Police brutality and the abuse of power, held by them is one of the most alarming and gruesome challenges for a country. It shows the failure of a system to address such heinous acts while instituting the same inadvertently by not taking appropriate actions against them.
A country must not denude the citizens of their rights, even those being tried upon or guilty. It should be a well-established fact that no one stands above the law, not even those who carry out the process of delivery of justice. Torture can never be justified even on criminals because as human beings, some laws safeguard the rights of each and every one!
The police are the law enforcers who ensure that the laws are implemented at the ground level. They ensure the safety of the people and essentially are the centrepiece of public order. They are the first point of contact in cases of commission of any illicit act.
The police are official designates for ensuring peace and stability. They work for the welfare of the society, hence, they instil a good faith in the people and aim to work for the safety and betterment of the citizens as on-ground officials. Most of all, they are responsible for safeguarding the rights of the citizens.
I. The Police
Police are the most vital law enforcing agency of a country who are entrusted with the maintenance of public order, enforcement of laws as well as prevention, detection and prosecution of crimes. Hence, the police perform the duties that are imperative for the internal security of a country.
Misuse of Power
The police are under legal obligations to uphold the rights of the people and to protect all the citizens. But what if the powers at their disposal are used against the people that they are instituted to protect? What if the saviours themselves become the perpetrators and misuse the powers vested in them to torture the people and strip away their rights for impunity?
This is in stark contrast with the nature of the work they are sworn in to carry out, but this act of misuse of power has been prevalent for a very long time. The powers possessed by them have often been used to evade legal consequences or moral and legal accountabilities after committing an illegal act.
Several reports on police brutality have surfaced from different parts of the country. Inhumane techniques have often been adopted to torture people while under police custody despite provisions in the Indian Penal Code prohibiting the same.
Apparently, such cases do not garner much attention because of the suppression of these cases by the police using wrong accusations and false claims in order to defend themselves. The police have institutionalised crime in their own profession while trying to control or eradicate the same from society.
Moreover, even a lesser number of cases of these monstrous atrocities surface because of the fear of speaking up against the police. The police use their muscle power to silence the citizens who raise their voices against them.
To file a complaint against the police, one needs to approach the police, hence showing the dilemma and fear that a common man faces while reporting such cases. This clearly shows how hard it is for a common man to get justice against their own ‘protectors.’
II. What is Torture?
According to the United Nations Convention Against Torture,
Torture can be defined as an act by which severe pain or suffering is inflicted upon a person physically or mentally for information or confession.
It also includes punishing a person that may be a suspect of a crime. Intimidating or coercing a person at the investigation with the consent or acquiescence of a public official or a person working in an official capacity also amounts to torture.
Is Torture Legally a Crime under the Indian Constitution?
According to Section 330 of the Indian Penal Code,
any individual causing hurt voluntarily to extort confession or to compel the restoration of a property is liable to punishment.
Section 331 of the Indian Penal Code states that,
an individual voluntarily causing grievous hurt to extort confession or to compel restoration of a property is also liable to punishment.
Hence, it is evident that there are provisions in the Indian Penal Code against such acts committed by the police but the concern lies as to how easy it is to evade these laws citing various reasons to either justify their move or cover up the incident.
There have been increasing incidents of misuse of the powers vested in them. There has been a surge in the cases of misuse of power by the police in the past few decades globally.
III. Cases of Outrageous Acts by the Missionaries of Law
The Case of Jayraj and Fenix
In a horrifying incident on the night of 19th of June 2020, a father and a son, Jayraj and Fenix, in the district of Toothukudi in Tamil Nadu were tortured and ruthlessly beaten up resulting in the mutilation of their body parts. The police took such a drastic action merely on the account of the duo keeping their shop open past the permitted time.
Initially, the police stated that there was a large gathering outside their shop which was prohibited at the time of a pandemic. But the witnesses and the video evidence retrieved from the site tell a completely different story, hence showing the tactics used by them to cover up their misdeeds.
While their shop was indeed open, no crowd could be seen outside the shop. They were booked under Section 188 (disobedience to order duly promulgated by public servant), Section 353 (use of force to deter public servant from duty), Section 269 (negligent act likely to spread infection of disease dangerous to life) and Section 506(2) (Punishment for criminal intimidation) of the Indian Penal Code.
