Written by Saadia Sharma
Class 11, Vivek High School, Chandigarh
Source: Daily Star
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
Police is a structure and organization of force in the states. It is the first and primary step in the formation of a case, a vital part of the legal system. Police brutality can be very simply defined as the excessive and unwarranted use of force against the civilians of a country, that is often illegal. India has been a victim of police brutality way before it formally existed as an ‘Independent Republic’ in the world. We would think that living in the 21st century, such a thing is not existing anymore given what all is going around the world. It pains the author to say that it is very well there, worse than ever. Through this article the author will be discussing provisions against police brutality, how it is an issue important enough to be called a crisis, the problems causing this issue to emerge and what civilians can do to bring this to a halt once and for all.
Keywords: Police brutality, Human rights, Atrocities, Pandemic, Abuse of power
Police is formally a governmental department charged with the perversion of public order, the promotion of public safety and the perversion and detection of crime. Police brutality is a legal offence because it is a violation of the rights of an individual. The use of force by this means is illegal and often unnecessary when it exceeds the limit of an understandable amount of force required to prevent an incident from diffusing or to protect oneself or someone else from any sort of harm or danger. It can be in the form of physical (hitting, choking or using of tool such as batons, pepper sprays and tasers), verbal, or sexual abuse, false arresting or racial profiling (specific targeting of a person on their racial or ethnic group). In India, usually a specific stratum of the society is constantly seen as the victim to such an abuse.
These are usually the weaker sections of the society who could be lacking educationally, economically or population, and to larger extents this threatens the well being of the general public as a whole. Most of the time, people who are targeted are either in loss of having contacts, or knowledge about the provisions safeguarding them and the way to get justice or even if that exists due to the status of the police in the society and their unified and feared persona. Given the current situation of the Global Pandemic and the tension rising between the countries, police brutality is not coming up in the news because of the lack of importance.
The lack of attention and action of the ends of the media, famous personnel and the authorities concerned has caused this issue to come on the verge of becoming a crisis.
The existence of certain factors such as India’s large population, social division, excessive practice of corruption, and overburdened judiciary are the cherry on the cake, causing this issue to only ever grow.
Provisions Under Domestic And International Legislations:
One of the important purposes of the UN charter is to promote and encourage human rights and fundamental freedom.
Provisions for the same have been mentioned in the International Covenant on Economic, Social and Cultural Rights, Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
Some of such international provisions are:
Article 3 : Everyone has the right to life, liberty and security of person.
The article in the simplest sense is guaranteeing the dignity of a person as a human being first and everything is decided from here on.
Article 5: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. This article is providing humans the title of humans in practice. The author feels ashamed to have seen that such basic provisions have to be guaranteed legally in the 21st century and are not deemed as the moral responsibility of a person.
Article 8: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
The fundamental rights are the basic human rights guaranteed to a citizen that cannot be violated or dismissed even in case of an emergency. This provision ensures their enforcement and necessary remedies required in cases of violation.
Article 9: No one shall be subjected to arbitrary arrest, detention or exile.
This simply is a mechanism for modern day societies, preventing the misuse of power and jumping back to the ancient system of arbitrary and tyranny.
Article 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Conflict of opinions and thoughts often result in relatively violent measures carried out by the powerful (here, police) against the inferiors (the general public at large). The above stated article gives everyone the basic right of freedom and individuality, given a society can firstly not be constituted by people of a certain mentality, hence diversity in beliefs and secondly the freedoms gives a chance of improvement for certain wrong practices being carried out since ages, like the practice of untouchability. It’s the freedom of expression that forms the basis of right and wrong in the world today, correcting thoughts and value ideals of millions in certain cases where they are clouded by personal privilege and superiority like the concept of racism.
Constitution of India:
For domestic provisions, part III of the Indian constitution guarantees its citizens the fundamental rights whose violation is threatening the basic purpose of the constitution. Some of them are Right to Life and Liberty (article 21), Protection against Arbitrary Arrests and Illegal Detention, Protection from Discrimination and Unequal Treatment etc.
