By Mansi Avashia

An unarmed, peaceful protest procession in the land of ‘salt satyagraha’, fast-unto-death and ‘do or die’ is no jural anathema.[1]

Introduction

The criminal justice system in India is largely a product of British rule.[2] It consists of the judiciary, the police force, and the prisons.[3] These institutions work towards protecting the life and liberty of all persons.

The shooting of a black man named George Floyd in the United States has sparked up the debate of the excessive use of force and the brutality of police officers.[4] This is a critical problem that has plagued India for decades. It is high time we speak up against the apathy of our police force while showing solidarity for #BlackLivesMatter. In this article, the author will discuss the structure of the police force in India and the instances of use of force in the recent past. The main reasons which have given rise to this ‘lathi-charging’ culture of the police will also be highlighted.

Police in India

There are central agencies under the Ministry of Home Affairs that aid in law enforcement and every State has a police force for maintaining law and order in its territory. Police actions are guided by central laws, such as the Constitution, the Indian Penal Code, 1860 [“IPC”], Code of Criminal Procedure, 1973 [“CrPC”], and the Police Act, 1861.[5]

The CrPC has carved out certain circumstances under which the police can use force, for instance, during dispersal of assemblies and arrests.[6] These freedoms have been gravely misused. The Code of Conduct for Indian police requires policemen to try and adopt methods of warning and persuasion as much as possible.[7] The CrPC specifies that an officer should minimize and exercise force in a proportionate manner.[8] However, the recent past has shown us that the police resort to Machiavellian principles of using force to control the people as opposed to furthering justice.

Last year, the Hyderabad police were under scrutiny for the encounter of four men accused of raping a female doctor.[9] The Anti-Citizenship Amendment Act protests brought to public light the unnecessary violence by the police, which led to multiple injuries and fatalities among protestors who were simply exercising their right to free speech.[10] Police have also been criticised for lathi-charging people for stepping outside their homes during the lockdown imposed by the government to combat COVID-19.[11]  One incident that caused a huge outcry was the custodial deaths and the gruesome assault of a Tamil Nadu shopkeeper Jayaraj and his son Bennix.[12] The most recent incident which shows that the police resort to force as the first and not the last alternative is the encounter of the notorious Uttar Pradesh gangster Vikas Dubey.[13]

However, it is unfair to blame only the police for its shortcomings. There are various reasons for their problematic mindset:

Lack of Accountability and poor implementation of the law:

India had around five custodial deaths per day in 2017-2018.[14] However, the legal framework is inadequate to hold the police responsible. As per the National Crime Bureau Report, in 2017, there were zero convictions out of 100 custodial violence cases.[15] The Supreme Court has reiterated the requirement of an amendment in the Indian Evidence Act, 1872 that when there is an injury during custody, it should be presumed that the police officers resorted to force.[16]

The SC in People’s Union for Civil Liberties v. State of Maharashtra highlighted that encounters affect the right to life and the rule of law, and thus require a thorough investigation.[17] They issued guidelines for investigation of encounters, but these have not been followed properly.[18]  In Prakash Singh v. Union of India, the Supreme Court directed the establishment of Police Complaints Authorities at the district and state level for better accountability.[19] However, in 2016, a NITI Aayog document on police reforms reported that there was hardly any compliance with the judgment.[20]

In the words of Justice Krishna Iyer, “Who will police the police?”[21] Thus, there is a pressing need for proper checks and balances over their authority.

Disregard for International Standards

International law has various principles and rules in place to ensure minimum violence by law enforcement officials, with a particular emphasis on necessity and proportionality.[22] The United Nations has laid down Basic principles on Use of Force by Law Enforcement Officials, and section 14 of the same refrains the police from using force while handling peaceful, lawful assemblies.[23] In the event the situation is violent, the police have to respect human rights of the people and minimize the use of force.[24]

However, India’s indifference towards the established standards is a major reason for the violent tendencies of the police. India has been a signatory to the Torture Convention but it has not ratified it yet.[25] The Home Ministry said, it is not in view of enacting a torture law anytime soon.[26]

Section 46(2) of the CrPC allows the use of force by the police if a person is accused of an offence punishable with death or life imprisonment.[27] This is not in conformity with international law, as Section 9 of United Nations’ Basic principles on use of force restrict the use of firearms to situations of an imminent death threat or serious injury.[28] India must strive towards fulfilling its international obligations as this can help bring significant changes in the current system.