The police arrested them for disregard of the public regulations and violation of laws and were taken to Sathankulam Police Station where the two were mercilessly beaten up. Witnesses also claim to have seen them bleeding severely from their private parts.
The two were presented before a judicial magistrate who failed to take cognizance of such a heinous crime committed against them. This systemic violence against them was carried on until they were admitted to the hospital where they lost their lives.
Protest against Smelters in Toothukudi
Another horrific incident took place in the district of Toothukudi on the 22nd and 23rd of May 2018, where a group of protesters were shot at by the police while they were protesting against a copper smelting factory in the area.
This led to the death of at least 12 individuals which garnered heavy criticism from various human rights groups and the United Nations as an intense measure that was completely uncalled for. The police, as condemned by various rights groups, did not have the right to strip off the Right to life.
IV. National Crime Bureau Report
According to the National Crime Bureau, 1727 people died under police custody between 2001 and 2018. However, only 26 policemen were convicted for these deaths while the other deaths were blamed on causes such as suicide, death in hospitals.
In the year 2018, 70 individuals lost their lives under police custody out of which only 4.3% were attributed to injuries sustained by violence during police remand. The reports for the year 2018 show that 5479 cases were registered across India while only 2858 personnel were charge-sheeted and only 41 were convicted of their crimes.
This suggests the misuse of special powers given to the saviours of lives who are bending the rules in their favour and depriving the right to justice of the victims.
According to another report, India: Annual Report on Torture 2019 published by a human rights group, a total of 1731 deaths took place in 2019 out of which 1606 happened in judicial custody whereas 125 in police custody. Hence on an average, 5 custodial deaths happen in India every single day!
According to the director of National Campaign Against Torture, Paritosh Chakma, the torture techniques used in 2019 were hammering iron nails into the body, hitting private parts, electric shocks, branding with a hot iron rod, pressing fingernails with pliers, kicking the abdomen of pregnant women and many more.
V. United Nations Convention Against Torture (UNCAT)
Torture has been condemned at an international level which has lead to the laying down of guidelines by the United Nations against such illicit acts that have been accepted and implemented by many countries.
According to the United Nations Convention Against Torture,
a state is to ensure that all acts of torture are offences under their criminal law including an attempt to torture, complicity or participation in torture.
The committee under this resolution constituted Committee Against Torture (CAT) which monitors the implementation of the rules by the state parties. It also has provisions to allow complaints or communications from individuals claiming their rights have been violated.
VI. Black Lives Matter: The First World
Black Lives Matter, a movement emphasizing on the lives of the racially ‘black’ people who were the victims of police brutality that killed several of them owing to the colour of their skin took the United States by storm. This was not the first incident of a black person losing life because of the ruthlessness of the police.
The movement was sparked by the death of one individual but stood for the thousands of others who had perished due to the inhumane treatment by these law enforcers. There was a widespread protest against this long ongoing discrimination in the country.
The movement did not only focus to bring the perpetrators to justice but to also raise awareness about the increasing atrocities against a specific group in the society and to change the mindset of the people.
George Floyd, a man of colour pleading to police officers to not use force against him because of the asphyxiation they were causing, was ignored inhumanely which lead to his death.
A large number of policemen stood in solidarity for the lives lost and stood up against their own department, not fearing the repercussions it might have on their work by raising their voice against an immoral action that needed to be dealt with no matter who the perpetrator was because no one stands above the law. The issue was dealt with after a long ongoing protest and cognizance of the case.
VII. Predicaments leading to the Indian Scenario
Status of Policing in India 2019, a report published by Tata Trusts and Centre for the Study of Developing Societies reported that the police officials in India are overburdened with work and given fewer monthly or weekly offs.
According to its report, 24% of police personnel work for more than 16 hours a day 44% work more than 12 hours a day which results in lower efficacy of the individuals. This could adversely affect the behaviour of the officials while carrying out their duties.
Police officials are involved with investigations as well as issues of ensuring law and order. There is a lack of expertise when the police officials charged with the investigations are sent for enforcement of law and order issues as well. This leads to lower productivity because of the intermixing of both these aspects.