NHRC As An External Mechanism Of Police Accountability:
Under the Protection of Human Right Act, 1993, The NHRC has the power to enquire Suo -motu or upon petitions filed on matters pertaining to human rights violations. It is allowed intervention in any judicial proceeding on human rights. It has the power and ability to summon or seek attendance of witnesses, procure documents and evidence, visit prisons and detention centres, and make recommendations to the Government. Section 18 (c) of the Act gives the NHRC to grant compensation in case of human rights violation by the police. Any death, regardless of its nature (natural or otherwise) is to be reported to the authority. But the NHRC also poses a problem given the limitations on its powers making it an obligatory body.
It can only make suggestions and has no power to enforce them. It does not possess any mechanism of investigation and in the majority of the cases it asks the concerned (central or state) government. Due to NHRC not being able to investigate an incident after a year of the occurrence of the instance, a high number of cases go un catered to. The government has the power to either blatantly reject the recommendations made by the NHRC or partially comply according to their will. There is also a restriction on the powers to enquire volitionally cases done by the armed forces cause a lot of incidents to go unaddressed.
Police Atrocities In India:
Police brutality has existed on the Indian subcontinent long before there was an Independent India. We have known about the violence carried out during the colonial time period, killing of peaceful satyagrahis, suppressing any public revolt by the method of force, etc. We often find ourselves recalling the infamous ‘Jallianwala Bagh’ Massacre which is one of the very significant cases of police brutality in our history which has reminded us time and again of the misuse of powers by the powerful against the powerless.
Even after being an independent republic for over 73 years the cases of police brutality are so gruesome that it chills one’s soul. One would think that we as Indian citizens would earn from our ancestor’s sufferings and try to avoid the already dealt with issues but that is not the case.
India has been time and again suffering through blood curdling violence against the citizens as seen in the recent custodial death episode of Ponraj and his son Beniks Jeyaraj’s case. The petty justification given for this horrendous murder; one might say was that they violated the lockdown protocols by keeping their shop open beyond 8pm. This was a shame on our justice system because no case of this magnitude of violation leading up to the demise of the subject can be left unattended to in any society, civilised or not.
The ‘crime’ of violating the lockdown protocols by 15 minutes can in no sense be punished by such brutal and inhumane assaults. The outcome of the whole act was suspension of two sub inspectors and benching of the inspector. Article 21 of the Indian Constitution states: “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” This is a clear violation of the basic fundamental right of a citizen. Section 49 of the Indian Criminal Procedure Code (CrPC) accords several rights to the arrested person, specifically stating that there shall be no more restraint than is justly necessary to prevent escape and also making it mandatory for police making arrests without warrant to inform the persons being detained about the grounds of arrest and their right to bail.
Most importantly, the arrested have a right to free legal aid and the right to consult their lawyers. All of the provisions meant to protect the prosecutor against arbitrary and maintenance of dignity guaranteed by the constitution were violated which is as clear as day.
What happened to Jeyaraj and Benicks is only one of the many cases that occur on a daily basis in our country.
The governments have constantly failed to adequately punish the violators and provide justice to the affected and their families. One of such measures is the Police Complaints Authority (“PCA”), a mechanism introduced in the historic case of Prakash Singh v. Union of India judgment of the Supreme Court in 2006. It is essentially a body created to hear the complaints against any officer of any rank. The PCA can take cognizance of complaints made either by the victim or the victim’s representative. The PCA is supposed to be an independently functioning body with a clear and transparent process of working which is not the case till date.
As per the Supreme Court orders, the members of the PCA have to be chosen by the government from a panel prepared by the Chief Justice and the State Human Rights Commissions, and State Public Service Commission, however all present members of the functional PCAs have been appointed directly by the State Governments establishing a control over a body that requires independence as a basic feature to work in order for the goal to be achieved. Also, a lot of states have reportedly employed serving officers to the PCAs which defeats the purpose of their establishment altogether. It still lacks investigatory powers, witness protection for complainants and witnesses, and furthermore the funding in most States is still part of the police budget and not independent of it
During the COVID-19 pandemic and the occurrence of the migrant crisis we have seen innumerable accounts of physical force on these poor and yet not one of them has been provided justice. This violence occurred due to the migrant migration which contradicted the lockdown protocols for halting the spread of coronavirus. Disturbing videos of police brutality on innocent people were widely circulated in social media and deemed the police as a saviour and not in the wrong when clearly the situation could have been dealt much more efficiently and non-violently.
