The debate over police misconduct in the United States has captured the attention of people around the world. Surprisingly, this has failed to spark a debate about instances in India of police bias, unfair treatment and brutality, as well as selective persecution of particular communities.

Two incidents from this year stand out: the Palghar lynching to which the police were meek bystanders and violence by Uttar Pradesh police against people protesting the Citizenship Amendment Act, especially children. Other excesses have also come to the fore during the lockdown to prevent the spread of coronavirus, such as the indiscriminate use of lathis against people violating the restrictions as well as against providers of essential services.

The number of deaths of people in the custody of the Indian police are staggering. Between April 2017 and February 2018, India recorded a staggering 1,674 custodial deaths, a rate of five custodial deaths per day, according to statistics placed by the Home Ministry before the Rajya Sabha. Uttar Pradesh topped the list, with 374 deaths reported in this period of under a year.

The Status of Policing in India Report 2019 by Common Cause and the Centre for the Study of Developing Societies reveals disturbing trends on police prejudice. It indicates a significant bias against Muslim. Half of the police personnel surveyed reported that Muslims are more likely to be naturally prone to committing violence. Similar prejudices existed across certain states against Adivasis, Dalits, transgenders and migrants from other states. About two in five of the police personnel surveyed in Bihar, and one in five in six other states, had never received human rights training.

A police officer raises a baton at a man who allegedly violated physical distancing norms in New Delhi on May 4. Credit: Adnan Abidi/Reuters

Recourse against misconduct

Keeping the above in mind, it is imperative to understand the framework for pursuing grievances against police excesses. Remedies, including compensation, can be sought before the High Courts and the Supreme Court under the Constitution of India for violations of fundamental rights. However, these constitutional courts are not widely accessible and usually deal only with egregious cases where the burden of proof is high.

Relief can also be sought before the National and the State Human Rights Commissions set up under the Protection of Human Rights Act, 1993, but their recommendations are not binding on the respective governments. Additionally, as of December 2019, three states did not have State Human Rights Commissions. In two states, the commissions were completely dysfunctional, while in ten states, the post of chairperson of the commission was vacant.

Criminal complaints can be filed against the concerned officers for offences under the Indian Penal Code, 1860, but there is no mechanism for an independent investigation. As a result, police personnel often refuse to register first information reports against their colleagues. The safeguard under Section 197 of the Criminal Procedure Code, 1973, is also often misused. This section requires prior sanction from the concerned government when a public servant, which includes a police officer, is accused of any offence committed in the discharge of official duty.

Lastly, since police is a state subject under the Constitution, disciplinary proceedings and punishment for errant police officers such as suspension, removal or deduction of salary is provided under respective state enactments. However, these proceedings, too, are tainted by the lack of independent and impartial oversight. Moreover, most state enactments are based on the Police Act of 1861, a Victorian-era legislation under which disciplining the police was not a priority.

The Prakash Singh judgement

In view of the absence of an effective framework for accountability against police misconduct, the Supreme Court in 2006, in the case of Prakash Singh v Union of India, directed states to establish Police Complaints Authorities at the state and district levels. The recommendations of these authorities for departmental or criminal action against a delinquent police officer would be binding, as per the court. An independent appointment mechanism for the members deciding complaints was also provided.

The court noted that the National Police Commission had, in its first report in February 1979, dealt with the modalities for inquiries into complaints of police misconduct to be conducted in a manner that was credible, fair and impartial. Yet, these and various other recommendations made across eight reports of the National Police Commission were not implemented, forcing the Supreme Court’s hand to issue binding directions till appropriate legislations were passed by states.

Certain other directions for police reforms were also passed, as summarised here.

Police resort to lathi charge to break up a rally in Asansol, West Bengal, on July 5, 2019. Credit: IANS

Weak implementation

However, the directions of the Supreme Court have fallen on deaf ears. The Justice Thomas Committee appointed by the Supreme Court for monitoring compliance with the Prakash Singh judgement expressed dismay in its 2010 report over the total indifference exhibited by the states. In 2013, the Justice Verma Committee, constituted after the Nirbhaya gangrape, also noted such non-compliance in its report and urged all states to fully comply with the top court’s directives so as to tackle systemic problems in policing.

More recently, data as on August 01, 2016 in a NITI Aayog document on police reforms in India betrays that precious little has been done to comply with the binding directions contained in the Prakash Singh decision, nearly a decade after the top court’s judgement. Only 17 states had passed legislations to amend the police statutes; this had not been done in 11 states, all the Union Territories and Delhi. In some of the states where there was no legislation, Police Complaints Authorities were constituted by way of government notifications. However, their composition in almost all states was at variance with the decision of the Supreme Court.

Moreover, the recommendations of the Authorities were not binding in almost all states, contrary to the top court’s directive. The document also reveals that Bihar and Madhya Pradesh had not constituted state-level authorities, while Uttar Pradesh and Jammu and Kashmir had not done so either at the state or district levels. Odisha sought to vest the powers of the state authority in the Lokayukta and had failed to constitute the authority at the district level. This was also the case in various other states.

Keeping in mind that the numbers of custodial deaths in Uttar Pradesh were the highest in the country between April 2017 to February 2018, the continued failure to constitute these authorities in India’s most populous states is worrisome. Moreover, considering that the authority, as envisaged by the Supreme Court, was to be an independent one whose recommendations were binding, these deviations convert legal reforms into mere dead letters of the law.

The ground reality in states such as Maharashtra, where Police Complaints Authorities have been constituted, is also dismal. The authority was notified in 2013 but became functional only in February 2017. Its recommendations may not be followed. The Authority has not heard any cases since January. Out of six divisional Authorities, only two at Pune and Nashik are operational.

Thus, it is vital for states to implement the Supreme Court’s directions in letter and spirit. Additional instances of violations as well as lapses by the police – including unjustified recourse to lathis, dereliction of duty at times of mob lynching, parading of arrested persons in handcuffs, video recording public shaming of alleged violators by the police and circulation of such videos on social media – should also be included within the list of complaints that can be dealt with by the authorities.

On its part, the Centre must ensure that appropriate legislation is passed for the Union Territories. The creation of a central authority similar to the Police Complaints Authority to look into complaints against central police forces, such as the Central Reserve Police Force and Railway Protection Force, is also needed.

It must be remembered that almost 80 migrants lost their lives on the Shramik Special trains between May 9 and May 27. Creating such an authority will enable the victims of similar incidents or their relatives to voice any of their grievances against the central police forces.

The United States’ experience shows that policing a public which has scant confidence in the police forces has deleterious effects. As Joshua Aston noted in his recent treatise, Torture Behind Bars, the conduct and duty of police officers “must conform to the law of the land, respect basic human freedom, and obey as well as maintain law and order in the country”. The carte blanche enjoyed by the police forces under colonial legislations must be urgently attenuated by modern reforms so that only the rule of law prevails, not the rule by force.

Rohan Deshpande is a practicing advocate based in Mumbai. You can follow him on Twitter here.