AUTHOR’S NAME – Divyaansh Jain, BBALLB, Second Year.
INSTITUTION NAME – Bennett University, Greater Noida.
INTRODUCTION:
Police are one of the most important parts of upholding the laws of the country. They are responsible for keeping the society that we live in peaceful and safe, without the police it would be next to impossible to uphold the law of the country and keep it stable. They are the main ingredient for a smooth working government. India is a democratic country everyone is equal before the law and certainly police do not come above it. Even also physical liberty is an essential fundamental right under ARTICLE 21 of the constitution of India which states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”[i]. It is one of the most important rights for any human being, but because of maybe this reason only why we see that there’s a misuse of power by the police in using force. According to the national police commission’s report, around “60% of the total arrests were uncalled and excessive.”[ii] This report will mainly focus on the legality and the scope of the laws that give power to the police to use force and how and to what extent that power is misused. In the end, it will focus on proving why there should be preventive laws and measures for the use of force by the police.
LEGALITY AND SCOPE OF THE LAWS:
As we know the police have a lot of power when it comes to making arrests and to the use of force, chapter 5 of CRPC and BNSS (Bhartiya nagrik suraksha sanhita) (arrest of persons) entails the powers of the police while arresting other people. From section 41 to section 60 police are vested with various powers when making arrests like arresting any person without a warrant (section 151 crpc and 35 of BNSS), searching the residence of the “accused”/ arrested person or the place he has entered or believed to have entered (section 47 crpc), last but not the least search and seize any materials they believe to be offensive and dangerous from the accused ( section 52).[iii]
Now, crpc entails the procedure that explains the duties of an officer that are required to be followed. Section 151 of crpc talks about how to deal with preventive arrests. Now what is a preventive arrest? Now under CRPC under section 151“Preventive arrest” refers to the action that can be taken by the police on certain suspicious grounds that lead them to believe that the person concerned may commit some wrongful acts in the future. This means that the police are completely empowered to arrest a person and suspect that the person may commit an offense that is cognizable in nature. In the case of “ASTIVA SUSHIL KACHIHAR V.S THE STATE OF GUJRAT,” it was observed that-
“A mere perusal of §151 of the Code of Criminal Procedure makes it clear that a police officer can do so only if he has come to know of a design of the person concerned to commit any cognizable offense. A further condition for the exercise of such power, which must also be fulfilled, is that the arrest should be made only if it appears to the police officer concerned that the commission of the offense cannot be otherwise prevented.”[iv]
Now the important conditions as motioned in the case are-
- There must be a presence of a design for the offense and such offense whose commission is anticipated should be cognizable in nature
- The individual should be connected to the design above
- Some information about such commission must be received by the police
- Lastly, it must be visible that the police had no other way to prevent such offense.[v]
THE REALITY:
The problem of police brutality and the use of excessive force by the police has been an issue not just in India but internationally as well. In the USA recently there was a case of George Floyd who died because of the excessive force used by the police officers while arresting him, this case sparked a huge amount of anger and resentment towards the police system as a whole in the USA. There were widespread protests during the COVID period as the black community especially felt targeted. This case brought a lot of other cases to light as well. Like the cause of Brianna Taylor etc., these cases held a lot of importance since they directly infringed on the basic fundamental rights of the people under the UNITED STATES DECLARATION OF RIGHTS.[vi] Not only that in recent data places like Uganda, South Africa, Iraq, and Iran police brutality (especially to the minority groups) is very prevalent. Now let’s talk about India, according to the World Population Review Report India comes in number 4th in the heights number of police killings in the world. In India there have been a total of 1,731 listed killings in 2019 and out of that 1,606 killings happened due to “judicial custody” and “police custody” This same report, also includes official operations held by the police, military, and other intelligence agencies.
History of police brutality in India:
India which gained its independence in 1947 went through a lot of unjust and inhumane cases of police brutality during the “British Raj” one of the landmark laws for which the Indians protested during the time was the “Rowlatt Act”, this act gave unfair powers to the police officials of that time to indefinitely detain and imprison people without any trial or judicial review. This act was to stop the nationalist upsurge which happened during that time. This implementation of the act led to one of India’s most horrific incidents which took place that was the Jallianwala Bagh massacre, which under the command of R.E GENERAL DYER around 300 allegedly died and over 1200 hundred injured. After the independence, during the time of emergency around the period of 1975-1977 there were several cases of police brutality were recorded, one of the landmark cases is the Rajan case, in which the defendant who was a student was held on suspicion of association with naxals during that time, with his friends was in police custody during that time and as a part of interrogation he was harassed and inhumanely tortured by the police during the custody, he later succumbed to the injuries he got during the torture.[vii] Even in the present times, we see a lot of cases of police brutality and violence by police for example.
