What is Police Brutality?
Police brutality represent the use of uncontrolled and redundant force on the part of a police officer. Police brutality in any form results in violation of citizens' civil rights. Police brutality is not only projected through physical means but also through verbal abuse, arbitrary arrests, etc. Often it is difficult to explain the degree of excessive force. Force is permitted up to a certain length in all jurisdictions. For example- When police are attempting to detain an individual. However, there is a fine line between use of force that is warranted and use of such force that results in infringement of individuals’ civil rights. Once the police officer crosses the line of fair use of power, they commit the crime of police brutality.
India is not unscathed by the incidents of police brutality. Torture and breach of fundamental rights by police officers in India is rampant. Police brutality in India is executed in various forms including extortion, forcing the detainee to lie naked on ice, amputating different body parts of the victim, immersing the face in water until the individual is out of breath, burning the body parts, giving electric shocks, arbitrary arrest, verbally assaulting the victims, accused, witnesses, etc. Abuse of power and maltreatment is apparent on face in all the above cases. Sexual Harassment, racial discrimination, wrongful search and seizure by police officials also come under the purview of police brutality.
History of Police Brutality
Police brutality is not a recent phenomenon in India. It has existed in the country since the British Raj. The laws during the Victorian Era were formulated in such a way that it accorded police brutality and its numerous methods a legal sanction. It is primarily due to this reason that it is still persistent in the country as an aftermath of the barbarian English laws.
One of the most prominent examples of police brutality in history of Indian Law is evident from the Torture Commission Report of 1885. A total of 79 complaints against the police were obtained to be true by the Commission in 1885. The methods of torture or third degree were described by the Commission. Among the principal methods in vogue in police cases, the Commission acquired the following - twisting a rope tightly around the entire arm or leg to impede circulation; suspending by arms while tied behind the back; searing with hot iron; placing scratching insects like carpenter beetle on the navel, scrotum, and other sensitive parts; dipping in wells till the person is half suffocated; squeezing the testicles; merciless beating with canes; prevention of sleep; nipping the flesh with pincers; putting pepper or red chilies in eyes or in private parts of men and women; these cruelties were sometimes preserved until death sooner or later ensued. Concluding from the above-mentioned methods, the scenario of the present-day forms of brutality by officials has not changed much.
Police brutality in India came to the notice of higher authorities in 1996 during the ‘Shri D.K. Basu, Ashok K. Johri vs State of West Bengal, State Of U.P’ (AIR 1997 SC 610) case. Many issues came into the limelight and mainly the concern of arbitrariness of Policemen in detaining a person and crimes committed by the officers against victims under police or judicial custody was dealt with. The case dealt with the requirement of the protection of the fundamental rights and human rights of the individuals in prison and custody. As a result, court issued a list of 12 guidelines in addition to the constitutional and statutory safeguards which are to be followed in all cases of arrest and detention.
Some of the guidelines included - (1) The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
(2) The arrestee should be subjected to medical examination by trained doctor every 48 hours during his detention in custody.
(3) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time.
(4) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
Cases of police brutality had increased at an alarming rate since the Covid-19 lockdown period. In May 2021, A 17-year-old boy died after he was allegedly beaten up by the police and thrashed with a stick in Bhatpuri area of Uttar Pradesh for violating the ongoing covid-19 curfew guidelines in the state. Another incident occurred in the same month in Unnao district of Uttar Pradesh where three police officials were charged with the murder of an 18-year-old vegetable vendor, Faisal Hussain. It was reported that the deceased was picked up from the market and was beaten so heard that he died of the injuries. Incidents of police brutality were also observed during the on-going Farmers Protest in Delhi, India.
In June 2020, political uproar arose in the country over the custodial death of a father-son duo in Tamil Nadu. Jayaraj and Bennicks were picked up for questioning by the cops for violating the lockdown rules. The police reported that they had kept their shop open during the lockdown. They were allegedly tortured and beaten to death by police. Police officials undertook very stringent measures to enforce the lockdown guidelines including hitting individuals with lathis and destroying goods of vendors and shopkeepers. Since the lockdown, police brutality has gone overboard as they have started misusing their power and taking undue advantage of it.
Police brutality is also extremely widespread against the LGBTQ+ community in India. In July 2020, Sanjit Mondal, a gay man was approached by two men on a motorcycle in Kolkata. At first, he resisted going with them so the police officials verbally and physically assaulted, and tried to force him on to their bike. When he finally went along with them, the police officers kept asking him inappropriate questions like ‘Why do you behave like a girl? Why do you have long hair? Why are you wearing earrings? Why do you walk like a girl? Do you have a boyfriend or a girlfriend?’ He was taken to the police station where he was humiliated, threatened and abused for his sexual orientation. In October 2018, then 25-year-old Obhishek Kar, a trans woman, was approached by the police officials and they slapped Kar, used transphobic slurs and accused them of being a sex worker. In September 2018, the Supreme Court of India ruled that consensual homosexual acts do not constitute a crime anymore however cases of police brutality like these continue to surface.