An Assamese resident infuriated by this filed a PIL in the Gauhati High Court seeking interference of the Judiciary in the matter. The Laws, Regulations, Ordinance passed by the Government during lockdown have not given the right to the police to use physical force or to hit any rule violators.
Gauhati High Court in its order also stated, “We are also of the view that the police people working on the frontline are facing possible contamination and infection. Their duties, however, demand that they go close to the public, one of whom might be already infected. We are also conscious of the fact that the police personnel might be working overtime in these conditions.” It was further said that abusing people physically and mentally for coming out during lockdown cannot be justified.
This makes any poor citizen of the country think about whether his life succumbs to any value because of his economic or social status, this was the major concern during the drafting of our constitution. And we not being able to achieve our major goal is the biggest failure of all time.
We as the citizens of the country are aware of the root causes of the problem and we know what we should do to stop it. The author believes that certain steps should be taken to ensure proper justice provision and eradication of the misuse of such a prestigious power. One of the most vigilant watchdogs over the police functioning in this country is the media. The media in India enjoys a wide measure of freedom. It has enormous reach and power. Given India’s literacy rate, it is the only way of knowing about the whereabouts of the world for majority of the population situated rurally. With the reach of the media, the power it holds and the rapid technological advancements taking the world by storm today, any case of human rights violation can be pressed upon the government to take up suitable action given the media is willing to divert from trashy news to actually mattering and concerning issues the country is going through today.
Also as it currently stands, the PCA has failed to deliver what it was made for. The author also believes that the NHRC should be given implementation powers to actually serve its purpose and not remain an obligatory body. The NHRC should be preparing a staff with required experience and proper criteria should be laid. Its recommendations should hold value and should be enforceable in certain situations and it should not be on the will of the government.
And lastly the author urges the citizens of the country to stand up for what is right regardless if their favourite personality is speaking up about the issue or not. Like seen in Jeyaraj’s case none of the pertinent Indian celebrities spoke up but all of them were quick to jump on the George Floyd police brutality case in the US. The citizens of a country should not sit back and do selective and convenient activism. Stand up for when something around you is not right. Lastly the author would like to promote the use of social media websites in collaboration with bodies such as PCA and NHRC for a quick justice provision. We can change the world if we want to, we just have to start.
 LEGAL SERVICES; http://www.legalserviceindia.com/legal/article-61-violation-of-human-rights-by-police-authorities.html  TIMES OF INDIA; https://timesofindia.indiatimes.com/readersblog/riyable/police-brutality-5920/  UN Doc; https://www.un.org/en/universal-declaration-human-rights/  American Bar Association in 2013-14, CLRP, “LEGAL ACCOUNTABILITY OF THE POLICE IN INDIA”https://clpr.org.in/wp-content/uploads/2018/09/Police-Accountability-CLPR.pdf  THE DIPLOMAT; https://thediplomat.com/2020/07/why-cant-india-end-police-brutality/  American Bar Association in 2013-14, CLRP, “LEGAL ACCOUNTABILITY OF THE POLICE IN INDIA”;https://clpr.org.in/wp-content/uploads/2018/09/Police-Accountability-CLPR.pdf  Police brutality during COVID-19 lockdown and Indian majority classes; https://nenow.in/opinion/police-brutality-against-vulnerable-and-indian-majority-classes.html
Report: National Human Rights Commission of India: Time to Stand Up and Speak Out (Asia Pacific Human Rights Network, 2003)
National Human Rights Commission Annual Report 2009-2010
Report: Police Complaints Authorities: Reform Resisted (Commonwealth Human Rights Initiative, 2011)
Sankar Sen “Enforcing Police Accountability through Civilian Oversight” (Sage, 2010)
American Bar Association in 2013-14, CLRP, “LEGAL ACCOUNTABILITY OF THE POLICE IN INDIA”;https://clpr.org.in/wp-content/uploads/2018/09/Police-Accountability-CLPR.pdf
THE DIPLOMAT; https://thediplomat.com/2020/07/why-cant-india-end-police-brutality/