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Treatment of Police Brutality Through The Medicine of Law

“Who will police the police?” A bench of Supreme Court headed by Hon’ble Justice V.R. Krishna Iyer in Prem Chand vs. Union of India, 1981 AIR 613, 1981 SCR (1)1262, had cautioned, “Police methodology with sinister potential to human liberty deserves strong disapproval and Constitutional counteraction by this Court. If courts adopt an ‘unrealistic approach’, it would only reinforce a belief in the police that no harm would come to them if an old prisoner dies in the lock-up.”

The Court further observed, “The use of force against an individual in custody in his loneliness and helplessness is a grossly unlawful and most degrading and despicable practice that requires to be condemned in the strongest of terms, and we do so.”

It is a matter of concern that India had adopted and signed the United Nations Convention Against Torture and Other Cruel Inhuman and Degrading Treatment or Punishment in October, 1997. Despite this, occurrence of custodial deaths are rampant. According to National Crime Records Bureau (NCRB), during the year 2017, there have been more than 100 custodial deaths, with very few convictions. In all, 427 persons died in police custody in India between 2016 and 2019.

In  D.K. Basu judgement, Justice A.S. Anand and Kuldip Singh of Supreme Court observed that custodial violence, including torture and death in lock-ups, strikes a blow at the rule of law.

A charge sheet filed by Central Bureau of Investigation (CBI), in Madras High Court on September 25, 2020, revealed that on June 20, 2020, at SathanKulam police station in Tamil Nadu’s Thoothukudi district, police tortured the father-son duo P Jeyaraj, 59, and his son J. Bennicks, 31, for seven hours between 7.45pm and 3am, stripping them naked, beating them until blood oozed on to the floor, and then forced them to clean the spill. The charge sheet is against nine police personnel on charges of criminal conspiracy, murder, wrongful confinement and other sections of the Indian Penal Code (IPC) in this matter.

Jeyaraj and his son Bennicks died of grievous injury on June 23, and June 22, 2020, respectively, spotlighting the horrors of custodial violence and police excesses during the Covid-19, lockdown.

On June 19, evening, a friend of J. Bennicks informed him that his father P. Jayaraj has been picked up by the police for keeping their mobile handset shop open during curfew. However, the CBI probe later on revealed that there was no such violation as, according to the district magistrate’s order, shops were allowed to be open till 8 pm at that time.

Bennicks went to Santhakulam police station and saw his father beaten up inside the police station and an altercation ensued between him and sub-inspector Balakrishman, said the charge sheet. After this police “decided to teach him a lesson on how to behave”, it added. Bennicks, too, was taken into custody and beaten up “more severely” according to the charge sheet.

“Whenever there used to be a lull, accused Inspector S. Sridhar used to prod the staff by asking about reasons for silence and thereby instigating them further to start a fresh round of beating. Not only this, their (the father and son’s) clothes were removed to add to the brutality of the torture. Both Jeyaraj and Bennicks, turn by turn, were made to bow down on a wooden table in underwear only, their hands and legs were caught hold by accused police officials, so that they were not able to defend themselves”, the CBI charge sheet said.

They were hit in the back and other parts of the body using lathis, the charge sheet added. Jeyaraj pleaded with officials to stop, saying he was diabetic and had high blood pressure, but police tortured him from 7.45 pm on June 19, 2020, to 3 am on June 20, 2020, said CBI’s charge sheet.

The CBI investigation revealed that so much blood was oozing from the wounds of Jeyaraj and Bennicks that officials involved in the torture changed their clothes twice, before taking them to the hospital and then to court. “……these clothes were thrown by them in the dustbin of a government hospital.” The charge sheet added that when the police realised witnesses in the police station noticed the assault, they filed a ‘false case’ against the duo over violation of lockdown rules. The State government on the directions of Madras High Court had entrusted the case to CBI in July, 2020, in the result, all nine accused police personnel are in jail.   

The term ‘police brutality’ includes various human rights violations by police, such as physical assault, torture using third degree methods, extracting extra- judicial confession from the accused persons, custodial death and fake registration of cases for extortion or vengeance. The brutality also includes indiscriminate use of force by police against protestors. The spectre of police brutality has haunted the world for centuries. All countries across the World have been in the grip of police high-handedness for obvious reasons.