Role of Law Makers and the Judiciary

The existing laws that govern the criminal justice system have been drafted in the British era. There is a requirement of dire amendments to keep up with the demands of today’s society.[29] For instance, Section 46 of the CrPC allows the police to use ‘all means necessary’ to arrest a person attempting to resist. Section 129 allows the use of force to disperse an assembly without any thresholds.[30] Thus, the lathi-charging concept of the 18^th century exists even today.

Further, India has a massive backlog of cases, and it often takes years to convict an accused. It is often believed that ‘justice delayed is justice denied’, and thus, a total overhaul of the judiciary is required to ensure that the police do not take the matter in their own hands.[31]

Societal perception

On the one hand, encounter killings have been normalized to such an extent in India, that there is a celebration when one happens, and ‘encounter specialists’ are appointed in the police. The general population views this as ‘speedier justice’ and finds this as a more effective mechanism than undergoing an entire trial.

On the other hand, a large section of the people lacks faith in the police.[32] A report had found that the upper class is much more likely to trust the police than the poor and the illiterate.[33] Further, minorities and women fear the police more.[34] This is because the lower class and the minorities are often easier targets of violence, compared to the upper class; and women face the threat of custodial rape and assault.[35] This can inadvertently lead to less reporting of crimes. This fear needs to be eradicated and replaced with public confidence for the smooth functioning of society.

Conclusion

By solely blaming the policemen, we are missing the larger picture. We must not forget that they have been at the forefront of the ongoing pandemic at the risk of their own lives. They make numerous sacrifices throughout their careers, with very little rewards. The drawbacks in the police force of India are evidence of a debilitated criminal justice system. In an era of media trials, where ‘power’ is prioritized over ‘justice’, police brutality has been institutionalized.[36] The police’s curriculum urgently needs qualitative training and simulation training to sensitize the personnel.[37] They also need better incentives to reduce the possibility of corruption and political interference.[38] The strengthening of the police will automatically invigorate the criminal justice system.

The author, Mansi Avashia, is currently a law student at the Gujarat National Law University (GNLU), Gandhinagar.

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[1] Anita Thakur and Ors. v. Government of J&K and Ors., AIR 2016 SC 3803.

[2] India Legal Bureau, Criminal Justice System in India, a critique, India Legal Live, available at https://www.indialegallive.com/top-news-of-the-day/news/criminal-justice-system-in-india-a-critique/, last seen on 15/09/2020.

[3] Joysheel Shrivastava and Vishvajeet Chaudhary, Fault Lines Of India’s Criminal Justice System: Warning Bells And The Way Forward, Outlook (30/05/2020), available at https://www.outlookindia.com/website/story/opinion-fault-lines-of-indias-criminal-justice-system-warning-bells-and-the-way-forward/353817, last seen on 15/09/2020 [“Fault Lines”].

[4] Suraj Yengde, As we debate Floyd and systemic prejudice, the power and need for such a moral force couldn’t be more relevant today, The Indian Express (28/06/2020), available at https://indianexpress.com/article/opinion/columns/george-floyd-us-india-dalit-advisasi-6479505/, last seen on 29/09/2020.

[5] Police Organisation in India, Commonwealth Human Rights Initiative, available at https://www.humanrightsinitiative.org/publications/police/police_organisations.pdf, last seen on 15/09/2020.

[6] S.129(2); S.46(2), The Code of Criminal Procedure, 1973 [“CrPC”].

[7] Principle 4, Code of Conduct for the Police in India.

[8] S.130(3), CrPC, supra note 6.

[9] Hyderabad case: Police kill suspects in rape and murder of Indian vet, BBC (06/12/2019), available at https://www.bbc.com/news/world-asia-india-50682262, last seen on 15/09/2020.

[10] S.2, The Citizenship Amendment Act, 2019; Betwa Sharma, Two Months On, CAA Protestors Fight Public Apathy as Police Brutality Continues, HuffPost (12/02/2020), available at https://www.huffingtonpost.in/entry/caa-protests-jamia-delhi-police_in_5e43b2e5c5b6d0ea38108660, last seen on 15/09/2020.

[11] Prabudh Singh and Pranav Verma, The Lathi and India’s Colonial Cure for the Coronavirus, The Wire (02/04/2020), available at https://thewire.in/law/police-lathi-coronavirus-lockdown, last seen on 29/09/2020.

[12] Jyoti Punwani, Jayaraj and Fenix killings: Torture, intimidation, encounters are an old Tamil Nadu police tradition,  Firstpost (10/07/2020), available  at  https://www.firstpost.com/india/jayaraj-and-fenix-killings-torture-intimidation-encounters-are-an-old-tamil-nadu-police-tradition-8583301.html, last seen on 15/09/2020.

