PREVENTIVE DETENSION AND LAWS AGAINST POLICE BRUTALITY IN INDIA
INTRODUCTION- What is Police Brutality and Preventive Detention?
“I can’t breathe”, “Please, please, please”. These words are still fresh in the mind of citizens all around the world and will continue to ring shock and anger in their hearts for a long time to come. These were the last words of African-American George Floyd before he was consciously murdered by a group of Minnesota police officers. Even in India there are many cases where the general public has faced police brutality, the very current example is of farmers protest against the Farm Bill, 2020. The other example is of Anti-CAA protests, police brutality complacency were at its worst at JNU and Jamia.
According to the National Crime Bureau annual report on crime statistics, 427 people died in police custody from 2016 to 2019, which means that there is a death of 1 person every 4 days. This is the result of Police Brutality faced by the accused. It is a record in India that one of the three accused is only made liable for the crime so, in a survey with police officials 74% of them agreed or somewhat agreed that violent attitude is normal with the criminal accused, without knowing that the accused is guilty of the act. If we take the data of the last three years of death including judicial custody it shows that 5,476 people have died in custody which shows that the government has miserably has failed to focus on stopping police brutality on the accused.
Preventive detention means to detain someone in order that to stop that person from commenting on any possible crime or in other words preventive detention is an action taken by the administration on the grounds of the suspicion that some wrong actions could also be done by the person concerned which can be prejudicial to the state. Preventive Detention is the most contentious part of the fundamental rights enshrined in the Indian constitutions Article 22(3) provides that if the one who has been arrested or detained under preventive detention laws then the protection against arrest and detention provided under article22 (1) and22 (2) shall not be available thereto person.
PREVENTIVE DETENTION LAWS
There are two reasons for which a person can be put into jail. First is that he has committed any crime and the second is that there is a serious possibility that he will commit it in the future. The custody arising in the possibility one is called preventive detention and in this, a person is deemed likely to commit a crime. There are some question which arises here –
How it can be predicted that a person will commit a crime in future?
What are the certain implications of arresting an individual without having committed a crime?
Why the need of preventive detention in peace time. It is against the safeguards provided by Article 22 to our citizens.
These laws are repugnant to the modern democratic constitution. We do not find such law in any of the country. England had provision of preventive detention only during the time of war. Preventive detention concept is unlawful in most countries like USA and UK, then why India is having such a law?
We can find the answer of it below –
India is a country having multi-ethnic, mutli-religious and multilingual society. Caste and communal violence is very common in India. Apart from that the circumstances at the time, when our constitution came in force demanded such provisions. This is evident from following statement of Dr.BhimraoAmbedkar:
“….in the present circumstances of the country, it may be necessary for the executive to detain a person who is tempering either with the public order or with the defense services of the country. In such case, I don’t think that the exigency of the liberty of an individual shall be above the interests of the state” Dr. B R Ambedkar.
However, the provisions of the constitution seem to be ambiguous and this ambiguity has been tried to do away with some provisions. These provisions are mentioned in Article 22 (1), 22(5), 22 (6).
A summary of these provision are :
Each case of preventive detention necessarily be authorized by the procedure established by law not according to the will of executives.
It cannot be extended beyond the period of 3 months.
Before the Advisory Board composed of judges of the High Court, every case of preventive detention must be placed.
The case should be presented within 3 months.
Every person detained should be given earliest opportunity to make a representation against it.
Indefinitely detention is unlawful.
Article 22(7) provides exception to the abovementioned provision. It says that When parliament prescribes by law the circumstances under which a person may be kept in detention may be kept in detention beyond 3 months without the opinion of the advisory board.
Maximum period of detention can also be described by the parliament under the same law.
Preventive Detention As “Evil” Of Article 22
There are several flaws on uncertainty in constitution of India and Article 22 is one of them.
Under Article 22, preventive detention is also implemented any time and therefore the constitution expressly allows a person to be detained — without charge or trial so it's a devastating blow to the liberties of the citizens of the country.
It precludes the Article 4 of the International Covenant on Civil and Political Rights (ICCPR) which allows that rights can only be limited “in time of public emergency which threatens the life of the nation”.
It doesn't provide any procedural protections like to lessen the detainees’ vulnerability to torture and discriminatory treatment; and to stop officials’ misusing preventive detention for subversive activities.
The long period of detaining i.e. 3 months, poses a threat of torture.
Preventive Detention has been misused, particularly against the Dalits and the minorities.
The Power of states to make similar legislations has been misused.
Before a preventive detention case is brought before the High court of the state, a 3 member planning board headed by a sitting Judge is constituted by the government to look at whether the detention is justified or not. But, the proceedings of the Board are confidential apart from that a part of the report which expresses the opinion of the Board.
Supreme Court On Preventive Detention
There are some cases in which the SC has talked about Preventive Detention-
A.K. Gopalan vs The State Of Madras (1950 AIR 27, 1950 SCR 88)
In this case the court upheld the validity of the Prevention Detention Act. It also held that exhaustive procedural safeguards id provided by the Article 22 against the Preventive Detention.