In India, we can begin recalling the occurrence of police brutality from Jallianwala Bagh massacre which took place on April 13, 1919, killing 400 Indians and injuring over 1500 people. Police attitude in  post-independence India has remained colonial in nature . To prove the manifestation of police brutality, a few cases can be cited here:-

On December 12, 1930, Bombay Cotton Mill worker Babu Genu Said was crushed by a truck at the order of police. In 1970s, Kolkata witnessed the unleashing of terror by police to quell the  student movements; or Bhagalpur incident of 1979 and 1980, when police was accused of blinding 31 undertrials by pouring acid in their eyes.

Recently, on December 15, 2019, videos taking rounds on social media show Delhi Police along with para-military personnel storming the campus of Jamia Millia University and assaulting the students who were peacefully protesting against Citizen Amendment Act. Policemen are seen attacking students with batons after entering the library where students were studying. Policemen even chased the students who tried to hide in bathrooms. They didn’t spare even the girls.

On January 5, 2020, around 50 masked goons allegedly belonging to ABVP  entered the campus of the Jawaharlal Nehru University, attacked students, teachers and vandalised building  and public property. Police have been accused of failing to intervene and control the situation despite it’s legal obligation to protect the victims and prevent the criminal assault.

Policemen are expected to be unbiased and secular in character. However, over the past few decades, with the handling of communal riots in 1984, 2002 and February, 2020, serious questions have been raised about the fair conduct of police. About 1984 anti-Sikh riots, High Court of Delhi noted, ”Though we boost of being World’s largest democracy and Delhi being it’s capital, the sheer mention of the incidents of 1984 riots in general and the role played by Delhi Police and State machinery in particular makes our heads hang in shame in the eyes of the world polity.”

The similar type of attitude Delhi Police has repeated in recent Delhi riots case, in which 17,000 page charge sheet has been given by Delhi Police. The perpetrators and instigators of violence have allegedly been given clean chit. In an interview given to Karan Thapar for The Wire on February 28, former commissioner of Delhi Police, Ajay Raj Sharma, commenting on partisan role played by Delhi Police in February riots said that he was worried the way police have become communal. Equally worrying, the police seem scared of BJP and intimidated by the government. Lack of professionalism is the main problem here. Their leadership lacks spine and moral character. 

The  sudden nationwide announcement of lockdown following the COVID-19 in March unleashed the wave of  police brutality across the country, beating, assaulting and killing innocent people on the pretext of  violating lockdown norms. A large number of photos and videos have surfaced in newspapers and on the Internet and television news channels portraying the terror, violence and highhandedness by the police officials.

In one such news report, police did not even spare a CRPF’s cobra commando. On April 23, 20, Constable Sachin Sunil Savant of Belagavi’s Examba village was assaulted, handcuffed and arrested by Karnataka police for not wearing mask while cleaning his bike in front of his residence.

Another case of ‘high-handedness’ of Uttar Pradesh police came to light on May 11, 20, when a 53 year old school teacher Deepti Saraswat, in Agra tweeted for urgent help after some policemen hurled abuses at her and her doctor husband currently posted at a Covid hospital at Aligarh.

The couple saw some policemen abusing two elderly persons on scooters on the road in front of their house. “We were seeing this happening from our balcony since 6.30 a.m. as policemen were rebuking and abusing anyone who was on road. Within no time, SHO (Ajay Kaushal) and Assistant Superintendent of Police, Hariparvat, Saurabh Dixit appeared on the scene. The SHO got down from his jeep and started beating the two persons who were asking for mercy. My instinct forced me to record it on my mobile,” read her tweet.

When the policemen saw her recording the incident, they allegedly started hurling abuses. She claimed the SHO entered her house and deleted the six second long video.

In a most indecent and inhuman incident, on June 10, 2020, in Uttar Pradesh’s Balrampur district one sub-inspector and two constables had been caught on camera along with four municipal workers, removing the dead body of a man in a garbage collection van.   

The lockdown  and the entire pandemic period has been witnessing countless cases of police brutality, in many cases leading to custodial death.

On May 16, 2020, an NGO, Commonwealth Human Rights Initiative(CHRI), filed a complaint with the National Human Rights Commission (NHRC), that 15 people died in 7 states, following police action or in custody from March 25 to April 30, 2020. The CHRI report said that 12 of the 15 deaths occurred in the result of severe police beatings as ‘punishment’ for violating the lockdown imposed to control the spread of COVID-19, and three in police custody.