A specialized wing charged with investigation must only be involved with investigation to maintain a high level of output. A wing responsible for law and order must only be used for fieldwork. This also helps in reducing the workload on the officials while increasing their expertise in their respective fields.
The glorification of extrajudicial executions is one of the greatest threats to the rule of law. The police have often indulged into extrajudicial executions. As in the Hyderabad rape case of a veterinarian, where the police took the accused to the scene of the crime and were executed claiming their attempt to escape.
The powers of the police are limited because of the existence of other specialized organs such as the Judiciary where a culprit is ought to be tried irrespective of the guilt or the gravity of the crime committed. Law treats all who appear before the court equally and it is not up to a few individuals such as the police to deliver justice or resort to their own fast track methods.
Judicial magistrates usually rush through the remand cases which leads to oversight of brutal acts being committed against detainees. In the case of Jayraj and Fenix, it was stated that the magistrate could not take proper notice of the act because of the restrictions that were imposed because of the pandemic. A more effective way of presentation should have been devised to reduce oversight of such lapses.
India’s failure at implementing a stricter Anti-Torture Law
India is a signatory to the United Nations Convention Against Torture since 1997 but has yet not ratified it. Ratifying of the UNCAT would require India to make few modifications to the laws existing in the country which would better protect the rights of the people. But no action has been taken by the government regarding the same.
India’s attempt to implement a stricter Anti-Torture Law has failed not once but several times.
In 2010, Prevention of Torture Bill was passed by the Lok Sabha. This bill was sent for a review by a Select Committee in the Rajya Sabha only to be returned with the suggestions of the committee after 2 long years which did not become a law. Though the bill was not a strong one but surely was a move in the right direction.
In 2017, Law Commission submitted its 273rd report accompanied by an Anti-Torture Law which was recommended to the central government asking them to ratify the United Nations Convention Against Torture to overcome the difficulties faced by the Indian law enforcement agencies while extraditing fugitives from a foreign territory but no action was taken regarding the same.
A petition was filed in the Supreme Court for the formulation of this law but the apex court observed that the government cannot be compelled to make law through the writ of mandamus as treaty ratification is a political decision and a matter of policy.
Once again in the year 2017, the Prevention of Torture Bill was presented to Rajya Sabha and it once again failed to become a law.
VIII. The Way Forward for India
India must ratify the UNCAT and mandate reforms in the law to ensure the humane treatment of all who are held by the police. India is in a dire need of strict laws against acts such as torture, mutilation and murder at the hands of those in power.
India needs a truly comprehensive anti-torture legislation that should mandatorily address various dimensions related to police brutality. A clear chain of command must be laid out for the responsibility of the acts committed. The law should hold superior officials responsible for the activities taking place under their jurisdiction. The law must also ensure comprehensive compensation and rehabilitation to the victims.
It is imperative to recognize violence against women. Women have continued to be the target of sexual violence under custody. These victims often belong to the weaker section of the society.
Under Article 22, a Judicial magistrate is the first point of contact for those arrested. These individuals are presented before the magistrate within 24 hours. Therefore, judicial magistrates must not rush through remand cases. The higher courts must ensure that the magistrates are not overloaded with work which often compels them to not take proper cognizance of such cases which leads to a systemic failure of the constitutional courts.
The court should not defend police brutality in the name of law morale of the police as in the case of Jayraj and Fenix where the Madras High Court observed that a few bad people ruin the system’s reputation. Strict actions must be taken against these offenders and they must be punished severely along with sanctions and monetary penalties to ensure that such acts are not committed by the officials.
Police brutality is a despicable act that has been endangering the systematic framework of the operational procedures. The cases of police brutality reported in India are far less than the actual numbers because of the tampering of pieces of evidences and the powers enjoyed by the police.
Despite that, the number of reported cases is still high and stricter laws need to be formulated to put an end to this abuse of power. It is high time that India implements laws for the better delivery of justice while respecting the rights of every individual.
India must ratify the international conventions and take deeper cognizance into the systemic failure that has been caused not at a single level but multiple levels. Appropriate steps must be taken to unburden the law enforcers to maintain a better functioning of the system.