Police Brutality in India

by curiousforlaw

12th December 2020

The article focuses on the reason behind the low conviction in police brutality cases. Current status and records available on it. It also states a few reasons behind the police brutality and effective measures which need to be taken.

By: Roopal Dhoot, 2nd Year BA LLB Student, Indian Law Society Law College, Pune.

Police Brutality is an offence that a violation of the civil rights of an individual. The brutality done by the police occurs when a police officer acts with excessive force by using more amount of force towards a civilian or public which is not necessary. It can be physical as well as verbal abuse or racial profiling and false arrest.

Types of Police Brutality

● False arrest and wrong imprisonment

● Sexual Harassment

● Racial discrimination

● Wrongful search and seizure¹

According to the National Crime Records Bureau (NCRB) data, between 2001and 2018, only 26 policemen were convicted of police brutality despite 1,727 such deaths recorded in India. The conviction rate is very low due to the lack of evidence because if we want to convict, we need to prove the crime beyond a reasonable doubt. Most of the death by police brutality attributed to reasons other than police brutality, which include suicide and death in the hospital during treatment.

Apart from this, more than 2,000 human right violation were also recorded against the police between 2000 – 2018, and only 344 policemen were convicted in those cases.

Recent Controversial Case

The custodial death of Father and Son has brought the nation face to face with its own George Floyd moment.

This had happened in Thoothukudi, Tamil Nadu where a father and a son died in the police station due to police brutality.

These two individuals were picked up by the police for violation of lockdown norms. This is not an isolated incident in that police station as two weeks ago nearly a dozen people were beaten up in the same station and out of that one person died and two were hospitalized. This incident led to public outrage against police brutality and started a new debate about third-degree torture by police. Such brutality is in most cases seen against the poor minority and marginalised communities of society.² According to a Common Cause- CSDS Survey, half of all Indian police officers believe that Muslims have an instinctual tendency to commit crimes.

Except in Uttar Pradesh, Madhya Pradesh, Chhattisgarh, and Odisha, no policemen were convicted for such deaths across the country.

Reasons Behind Police Brutality

1. Absence of strong legislature:

India does not have anti-torture legislation and is yet to criminalize custodial violence, while action against culpable officials remains illusory. The anti-torture bill was discussed in the parliament of India in 2010 but is not passed to date. ³The idea to make a law against anti-torture came from UN Convention Against Torture 1975. As India is a signatory of the UN, our parliament had to make laws against torture.

Prevention of Torture Bill 2010 was presented in Lok Sabha. Under this bill, punishments are prescribed if any public servant commits or attempts to commit torture.

This bill simply and broadly explains the word torture as an act by a public servant or by a person with the acquiescence of a public servant, which causes grievous hurt or danger to life, limb, or health(whether mental or physical). Rajya Sabha has not passed this bill yet. To implement this bill changes, have to be made in the Indian Penal Code, Indian Evidence Act, and the Criminal Procedure Code.

2. The Indian state either denies the existence of torture in the country or defends its resistance to enact a law by claiming there are sufficient provisions in the domestic legal framework to prohibit and penalise torture.

3. Institutional challenge:

The entire prison system is inherently opaque giving less room for transparency.

4. Excessive force:

The use of excessive force including torture to target marginalised communities and control people participating or propagating ideologies that the state perceives as oppose to its stature.

5. Constitutional and Legal provisions:

● Protection from torture is a fundamental right enshrined under Article 21 (Right to Life) of the Indian Constitution.

● The right to counsel is also a fundamental right under Article 22(1) of the Indian Constitution.

● Section 41 of Criminal Procedure Code (CrPc) was amended in 2009 to include safeguards under 41A, 41B, 41C, 41D so that arrests and detentions for interrogations have reasonable grounds and documented procedures, arrests are made transparent to family, friends, and public and there is protection through legal representation.

In 2019 India had more than 1700 custodial deaths.

In the case D.K BASU VS STATE OF WEST BENGAL [1997 (1) SCC 416], the Supreme court said that Police brutality is an attack on the dignity of humans. Even after many recommendations and policy torture and death cases are increasing in police custody.

11 guidelines were given by the court which is to be followed by every police officer while arresting.

These rights are available to every arrested person in India.

In 2019 India had more than 1700 custodial deaths.

Steps Need to be Taken

● India should rectify UN Convention Against Torture: It will mandate a systematic review of colonial rules, methods, practices, arrangements for the custody and treatment of the person subjected to any form of arrest, detention, or imprisonment.

● Police Reforms: Guidelines should also be formulated on educating and training officials involved in the cases involving deprivation of liberty because brutality cannot be effectively prevented till the senior police wisely anticipate the gravity of such issues and clear reorientation is devised from present practices.

● CCTV Cameras should be installed in police stations including in the interrogation rooms – the Supreme Court ordered the same in December 2020.

● Surprise inspections by Non-Official Visitors (NOVs) should also be made mandatory which would act as a preventive measure against police brutality which has also been suggested by Supreme Court in its landmark judgement in the DK Basu Case in 2015.

● Law commission of India’s 273rd report recommends that those accused of committing custodial torture- be it, policemen, military or paramilitary personnel- should be criminally prosecuted instead of facing mere administrative action establishing effective deterrent and recommended ratification of the U.N Convention against Torture and other Cruel, Inhumane or Degrading Treatment (CAT) CAT was signed by India but is yet to be rectified.⁴

Conclusion

Police are the machinery that controls crime. If crimes take place in police custody, then we must lean on some other machinery to curb it. It is a major issue of human rights concern and one of the root obstacles to democracy. Enacting a law prohibiting torture is both a moral and a pragmatic imperative.

It is bizarre to note that the police force is one of the most untrusted executive organs of the government in a democratic country like India. This needs to stop before torture is normalized as a method of investigation.