Taking cognisance of CHRI’s complaint, the NHRC has asked for action taken report from the authorities of seven States, where 15 people died following physical assault and torture given by police on the pretext of lockdown violations.

No country is free from the curse of police brutality. Many cities in United States  have been rocked by protests against police brutality following the May 25 killing of a black Minneapolis man named George Floyd by a white policeman. Videos of policemen killing Floyd by suffocating him went viral. Further, proliferating videos of police arresting or tear gassing seemingly peaceful protestors raised the issues of human rights violation. However, researchers and activists say that solutions are no mystery: Evidence-based changes to policy around policing can reduce deaths at the hands of the police. The scientific procedures are available to combat police bias and killings.

The term ‘police brutality’ was first used in the American press in 1872, when the Chicago Tribune  reported the beating of a civilian under arrest at the Harrison Street police station. Early records suggest that labour strikes were the first large-scale incidents of police brutality in the United States, including events like the Great Railroad Strike of 1877, the Pullman Strike of 1894, the Lawrence textile strike of 1912, the Ludlow massacre of 1914, the Great Steel Strike of 1919, and the Hanapepe massacre of 1924.

In the United States, it is common for marginalized groups to perceive the police as oppressors, rather than protectors or enforcers of the law, due to the statistically disproportionate number of minority incarcerations.

In Austria, police accountability is missing. There has been a notable lack of commitment to addressing the violation of civilians’ rights. Amnesty International reported that in 1998-1999 very few policemen who committed  violation of human rights were brought to justice. This was worsened by the fact that many people who made a complaint against police were brought up on counter-charges such as resisting arrest, defamation, and assault.

In Indonesia, there are cases of police corruption involving hidden bank accounts and retaliation against journalists investigating these claims. One example occurred in June 2012 when Indonesian magazine Tempos journalist activists were beaten by police. Separately, on 31 August 2013 police personnel in Central Sulawesi province fired into a crowd of people protesting the death of a local man in police custody; five people were killed and 34 injured.

In Hong Kong,  police stormed Prince Edward station and attacked civilians on 31 August 2019. During the 2014 Hong Kong protests, there were numerous instances of police brutality. Seven policemen were caught on video kicking and beating a prominent political activist who was already handcuffed. There had also been more than hundreds of incidents of police beating passers-by with batons. Pictures on local TV and social media show demonstrators being dragged behind police lines, circled by police officers so that onlookers’ views were blocked.

In Turkey, police brutality was one of the main issues arising from the 2013 protests. Turkey has a history of police brutality, including the use of torture particularly between 1977 and 2002. Police brutality featured excessive use of tear gas (including targeting protesters with tear gas canisters), pepper spray, and water cannons. Physical violence against protesters has been observed, for example, in the suppression of Kurdish protests and 
May Day demonstrations. The  2013  protests in Turkey were in response to the brutal police suppression of an environmentalist sit-in protesting the removal of Taksim Gezi Park.

In France, The Human Rights Watch and Amnesty International reported human rights violations including physical and psychological abuse as a result of excessive force towards Muslims when undertaking house raids. There have been a number of high-profile cases of alleged police brutality which have gained media attention, including the death of Lamine Dieng on 17 June 2007, who died after suffocating in a police van while he was constrained.  This same method of restraint was seen to be used against Hakim Ajimi who died of positional asphyxia as a result of overwhelming pressure being placed on his chest and neck by police.

In Germany every year, around 2,000 complaints of police brutality are reported, though it is highly suspected that the actual number of cases is under-reported.  As high-profile cases like the 2014 Cologne New Year’s Eve incident become more prevalent, racist and xenophobic attitudes have been reflected in instances of police brutality. High profile cases of police brutality have been reported to occur as far back as 1967.

The Greek Police is known officially as the Hellenic Police. The Hellenic Police have a relatively long history of police brutality. The level and severity of police brutality in Greece over the last few years have been profound. Due to the recent financial crisis, many austerity measures have been enforced, resulting in many individuals and families struggling to survive. Greek citizens opposed these austerity measures from the beginning and showed their disapproval with strikes and demonstrations. In response, police brutality has significantly increased, with consistent reports on the use of tear gas, severe injuries inflicted by the police force, and unjustified detention of protesters.

