Jayaraj-Fenix custodial deaths: Policing powers are sovereign powers; privilege and lack of accountability narrows scope for victims

Recent protests across the United States of America galvanised by the killing of George Floyd by a police officer has put the spotlight on the issues of excessive use of force by law enforcement agencies. In the United States, there have been discussions to do away with the armour shield of ‘qualified immunity’ – a legal defence created by the judiciary that hinders civil lawsuits against police officers who violate rights of individuals. This inflection point must be seen as an opportunity to reflect upon India’s fault lines in policing, where police brutality occurs rampantly along the lines of caste, religion, gender and financial status. The recent death of a father and son due to alleged custodial torture by the Tamil Nadu police has reverberated the cries to end unjust incarceration and institutional culture of police brutality in India. There exist multiple impediments for victims of police brutality to avail remedies in law for seeking compensation and holding the police accountable for violation of individual rights. Law enforcement agencies have a central bearing in the criminal justice system. They have the power to advance or forestall truth and justice. Policing powers are sovereign powers and must be exercised with caution. The faith reposed by the citizens in its police is a reflection of the State’s effectiveness in not only curtailing the spread of crime but also its commitment to the protection of individual liberty. Since its inception, the Indian police was structured to secure the interests of the colonists rather than to serve the interests of the public. The police often resort to physical violence as an investigation tactic and also as a deterrent for those in custody from committing crimes in the future. Such an attitude downplays the violation of both constitutional and basic human rights arising out of illegal police actions such as arbitrary arrests, unlawful detention, torture and custodial violence.

Any violence by the State against the individual is a naked violation of human dignity, which destroys to a considerable extent, the individual’s personality. Victims of custodial violence and their family members should have a way to be compensated for the pain and suffering inflicted upon them.

Whenever police actions have led to the infringement of fundamental rights, the Indian courts have awarded monetary compensation as a public law remedy. Courts have consistently rejected the doctrine of sovereign immunity – a defence that the State can never be prosecuted for its wrongdoings, in cases where there is incontrovertible evidence of a violation of one’s right to life. The liability of the compensation is fastened on the State rather than the police officer. The remedy for compensation is in addition to the claim available in private law for damages for tortious acts of public servants. However, in most cases, victims of systematic prejudice and oppression are the poor and socially marginalised who do not have the knowledge or legal assistance to pursue the cause of justice.

One of the first impediments crime victims face is when the police refuse to file an FIR against one of their own due to the bonhomie between members of the police. The model of ‘going to the police station’ to lodge a complaint instead of the police coming to your doorstep creates an equation imbalance, where often the victim is forced to visit the very station where the abuse occurred or interact with the offending officer.

As a result, victims become more reclusive, and crimes committed by police personnel often go unreported, and culprits remain unpunished. Even if one gets the FIR registered, procedural delays, biased investigations and lengthy trials act as an obstacle in access to securing justice. This is evident from the 2018 statistics of the National Crime Records Bureau, where out of a total of 5,479 cases registered against police personnel across India only 41 were convicted in 2018. Another impediment is Section 197 of the Code of Criminal Procedure 1973 that grants the privilege of immunity to police personnel from prosecution without prior sanction from concerned authorities. This ensures that the police can carry out their duties without the fear of frivolous cases being filed against them. Such protection is available only when the alleged act done by the police personnel is integrally connected with the discharge of its official duties. Misuse and abuse of powers vested in a police officer or acts done purely in a private capacity can never be said to be part of official duties and will not be covered under the protective umbrella of the provision. In effect, no prior sanction is required from the government for prosecution of a police officer who engages in unruly behaviour, maltreatment, bribery, custodial violence, fraud, fabrication of records, adducing false evidence and shielding a person from punishment.

It can be argued that the bar of prior sanction narrows the scope for victims and families of police brutality to seek justice and instead encourages police misconduct. However, eliminating the requirement of prior sanction is not going to be a fail-safe solution to police misconduct. Implementation of directions issued by the Supreme Court in landmark cases of D K Basu and Prakash Singh concerning functioning of the police across states needs to be constantly monitored. There is an urgent need for investment in training, equipment and infrastructure to reduce the pressure on law enforcement agencies.

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The need of the hour is to fundamentally rethink the approach to policing culture in India. The focus should be to shift from a policing culture that instils constant fear in public to one that is centred around the notion of public service. It is not only law and institutions that do justice. People do. Therefore, law enforcers should be not only conscientious and rule conforming, but also compassionate humans. There needs to be increased focus on rights-respecting policing and ensuring frequent prosecution of errant police officers, without exception. The standard of what categorises as ‘violence’ cannot be separate for an ordinary citizen and a police officer. Effective use of independent internal accountability measures can be a deterrent against the misuse of power by the police authorities. An online database of pending cases involving allegations of police abuse with names and the charges against each police officer must be created. All internal departmental proceedings involving severe charges must be resolved on a fast-track basis and made available to the public. All such measures to hold police officers accountable will build trust amongst citizens and send a strong signal to each officer reminding them that those who do not toe the line of law will face strict action. Sarthak Karol is a judicial law clerk at the Supreme Court of India and Janay Jain is a law student at the Government Law College in Mumbai. Views are personal.