- SUBE SINGH V.S THE STATE OF HARYANA & ORS(2006): in this case the petitioner(SUBE SINGH) and his family were harassed and tortured multiple times during the police custody on the mere suspicion of him knowing the whereabouts of his son.[viii]
- The pro-Jallikattu silent protest in Tamil Nadu which turned violent on January 23, 2017, in the consolidated reports of the National Human Rights Commission it was reported that the police used violent methods including beating and damaging private property.[ix]
- Another recent example we see is the Jamia Milia University protest over the Citizen Amendment Act, where the police authority conducted a lathi charge on the students during that time.
Is there an infringement of fundamental rights by the police?
It is clear that sections like 151, 156(1), 129, etc. give a significant amount of power to the police on whom to arrest and it is purely at the discretion of the police to determine the use of force by the police in different situations which can be from a police custody to controlling of a protest. Now this questions the the basic fundamental rights of a person.[x] Under the crpc a person can only be detained for only 24 hours but there have been multiple cases where people were detained for months at end. Which is a clear infringement of Article 14 of the constitution. The case mentioned above(sube Singh v.s state of Haryana and ors) not only questioned the validity of section 151 but also questioned the validity of the basic fundamental rights granted by the constitution of India. In the case, State Of Karnataka vs B. Padmanabha Beliya[xi][xii]And Others where the defendant’s son died due to the police firing which happened to quash the protest happening at that time time killed the son of the petitioner. Where now the petitioner prayed that there was excessive use of force which was used by police which led to the death of his son. Now what we see from the above cases we see that there have been a lot of cases where there has been a clear infringement of the fundamental rights and affecting the liberty and life of the citizens under articles 14,19,21 and 22 of the constitution.[xiii]
CONCLUSION:
In the past few years, initiatives have been taken by the government to keep a check on the powers of the police so that they won’t be misused by the officials and they have been imposing safeguards and placing restrictions to regulate the misuse of powers by the “so-called officials”. In the case of Joginder Kumar v.s state of U.P,[xiv] the Supreme Court handled the power of arrest and the proper use of it. It stated that there should be a realistic approach while balancing the rights and privileges of the individual but also looking out for the collective rights of the society as a whole. It is also observed that there is a conflict between the rights of society and the protection of the accused. However, it is also agreed that society’s interest in convicting the law-breakers should be put higher. It was also observed that the jurisdiction cannot be objective and absolute it is a subjective thing and it should be dealt with resting to the recent increase in crime.
[i] INDIA CONST. art. 21
[ii] legalserviceindia, legalserviceindia.com/legal/article-1355-the-use-and-misuse-of-power-of-police-to-arrest-an-in-depth-study-in-the-light-of-supreme-court-dec.html.,
[iii] The Code of Criminal Procedure, 1973, Sec. 05, 41, 60, 151, 47, 52, No. 0, Acts of Parliament, 1973 (India).
[iv] Astitva Sushil Kachihar vs State Of Gujarat on 23 August, 2018
[v] legodesk, https://legodesk.com/legopedia/powers-of-police-under-crpc/, (last visited Mar. 6, 2024).
[vi] Cfr, https://www.cfr.org/backgrounder/how-police-compare-different-democracies, (last visited Mar. 6, 2024).
[vii] BIPAN CHANDRA, INDIA’S STRUGGLE FOR INDEPENDENCE 1857-1947, Penguin Books, 1-10, https://bhattadevuniversity.ac.in/docs/studyMaterial/GunjanDas_History_UG6thSem_History%20of%20India.pdf
[viii] Sube Singh vs State Of Haryana & Ors on 3 February, 2006 Writ Petition (crl.) 237 of 1998
[viii] Indianexpress, indianexpress.com/article/india/jallikattu-nhrc-notice-to-tamil-nadu-government-police-for-excesses., (last visited Mar. 6, 2024).
[ix] Indianexpress, indianexpress.com/article/india/jallikattu-nhrc-notice-to-tamil-nadu-government-police-for-excesses., (last visited Mar. 6, 2024).
[x] The Code of Criminal Procedure, 1973, Sec. 151, 156(1), 129, No. 0, Acts of Parliament, 1973 (India).
[xi] 1992 CriLJ 634, ILR 1991 KAR 2739, 1991 (2) KarLJ 11
[xii] INDIA CONST. art. 14.
[xiii] INDIA CONST. art. 14, 19, 21 & 22.
[xiv] 1994 AIR 1349, 1994 SCC (4) 260