Reasons behind police brutality
On many occasions, the Indian state has completely denied the existence of the police brutality even when it is evident through various incidents in the country. There does not exist any statutory framework in India that forbids and penalize brutality. Lack of anti-brutality laws in the country is the major cause behind its rapid increase. However, one such step was taken in the parliament in 2010 through the introduction of Prevention of Torture Bill which sought punishment for public servants if they commit acts of brutality against civilians. However, Rajya Sabha has not passed this bill yet.
In vogue culture, Indian cinema unfailingly exhibits episodes of police officials mistreating and torturing suspects in custody which in a way gives the impression of glorifying police brutality. Individuals especially from deprived sections of society fall victim to the acts of police brutality. There is very less lucidity in the prison system of our country which leaves very little to almost no scope to keep a check on the activities and functioning of the police officers.
Legal Provisions against Police Brutality
Since many incidents of police brutality while securing arrest came into limelight, various provisions have been induced in Criminal Procedure Code (CrPC) 1973 that specifically deals with the method that police officials are supposed to undertake while securing anyone’s arrest.
As per the provisions contained in Section 41 in The Code of Criminal Procedure, 1973 Police officers have the authority to arrest an individual without a warrant however the offence for which one is being arrested must be a cognizable one. Also, the burden of proof that one has committed the alleged crime falls on the police. Therefore, police cannot arrest anyone without reasonable proof or justified grounds.
Article 22 in The Constitution of India 1949 stands out as the most significant provision against police brutality as it guarantees protection to citizens against arrest and detention. According to Article 22, if a police officer has a reason to believe that one has committed a cognizable offence, it is the responsibility of the officer to inform such an individual about the grounds of arrest and also inform them about their rights while they are in police custody including the right to consult and to be defended by a legal practitioner of their choice.
During the course of arrest, the police officers are expected to follow a strict code of conduct. This code of conduct is explicitly specified under Section 46 of The Code of Criminal Procedure, 1973. The section comprehensibly states that the police official shall employ force against the person being arrested only if they resist or attempt to evade the arrest. However, if there is submission to the custody by word or action then police are not authorized to exert excessive and unlawful force.
In case a person tries to evade the arrest or resist it, the police officers have the authority to use force however there is limit on exercise of such force. Section 49 in The Code of Criminal Procedure, 1973 prohibits unnecessary restraint. It asserts that ‘The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.’
Article 21 in The Constitution of India 1949 provides protection of life and personal liberty. Every act of police brutality commits the violation of our fundamental right guaranteed by Article 21. It is an anti-torture legislation which states that a person’s right to his life and personal liberty shall not be curtailed.
Section 29 in The Police Act, 1861 sets out the penalties that shall be levied upon police officials for neglect of duty. If any police officer is responsible for violation of duty or deliberate breach or neglect of any rule or law or if the police officer has subjected any person under his custody to violence or unwarranted use of force, then they shall be liable to a penalty not exceeding three months' pay, or to imprisonment with or without hard labour, for a period not exceeding three months, or to both.
The department of police has been accorded the responsibility of keeping a check on crime and offenders and to enforce law. Nonetheless, when the same machinery infringes the exact duty that they had been imparted, it results in gross violation of human rights. Acts of torture are undertaken by police officials every day in the country for the enforcement of law. However, as the very famous saying goes two wrongs don't make a right. Acts of brutality by police officials perpetuate in creating a hostile environment for civilians ultimately resulting in loss of faith in the judiciary of the country. Acquiring confessions by torturing victims is often expedient or sometimes the sole way for police officers to resolve crimes. Such an attitude prompts them to believe that violence and misuse of power is an easy way to obtain justice which in a way gives legal sanction to the methods of brutality they resort to. Such a perspective is the supreme cause behind citizens losing faith in the machinery of the police force. Some of the Indian laws condone and sanction the use of violence by officials. Thus, restraining such laws and acts would go a long way in curbing violence. In a democratic country like India, holding police officers accountable for violence and penalizing them for their acts of brutality should be the prime concern for the state.
1) Torture Commission (1885) Torture Commission Report: Parliamentary Papers 420, National Archives, New Delhi, India.
2) AIR 1997 SC 610
Submitted by -
Second year, BLS. LLB
KES Jayantilal H. Patel Law College, Mumbai.