Ram ManoharLohia v. State of Bihar (1966 AIR 740, 1966 SCR (1) 709)
in the abovementioned case the Hon’ble SC tried to distinguish between security of state, public order and law and order. It was quoted by the Justice Hidyatullah that most severe of acts could justify Preventive Detention:
The largest circle is of Law and Order under which the circle of Public order is there and the smallest circle is the security of state. So from this it is easy to determine that one act can all of them or two or only one.
It was concluded by the Hon’ble Court that only law and order without the two categories cannot be only ground and justified for detention.
LAWS AGAINST POLICE BRUTALITY IN INDIA
Witnessing the events that took place in the past few months have raised a very crucial question before us regarding the justifiability of police brutality and the magnitude of police authority. Considering the case of Palghar lynching, Hyderabad encounter, public protest at the time of Citizenship Amendment Bill, 2019, violence in JamiaMilliaIslamia or police brutality in the times of COVID-19 pandemic, and in many similar events or cases before that, all brings us to the same question that what remedies do we possess to prevent police brutality?
The ways for holding police accountable for misconduct is through courts where the police officers can be directly sued for alleged abuse of powers. The police can be held liable under Criminal law (under Criminal Procedure Code, 1973 and Indian Penal Code, 1860), Public law or through private tortious liability.
Laws Under Criminal Law
CrPC, 1973 provides procedural safeguards to government servants; similarly Police officers are protected under Section 197 of CrPC and more narrowly, under Section 132 of the CrPC, in order to prevent vexatious legislation. The requirement of the section mentioned above is that authorization must be received from the Central or the State Government before any criminal proceeding is introduced against a police officer who has committed a criminal offence “while acting or purporting to act within the discharge of his official duty”.
In the very similar manner Section 132 of CrPc mandates approval of the government against any prosecution of police officers for any act to be done under Section 129 to 131 CrPC, which deals with controlling an unlawful assembly that is supposed to have caused a breach of peace. If the accused police officer is able to prove that the force used by him was due to disperse of the unlawful assembly to which the force was applied then he/she gets the protection under Section 132.
The main point to be noted is that the procedural safeguards specifically mentioned under Section 197 CrPC is often misused by the police and thereby, not allowing the complaints or First Information Report (FIRs) to be filed in one go. Therefore this acts as a major hurdle as an effective remedy for delinquency.
Law authorizes the police officer to apply force only at the time of exercising the right to private defense or when it is exclusively necessary to arrest a person accused of an offence punishable with death or imprisonment for life (section 46, Code of Criminal Procedure). Although the guidelines with respect to encounter killings and custodial deaths have been laid down by the Supreme Court, no law has been framed to protect the dignity of individuals from the barbarity of people in uniform.
Laws Under Public Law
In Public law liability the police force and brutality finds its way in the Constitution of India and under Administrative law as well. For violation of fundamental rights enshrined in Part III of the Constitution such asright to life and liberty, protection from discrimination and unequal treatment, protection against arbitrary arrests and illegal detention etc., the courts have held Police officers liable and even have imposed liability on the state by making the officers pay compensation for the harm caused.
The precedent to law was set in the case of Rudul Sah vs. State of Bihar (AIR 1983 SC 1086) in 1983 where the Supreme Court under writ jurisdiction, passed an order to pay compensation for the violation of Article 21 and Article 22 of the Indian Constitution. The petitioner in this case was unlawfully detained in prison for 14 years even after his acquittal. The Petitioner on finding that his detention was totally unjustified, the petitioner demanded for compensation. Though an ordinary remedy by the means of a civil suit was available to the petitioner for claiming compensation, the Supreme Court held that it wouldn’t provide any justice for illegally detaining any person. Therefore the Supreme Court ordered a sum of Rs 30,000 to be paid by the State within two weeks.
In the case of PUCL vs. Union of India (AIR 1997 SC 1203) the issue before the Supreme Court was “Is the State open to deprive a citizen of his life and liberty otherwise than in procedure prescribed by law and yet claim an immunity on the ground that the said deprivation of life occurred while the officers of the State were exercising the sovereign power of the State”. The Court in this case concluded in the negative.
Quantum Of Punishment In Appeals From Disciplinary Proceedings
The Police official can be held accountable for applying force and brutality on general public under the Police Act, 1871.
The Police Act, 1871 lays down offences and processes under Section 7 of the Police Act, 1871 which deals about the “Appointment, dismissal of inferior officers” and Section 29of the Police Act, 1871 deals with “Penalties for neglect of duty”. Such proceedings takes place through internal disciplinary which are authorities to collect evidence and pass binding orders. These orders can be appealed in the High Court and in the Supreme Court. The relevant question to this memorandum is the extent to which the courts can interfere with the punishment imposed by such disciplinary proceedings.
