The recent increase in protests and agitations has led to an increase in the number of allegations of police brutality in India. Videos of people being ill-treated by police officers is now a common sight, which makes it is essential to know your rights in such situations
What is police brutality?
Police brutality means the use of excessive and unnecessary force applied on part of police officers while dealing with civilians, resulting in a violation of the civil rights. The definition of excessive force is a bit fluid but generally means a force which is beyond what would have been appropriate. For example; the use of guns instead of tasers.
Police Brutality is an umbrella term and includes acts of racial profiling, custodial violence, custodial death, unlawful arrests and detention.
Remedies against Custodial violence
Indian law does not have any specific provision for custodial violence. But does it mean that a person sheds off his fundamental rights after being arrested?
The answer is no,
- Section 46 and Section 49 of the Criminal Procedural Code protect those under custody, who are not accused of any offence punishable with death or imprisonment for life from torture.
- Section 7 and Section 29 of the Police Indian Police Act provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same.
- Additionally, Section 330, Section 331 and Section 348 of the IPC, Section 25 and 26 of the Indian Evidence Act, and Section76 of Criminal Procedural Code, serve as tools to curb the tendency of policemen to resort to torture to extract confessions.
- Section 50-56 are in consonance with Article 22 and Section 54 of CrPC and provide that when an allegation of ill-treatment is made by a person in custody, the Magistrate is then and there required to examine his body and shall place on record the result of his examination and reasons therefore.
In the case of “Sheela Barse v State of Maharashtra” the court provided guidelines on the rights of arrested persons especially women. Additionally, the court emphasised on the need for the magistrate to inform arrested persons of their rights.
In “D.K Basu v. State of West Bengal” held that the arrestee should be subjected to medical examination every 48 hours during his detention by a doctor from the approved panel of Doctor and copies of all documents should be sent to the concerned Magistrate
Other Means of Accountability
Citizens subjected to such violence’s may additionally approach any of the following authorities:
- Police complaints authority
The Apex Court in its judgement in Prakash Singh v Union of India, directed the government to set up a Police Complaint Authority at state levels as well as district levels. The main aim of this Authority is to look into complaints against police officers.
- Human Rights Commission
The Human Rights Commission is a standalone entity of the Government of India, set up for prevention of violation of civil and Human rights. This commission safeguards individuals rights from illegal courses of action by the police. They additionally have the right to initiate investigation against corrupt police officials.
Accountability in cases of custodial deaths
It has been reiterated in numerous precedents that just because a person is in custody or is under arrest, it doesn’t mean he can be deprived of his fundamental rights. A person may move the supreme court under article 32 in case of such violation.
Article 20 protects a person in custody from self-incrimination. Therefore, when a person subjected to torture or assault to extract a confession, it becomes a fundamental right violation.
Article 21 guarantees right to life and liberty. This includes right against torture and assault even from state and its functionaries, to a person in custody.
In “Nilabati Behara vs. State of Orissa”, a custodial death case, wherein the arrestee died as a result of injuries inflicted upon him in custody, the Supreme court held that such action was a violation of fundamental rights. The court further held that the principle of “Sovereign immunity” is not applicable to cases where there is clear violation of fundamental rights.
In the case of “A.V. Janaki Amma And Ors. vs Union Of India” the court held that for violation of fundamental rights under Article 21 of the Constitution of India, by public authorities, the officials and the State shall be liable to pay compensation.
Scope of Section197 Criminal Procedural Code
In P.P.Unnikrishnan v. Puttiyottil Alikutty” the Supreme Court while limiting the scope of Section 197 held that, “there must be a clear connection between the act committed and the discharge of official duty to avail protection under the section.”
In S.S.Khandwala (I.P.S) Addl. D.G.P. and Ors. V. State of Gujarat, the Gujrat High court held “the police officials, who were accused of illegal detention and torture during custody for three days, are liable because their acts of torture were clearly outside the scope of their official duty.”
The rise in the number of police brutality cases in the last 5 years show that the custodians of the law, have now become the lawbreakers. Citizens must be aware of the various safeguards against such despicable acts. However, there still exists a pressing need to implement new law reforms to hold such police officers accountable.
About the Author – Aditya Pratap
Aditya Pratap is a lawyer practising in Mumbai. He argues cases in the Bombay High Court, Sessions and Magistrate Courts, along with appearances before RERA, NCLT and the Family Court. For further information one may visit his website adityapratap.in or view his YouTube Channel to see his interviews. Questions can be emailed to him at firstname.lastname@example.org.
This Article is made by Aditya Pratap in assistance with Karthyayani Amblimath.
Cases argued by Aditya Pratap can be viewed here.
Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and how they may affect a case.