Winy Daigavane, a fourth-year B.A. LLB. (Hons.) Student at the National University of Advanced Legal Studies in Kochi, Ind, discusses the need for a presumption of custodial violence in India...
India has seen severity in law enforcement from the early Vedic period. Even after almost 160 years of the enactment of the 1860 Indian Penal Code and the 1861 Indian Police Act, violence by the police continues. From the shocking Mathura Rape Case in police custody to the recent killing of Jayaraj and Bennix in Tamil Nadu by police officers, police brutality in India has existed in various forms since time immemorial. A number of pertinent instances have come to light this year, including the Uttar Pradesh Police’s violent actions against anti-Citizenship Amendment Act protests, and actions in furtherance of violation of lockdown restrictions against people as well as essential service providers. This highlights the extensive practice of police brutality in India.
This article will analyze the need for a presumption of custodial violence as a measure to confront the growing menace of police brutality. It will attempt to establish that, although police brutality does not operate in a complete legal vacuum, the aforesaid need crops up due to issues of implementation and enforcement.
Liability can be attributed to the police officials under public law, criminal law, and tort law. Article 21 of the Indian Constitution acts as a source of the public law liability of police officials, as laid down by the Supreme Court (SC) in the landmark judgments of Rudul Sah v. State of Bihar, Bhim Singh v. State of Jammu and Kashmir, and Nilabati Behara v. State of Orissa. However, to avoid misuse of such provisions, the SC has also laid down in Sube Singh v. State of Haryana that standard of proof for proving such police brutality is high, and only in cases of patent violation of fundamental rights can this remedy be availed.
Sections 197 and 132 of the Code of Criminal Procedure, 1973 (CrPC) protect public servants from vexatious litigation, as highlighted in the case of Jaysingh Wadhu Singh v. State of Maharashtra, provided that the accused police officer satisfactorily shows that the alleged crime had a direct nexus with the performance of an official duty. Since actions violative of the fundamental rights fall outside the course of official duties, the aforesaid provisions would not protect the official from actions against police brutality.
Finally, remedy for police misconduct is also available under tort law by filing a civil suit for compensation. However, sovereign immunity is often availed as a defense.
Although the aforesaid discussion highlights that police officials are not operating under a legal vacuum, there is no specific law catering to the prevention of custodial violence. Irrespective of the existence of laws governing police accountability, the issues concern the insufficient implementation of such provisions, coupled with a lack of sensitization. Reports suggest that police officers often misuse the legal framework by not permitting a complaint/FIR to be filed in the first instance. Moreover, police officials are not sufficiently trained to handle violent situations and challenges to their authority. With the Indian law granting extraordinary and discretionary powers of arrest to the police officials, sufficient sensitization about the extent and scope of such powers is also essential. Similarly, necessary and adequate sensitization of the Indian masses is essential to make them aware of their fundamental rights and the legal recourse available for them to take actions against authorities depriving them of such rights. The burden on the judiciary is also another disincentivizing factor for the masses, and a solution to the same also has to be worked out.
Irrespective of the availability of a legal framework, statistics highlight that from April 2017 to February 2018, 1,647 custodial deaths were recorded in India. This implies that five custodial deaths took place every day during this period. These staggering numbers highlight a blatant knot in the legal framework that needs to be untangled, thus, giving rise to the need for legislative reform.
In the landmark case of State of Uttar Pradesh v. Ram Sagar Yadav, the SC recommended an amendment to the evidence law to place the burden of proof on police in cases of custodial violence. Consequentially, the Law Commission of India gave its report on similar lines. Further, the Indian Evidence (Amendment) Bill, 2016, passed by the Lok Sabha to introduce the “Presumption in prosecution of custodian death or injury” in the form of Section 114B of the Indian Evidence Act, has not yet been approved by the Rajya Sabha. The bill gave due regard to essential factors including the period of custody, any admissible statement by the victim on the cause of injury, evidence of the medical practitioner, and evidence of the magistrate, who might have a record of the victim’s statement.
An amendment in furtherance of the same would be a welcome move, owing to the rising custodial deaths and the approach of the police officials towards the present legal framework. There have been various instances, as aforementioned, when police officials attempt to bypass the safeguards and misuse the powers vested in them. While the SC directed the police stations to be under CCTV surveillance to ensure the minimization of such activities, police officials have also attempted to tamper with this evidence by switching off cameras. By having a presumption in place, an attempt to curb such incidents can be made because of the added pressure on the police.
It must not be forgotten that the ethos of the democratic Indian society is that the law enforcement agencies are for the benefit of the people and not vice versa. It is imperative to subside the growing tensions between the need for safeguards by the police and from the police. Both order and liberty are essential, and when this balance is displaced, a need for legislative intervention arises. To resolve this growing crisis and to bring the population to par with the police officials with respect to the power and knowledge that they wield, sufficient sensitization of both the police as well as the people, coupled with the need for a presumption of custodial violence, is crucial.
Winy Daigavane is a fourth-year B.A. LLB. (Hons.) Student at the National University of Advanced Legal Studies, Kochi India.
Suggested citation: Winy Daigavane, Presumption of Custodial Violence: A Need to Confront Police Brutality in India with Legislation, JURIST – Student Commentary, July 13, 2020, https://www.jurist.org/commentary/2020/07/winy-daigavane-custodial-violence/.
This article was prepared for publication by Cassandra Maas, a JURIST staff editor. Please direct any questions or comments to her at firstname.lastname@example.org
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