When you hear the word police, all you think is being cautious, or they may be your knight of shining armor. Most of the time, you want it to be the second, but sometimes they are the villain in your story. Ideally, a Police officer looks after maintaining public peace and safety, enforcing the law, and saving society from criminals. The police system usually has the law in their hands, but the question is, do they enforce it the right manner? And if they do why do police brutality exists and why do custodial death still happen?
Police officers are given great importance for performing their duties as they are looking after the public at large. They do have the power to legally use physical force under certain circumstances. However, if a police officer uses more force than necessary, then that stands for police brutality. On the other hand, custodial death is when an individual is under police or judicial custody and dies either in jail or under some legal restrain. Both of these acts are an attack on Article 21 of the Indian Constitution that is Fundamental Right to life, and they are offences under the Human Rights laws.
Article 21 of The Indian Constitution provides the right to life, and personal liberty encompasses all basic conditions for a life with dignity and liberty. Article 22(2) contains the provisions that the person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of such arrest, excluding the time necessary for the journey from the place of the arrest to the Court of the Magistrate. The Supreme Court issued certain guidelines in the D.K. Basu v. State of West Bengal 1997 (1) SCC 416to prevent custodial deaths. Section 76 of Code of Criminal Procedure, Sections 330, 331 and 348 of Indian Penal Code; Sections 25 & 26 of the Indian Evidence Act; and Section 29 of the Police Act, 1861 has been enacted with the purpose to check the tendency of policemen and judicial officers to exercise torturing the person/accused under custody to extract confessions, etc.
Another form of holding the police accountable for the brutality is the under criminal law, public law, or private tortious liability. Criminal law liability can be traced from the Criminal Procedure Code, 1973, and the Indian Penal Code, 1860. Public law liability against police misconduct is largely derived from the Indian Constitution and administrative law. In contrast, liability in private law against the police through torts has hardly taken hold in India.
INSIGHT ON POLICE BRUTALITY
According to Article 246 of the constitution of India, the police fall under the state list of the 7th schedule. Therefore it is in the hands of the state to make and regulate the police. Since we are a Quasi Federal nation, the Central government is also involved in the police forces and police laws.
The Indian Police Act 1961 governs certain police reform, and this being Victorian-era legislation has given no priority to discipline the police. There were many attempts to reform this legislation at the State and Central government, but all went in the cold storage, finally,
the Supreme court had to start a "Police Complaints Authority" at the state and district level through Prakash Singh v. Union of India, The recommendations of such authorities for action against delinquent police officers, would be binding, as per the Court's directives.
However, this reform had failed, the Supreme Court-appointed, The Justice Thomas Committee, to look into the Prakash Singh judgment. It was reported that there was a total indifference by the states and very little had been done to improve the situation
This year on June 19, in Thoothukudi, Tamil Nadu, Jayaraj, and his son Fenix were taken into custody for violating lockdown. They were stripped, sexually assaulted, with knees smashed while ripping out chest hair and left to bleed till their clothes were soaked. Fenix succumbed to his injuries on June 22 and Jayaraj on June 23. Although the police officers involved in this brutality were suspended, this was not an adequate response to this flagrant abuse of authority. The police brutalized and violated the accused.
This was just one of the cases that came under the spotlight in the history of Indian Police brutality due to the recent events in the United States of America galvanized by Killing of George Floyd by a police officer. The recent case of death of the father & son due to reported custodial torture by the police has echoed cries to end this injustice and unjust institutional police brutality existing in the country. There exist multiple police brutality victims like 23-year- old Faizan and four of his friends were beaten and bruised and forced to chant the national anthem, for no reason other than being born into a minority religion. Five lathis surrounded them as their muffled voices echoed with harrowing pain. Forty-eight hours later, Faizan died to his physical injuries.
On average, five people get killed in police custody every day. While the matter on Black Lives Matter sparked in the world's social group, police brutality and custodial death are normalized in India, and it's not a big deal. The D.K Basu guidelines were laid down rules to be followed, but after the Jayaraj and Fenix case showed us the reality that such laws are not being followed effectively.
The police officers have to comply with rules, maintain law, and order also respect human freedom as the police enjoy full freedom to on how they do their duty under the colonial legislation that needs to stop and modern reforms where only law prevails and not the rule of force. The people responsible for upholding the law are now creating it, and executing it on their own will look like we need police.
Priyanka S Shahani
F.Y LAW, K.C Law college