In Northern Ireland (UK), police brutality has been a long-standing issue due to unsavoury police procedures used during the troubles to obtain admissions of guilt. During 1968 until 2007, a civil war took place between those who wanted Northern Ireland to remain in the United Kingdom (predominantly Protestants) and those who did not (predominantly Catholics). During this time as many as 50,000 people were physically maimed or injured.

Back home: Discussing how police reforms still remain a distant dream even after the 2006 Supreme Court judgment on it, members of the Indian Police Foundation (IPF), a multi-disciplinary think tank, have recently made an appeal to implement these reforms at the earliest.

“There were great expectations that changes would usher in a new era for the police and make it people-friendly. The Rulers’ Police would metamorphose into People’s Police,” the Foundation said in an appeal during an online event on its fifth anniversary.

Delivering the IPF Foundation Day lecture on how reforms in police and criminal justice are crucial to safeguarding democratic rights of citizens, Justice Madan B. Lokur, former Supreme Court judge, said that unless the police is reformed in line with the top court directions, there will be instances wherein FIRs  are not lodged, investigations carried out are shoddy and justice is delayed.

Justice Lokur also said that there is a massive “trust deficit” in policemen. “There are reports suggesting that 29 per cent of respondents trust police, 55 per cent believe they are corrupt and custodial deaths are a concern which needs to be dealt with.”

The appeal by the foundation stated that it was “very unfortunate” that none of the major political parties of the country have shown interest in police reforms. “It seems they all find it convenient to use this instrument to subserve their political agenda.” The appeal also said that police reforms are directly linked with the progress of the country.”

The Supreme Court issued a judgment on police reforms on 22 September 2006, but despite clear instructions, the recommendations have still not been fully implemented.

In its verdict, the top court had directed setting up of three new institutions — State Security Commission to insulate the police from outside pressure, Police Establishment Board to give autonomy to police officers in personnel matters, and Police Complaints Authority to make the police more accountable.

Talking to Lawyers Update, Justice B.A. Khan, former chief justice of Jammu & Kashmir high court said, “Talking about police reform is a beaten track. And there is nothing new about the subject which stands traversed and covered by reports of various Commissions & verdicts of courts including Supreme Court but without any result on ground.

Justice Khan further said, “It is true that police brutality is growing all over even in advanced countries. It arises out of so many factors starting from shoddy recruitment, deficient training with no emphasis on police-public relationship, overburdening of police force and  it’s cast prejudices, political control and  so on.

Justice Khan agreed that police does register false cases for whatever purpose or reason it may  happen just because police exercises unbridled power without any checks and  balances, accountability and any effective and honest supervisory mechanism. There are no safeguards available for the victims and no workable  supportive court system to attend to their complaints. In the absence of the ‘Accountability’ and ruthless punishment prescribed for human rights violations in the force, police personnel at times behave as law unto themselves. So enforcing accountability in the force is a dire need but who will bell the Cat remains to be seen.
Justice Khan lamented that fake encounters by police have unfortunately  earned legitimacy in the wake of  ongoing terrorism in some areas of the country. The result is that in some cases innocent people in police custody are killed and such encounters are justified on the plea of self-defence. How to prevent such fake encounters again involves an issue of implementation. There is no dearth of guidelines and directives given by the NHRC and the  Supreme Court in this regard which are more observed in breach. For example in PIL vs State of Maharashtra (2014) Supreme Court laid down several directions like recording of tip off, registration of FIR, independent investigation followed by a magisterial enquiry into a death in police custody which are seldom followed.

Justice Khan doesn’t hope that the police force can be humanised by existing legal remedy. It requires change of mind sets and deep rooted attitudes. This can be achieved amongst other things by merit based recruitment of educated youth on entry point followed by training and periodical refresher courses teaching recruits that they are instruments of public service and not a tool of harassment, oppression and torture as they consider themselves to be. A spirit of public friendliness requires to be inculcated and a new culture evolved.

“The  police forces have many challenges to face in projecting an image of being the servants engaged in public service and to  shed the danda-wielding, abusive image  for coming upto people’s expectations. There is an outcry for enactment of a statute against custodial torture & fake encounter killing in our country. The move has recieved approval from parliamentary standing committee and also support from Supreme Court in Ashwani Kumar’s case but still governemnt is dragging its feet on the issue even India being a signatory to the relevant international convention, viewed Justice B.A. Khan.