[13] Krishnadas Rajagopal, Vikas Dubey Death| U.P. denies it killed gangster in fake encounter, The Hindu (17/07/2020), available at https://www.thehindu.com/news/national/other-states/up-govt-denies-before-supreme-court-vikas-dubey-was-killed-in-fake-encounter/article32114784.ece, last seen on 15/09/2020.

[14] Torture Update: India, Asian Centre for Human Rights, available at http://www.achrweb.org/wp-content/uploads/2018/06/TortureUpdateIndia.pdf, last seen on 15/09/2020.

[15] National Crime Records Bureau, Ministry of Home Affairs, Government of India. Crime in India 2017 Volume III, available at https://ncrb.gov.in/sites/default/files/Crime%20in%20India%202017%20-%20Volume%203.pdf, last seen on 29/09/2020.

[16] State of Madhya Pradesh v. Shyamsunder Trivedi and Ors. (1995) 4 SCC 262: 1995 SCC (Cri) 715.

[17] People’s Union for Civil Liberties and Anr. v. State of Maharashtra and Ors., Criminal Appeal No. 1255 of 1999.

[18] Pranav Verma, The State can’t ignore legal safeguards meant to protect citizens from itself, The Wire (13/07/2020), available at https://thewire.in/law/vikas-dubey-encounter-killings-rule-of-law, last seen on 29/09 2020.

[19] Prakash Singh v. Union of India, (2006) 8 SCC 1.

[20] Suparna Jain and Aparajita Gupta, Building Smart Police in India: Background into the needed police reforms, available at https://niti.gov.in/writereaddata/files/document_publication/Strengthening-Police-Force.pdf, last seen on 15/09/2020.

[21] Prem Chand v. Union of India, AIR 1981 SC 613.

[22] International Rules on Police Use of Force, Law on Police Use of Force Worldwide, available at https://www.policinglaw.info/international-standards, last seen on 15/09/2020 [“Policing law”].

[23]  S.13, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, 1990 [“Basic Principles”].

[24] Id., S.14.

[25] Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85.

^[26] Govt has no plan to bring law against prevention of torture: MoS (Home) informs Lok Sabha, The Leaflet (September 15, 2020), available at

https://www.theleaflet.in/govt-has-no-plan-to-bring-law-against-prevention-of-torture-centre-informs-lok-sab, last seen on 15/09/2020.

[27] S. 46(2), CrPC, supra note 6.

[28] Policing law, supra note 16; ; S.9, Basic principles, supra note 23.

[29] Sarthak Karol and Janay Jain, Jayaraj-Fenix custodial deaths: Policing powers are sovereign powers; privilege and lack of accountability narrows scope for victims, Firstpost (06/07/2020),  available at https://www.firstpost.com/india/jayaraj-fenix-police-custodial-deaths-policing-powers-are-sovereign-powers-privilege-and-lack-of-accountability-narrows-scope-for-victims-8564281.html, last seen on 15/09/2020.

[30] S.46(2); S.129, supra note 6; India, Law on Police Use of Force Worldwide, available at https://www.policinglaw.info/country/india#:~:text=Section%2046%20authorises%20a%20police,officer%20may%20use%20lethal%20force, last seen on 15/09/2020.

[31]Swaminathan A Aiyar, ‘Encounters’ need to end but the real culprit is a moribund judicial system, Economic Times (15/12/2019), available at https://economictimes.indiatimes.com/news/politics-and-nation/encounters-need-to-end-but-the-real-culprit-is-a-moribund-judicial-system/articleshow/72650171.cms, last seen on 15/09/2020.

[32] Fault Lines, supra note 2.

[33] Common Cause and Centre for the study of developing societies,  Status of Policing in India, 109, (2018), at https://www.commoncause.in/pdf/SPIR-2018-c-v.pdf.

[34] T.K. Vinay Kumar, India’s Police Warrant Better Performance And A Happy Relation With Public, Outlook (15/06/2018), available at https://www.outlookindia.com/website/story/indias-police-warrant-better-performance-and-a-happy-relation-with-public/312954, last seen on 15/09/2020.

[35] Id.

[36] Faizan Mustafa, A growing blot on the criminal justice system, The Hindu (10/12/2019), available at https://www.thehindu.com/opinion/lead/a-growing-blot-on-the-criminal-justice-system/article30259835.ece, last seen on 15/09/2020.

[37] Fault Lines, supra note 2.

[38] Wanted! Police Accountability, Dalit Camera, available at https://www.dalitcamera.com/wanted-police-accountability/, last seen on 15/09/2020.