set up at district and state levels.
State Human Rights Commission to be set up in every State. The positions are to be filled as and when a vacancy arises.
Every police station has surveillance cameras with night vision and audio recording capability.
The locations of CC cameras must include all entries, exits, passageways, lock-ups, and all other areas so that no area is left exposed.
The footage is to be kept available for 18 months
The locality should be informed of the presence of CCTV in the station, and the police should make sure that there are posters mentioning that they are under CCTV camera surveillance when they are in the police station.
Allocation of proper and sufficient funds by the financial departments of the Centre and States to ensure that the orders are followed.

Conclusion

Police brutality is one of the heinous crimes by the authorities. Constitutional courts can do much about police brutality. The directions given by Courts must be complied with mandatorily by the police and failing which, the Courts must impose severe penalties and terminations. The legislature must pass a law curbing the brutal acts, and the Centre should pass an anti-torture law. The cases of police brutality are increasing each day, and the atrocities have no limit where it is extending from beating, and illegal detention to rape and death. The legislature must bring measures and directions to stop these illegal happenings, and every police station must install CCTVs and all the recordings should be produced before a competent authority to verify the law carried out in a police station. There must be an authority that makes the in charge of a police station liable for the acts done in his police station. There must be a clear review of the existing laws, and a deep investigation is crucial to protect the rule of law in India and to protect the citizens from police brutality.

References

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Role of constitutional courts in cases of police brutality

Introduction

All you need to know about police brutality

Instances of police brutality

Statistics showcasing police brutality