Noted lawyer Yawer Qazalbash said, “During the ancient as well as medieval Indian period, the Kings subjected themselves to the rule of law; but, the concept took a paradigm change with the advent of Britishers here, who believed in the feudalistic notion of justice that the King was incapable of doing any wrong, thus he or his agents cannot be sued in his own courts. Such rule basically provided immunity to all civil servants in his service. Such immunity rule suited them to administer its Indian subjects and was incorporated in the 1935 India Act. All the civil servants were protected from any judicial action or prosecution.

After India achieved Independence unfortunately, without paying much heed to India’s democratic future and overruling the raised liberal arguments forwarded by many members of Constituent Assembly, the sovereign and official immunity was retained in almost wholesale into the Constitution and other laws inherited from the country’s colonial past.

The other democracies around the world have long before abandoned the official immunity laws long before, but here in India they have been  retained, despite The Law Commission’s recommendations, that at least Government’s sanction should not be  made a requirement if prima facie case was found established against the official; but so far nothing has been done. The position becomes worse under the Special enactments.

Under international law, the States have obligation: to prosecute and punish perpetrators or violators of torture, and to pay compensation to victims. The UN Special Rapporteur on Torture has documented the practice of de facto immunity in India, but of no avail.

Police brutality, registration of false cases and of false encounters is well known; and, often adverse observations coming from different courts in the country are well known facts, but irrespective of party in power nobody came to rescue to common man, despite a lately developed law of — “Victimology”.

The only cogent remedy seems to be in sight is to amend the laws of impunity on an urgent and priority basis to save the reputation of the country around the world and to give respite to common man. 

A leading Advocate Khursheed Zaidi viewed, “Governments are always dictators in nature, they always avoid law.  For administration police is a tool.  To stop the dictatorship, the fearless hard handed judiciary is required.  It is not alone the police which is brutal, it is the government which compels the police to register the cases against those persons who are opposing government policies. In India, I have seen  Justice JML Sinha of Allahabad High Court to non-suit Indira Gandhi, a powerful legislator. 

But ever since  the senior most judges of Supreme Court called a press conference and showed the helplessness of judiciary in India, the judiciary has become toothless feeble lion. When judiciary is sick, the government is young and unbridled.  Till the time  judiciary is not using its powers at the right time, the police fake counters and fake cases cannot be stopped.  The accusations on police is misunderstanding of the government system. Police alone in no way responsible for the mess, the real culprit is the government which use rather abuse the police for achieving its vested interests.  

Renowned Advocate K.C. Kaushik of Supreme Court lamenting the growing indiscipline and highhandedness of policemen in general said that According to S/3 of “The Police-Forces (Restrictions of Rights) Act, 1966”, “No member of a police force shall participate in, or address, any meeting or take part in any demonstration organised by any body of persons for any political purposes or for such other purposes as may be prescribed.” The violation of such provisions is a penal offence with imprisonment up to two years.

Kaushik further said that the Bar Council of India, in its communication dated November 6, 2019, to all the presidents and secretaries of Delhi’s district bar associations said, “The policemen remained absent from their duty for about 11-12 hours, shouted slogans, used filthy language, (not only for the lawyers, but also for the law courts) and they threatened to smash and kill the lawyers openly.The incident of police dharna was well-planned and the purpose was not only to threat lawyers, but also the government and judiciary.”

The communique lamenting the registration of the false FIRs pertaining to Saket Court incidents said, “The video of Saket incident, even if taken to be true, shows it to be a case of simple hurt under section 323 IPC, but the police has added offence of dacoity under section 392 IPC also. This is the conduct of police today. They are the law-breakers.”

Ubi Jus Ibe Remedium  (where there is a right, there is a remedy). The only remedy is to make another law called “The Prevention of Police Brutality, Indiscipline and Corruption Act”, thereby prescribing strictest punishment to the erring police personnel, including the death penalty for causing custodial death or death in the result of severe beatings or fake encounter. There should be Ombudsman or Police Complaint Authority under the proposed law following the directions of the Supreme Court in Prakash Singh case. Moreso, the concept of the policing has to be changed from ‘Police Force’ to ‘Police Service’.

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Hasan Khurshid

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