The Supreme Court in Ramanuj Pandey v. the State of M.P. and Ors. (2009) 7 SCC 248) intervened in the punishment made by the disciplinary authority on the principle of proportionality. In this case, the appellant police officer at the time his duty apprehended and registered Laxmi Narain under Lunacy Act without any sufficient reason, causing harassment to him. Consequently, the punishment of dismissal of the appellant imposed by the disciplinary authority was relieved with one of compulsory retirement from the date of dismissal from services. Therefore, the disciplinary authority will decide the quantum of punishment for the misconduct and the higher courts can interfere in rare cases where the quantum of punishment is inappropriate to the offence committed.
The National Police Commission (Npc, 1977) And Padmanabhaiah Committee (2000)
The NPC and Padmanabhaiah Committee inspected and observed the intricacies of departmental accountability at great lengths. In its first report NPC recommended that most of the complaints against policemen should be dealt with by the Police Department itself. Whereas, Padmanbhaiah Committee focused on Police Brutality in detail and said that the complainant should have access to an independent non-statutory authority headed by the District Magistrate in case the complainant is not satisfied.
A retired police officer in 1996 filed a petition requesting the Supreme Court to direct the Union Government to frame a new Police Act ensuring higher accountability of police to the law of land and people. The Court in its judgment (2006) referred to the Sorabjee Committee Report and Ribeiro Committee Report.
The Police Complaint Authority
The Police Complaints Authority (“PCA”) was introduced in the Prakash Singh v. Union of India ((2006) 8 SCC 1) by the Supreme Court in 2006. This Act incorporates the recommendations of the Supreme Court, the PCA is a body that can receive and hear complaints against Police officers of all ranksof the State and the District level. According to the Supreme Court judgment, the PCA can take complaints made either by the victim or the victim’s representative. The authority hold powers of the Civil Court under the Code of Civil Procedure, 1908 including power to summon witness, compel appearance, inquiries, compel registration of First Information Report (FIR) against errant officers or initiate departmental inquiries.
The Soli Sorabjee report which drafted the Model Police Act, recommends that the Commission ought to have five members – a retired High Court judge, a retired police officer, a person with minimum 10 years of experience (judicial officer, public prosecutor, practicing advocate, or a professor of law), a person of standing from the civil society member and a retired officer with public administration experience. The Act also recommends that at least one member of the Commission must be a woman and not more than one member should be a retired police officer in the rank of the DGP.
Implementations Of These Laws In India
Till date only few states have taken initiative to implement the Court’s order laid in the Prakhar Singh’s case. Delhi established PCA in 2018 pursuant to a petition filed by Common Wealth Human Rights Initiative in the Delhi High Court. As well as Law Commission of India’s in its 262nd Report levied the need for implementation of directions issued by the Supreme Court.
In Parallelthe Uttarakhand High Court, in ArunKukmarBhadoria v. State of Uttarakhand, (Writ Petition (PIL) No. 48 of 2017) while framing guidelines to improve the condition of policemen, referred to Prakash Singh’s case and observed that-
“The recent incidents of death in stage-managed police encounters have once again underscored the need for a strong accountability mechanism. The proposed Complaints Authority, no doubt, would investigate any complaints in this regard, however, in order to totally eliminate this unacceptable practice, a professional accountability mechanism should also be institutionalized. Therefore, all cases of deaths in encounters, irrespective of whether a complaint has been made or not, should be inquired into by the proposed Inspectorate as an ongoing exercise to ensure police accountability.”
The NPC suggested removing the veil of protection of Police Official secured under section 132 and 197 of Code of Criminal Procedure. However, no steps have been taken yet in that regard.
With the mounting control of Government over policemen, either directly or indirectly, the number of instance of police brutality has increased substantially.
Rule of law is a fundamental feature of enshrined in our Constitution and no individual, including the one appointed to protect it, are allowed to degrade it. Various Committees in India have recommended separating Police force from any type of political interference. Therefore, In light of recent turmoil against the violent acts of the police, it becomes paramount to put in sufficient checks over instances of police brutality.
Police are expected to treat the citizens with dignity, protect them which the Indian Constitution provides, and confront only when there is a high urge to take their guns on. They can use physical forces under certain circumstances, legally, but the acts sometimes they do is way too harsh on the innocent people. They must not cross their lines and prove their act stated as “POLICE BRUTALITY”. The extrajudicial killings, fake encounters, harassing women, abusing non-nationals, torturing LGBTQ community, which results in their human rights violation, done by police must taken into account by the legislature. It is considered as a severe offence but still, there are cases where the complaints of citizens do not even reach the investigation stage (POLICE CORRUPTION).
Citizens can’t have any misconduct by any of the police officials. We must stop for a second and look at our police culture and identify what they think is good or bad. We must evaluate each and every cop on not how much they do but what and how will they think and do.
In completion of this Article, on Preventive Detention and laws against Police Brutality in India I have taken help from the following websites:-
Statutes and Act Referred
The Model Police Act, 2006 ( Section 160)
Indian Penal Code, 1860
Code of Criminal Procedure, 1974
Preventive Detention Act, 1950
NAME- AAYUSHI KIRAN
COURSE AND YEAR- BBA LLB, 2ND YEAR
COLLEGE- THE ICFAI UNNIVERSITY, DEHRADUN