Unfettered Powers of Police and Need for Reforms
Introduction Police are a standout amongst the most pervasive associations of the general public. The policemen, accordingly, happen to be the most obvious delegates of the administration. In an hour of need, threat, emergency and trouble, when a citizen does not know, what to do and whom to approach, the police headquarters and a policeman happen to be… Read More »
Introduction
Police are a standout amongst the most pervasive associations of the general public. The policemen, accordingly, happen to be the most obvious delegates of the administration. In an hour of need, threat, emergency and trouble, when a citizen does not know, what to do and whom to approach, the police headquarters and a policeman happen to be the most fitting and receptive unit and individual for him.
Their working style, the part they play in society and obligations to the general public are manifold and diverse from one perspective; and muddled, convoluted and complex from the other. Comprehensively the dual role, which the police are relied upon to play in the general public are abidance to law and maintaining public order.
Be that as it may, the consequences of these two obligations are various, which bring about making a substantial stock of obligations and duties of the police association.[1]
Consistently issues have been raised about the resoluteness, casual captures, unlawful detainment, torment of suspects, tampering of FIRs, tampering with evidence, bad conduct with protestations, disregard of obligation and wastefulness among others.
Police have wildly abused the vast and unfettered powers given to them, under political influence and different superfluous reasons, completely ignoring the duties that come along with such powers, their morals, social qualities and standards. [2]
The policemen have powers to capture the freedom of a person by the way of arrest, to violate the right to privacy by the way of searches and cross-examination of suspects. They also have this enormous power to infringe the right to life of a person by the way of using forces that are deadly in nature if and when required.
Since it would not be fair to expect the body making legislation to imagine all the possible situations that policemen may encounter and make laws perfectly for those situations, it is the duty of police officers to use the powers given to them wisely and responsibly. As the nature of powers given to them restricts the fundamental rights of a person if misused, any arbitrary use of power by them would lead to human rights violation.[3]
The current study is prepared to analyze the effectiveness of the police, in circumstances where policemen are found to be in dereliction of their duty, and the cause of such dereliction.
Powers of Arrest Under Section 41 to 60
The general powers of arrest are given to the police in Section 41 to 60 under Chapter V of the CrPC. These Sections portray the circumstances under which a policeman may capture any national without the magistrate’s giving him/her a warrant to do so. As the dialect and development of the proviso proposes, the law has left the assurance of the justification for making arrest altogether to the prudence of the policeman if the case is within the ambit of the circumstances counted under these sections of the act.
Even the terms like “reasonable suspicion” have not been defined and are left upon the whims and fancies of police officers. Further, a police officer has been given powers to arrest even in cases where there hasn’t been any formal complaint filed by any citizen. This unfettered power which can be used on the discretion of the police officer must not be utilized in bailable offences except if the police officer genuinely has a reasonable doubt or soundproof of the commission of an offence.
The power has been translated to be practised in such situations where the acquiring of a warrant from a Magistrate would include pointless postponement which may invalidate the point of capturing the individual. The powers have been given in CrPC in such a way that no scope for the judiciary to interfere is left.[4]
Misuse of Powers
Police abuse its powers in various form, unlawful arrest, custodial death, refusal to file FIR, fake encounter, etc are some basic and common forms of brutality committed by the police officers.
Custodial Violence
Police ruthlessness, torment, brutality and abuses have for some time been known all across India. Torture in police custody takes place every now and again when individuals associated with committing a crime are investigated by the police.
Despite the fact that the apex court in the case of D.K. Basu v. State of West Bengal[5] stated that custodial violence and use of torture is prohibited and violation of article 21, custodial deaths and torture of suspects to extract a confession is growing. Use of third-degree torture to know about suspect’s accomplices is a gross misuse of power. Police must confine to the scientific interrogation techniques prescribed under the law.
Custodial Rape
An individual is said to be in ‘custody’ when the said person is under the protection, superintendence and authority of someone else or an organisation such as the police, known as custodian.
Typically, the overseer has a flat out or a high level of authority over the individual, including his/her portability, freedom, nourishment and water, contact with the outside world, etc. With such powers over another person’s freedom also comes the utmost responsibilities of his/her safekeeping on the so-called custodian.
Rape of the person in such custody by the custodian himself/herself, under such conditions, is an unmistakably gross infringement of rights and laws, since the attacker exploits his situation of power over the person in custody, violating the body of the victim as well as the obligation of protection of the person in custody. Arrest by police officers, police lockups, army camps, prisons can be listed as examples of custody.[6]
During the emergency, when there was no leash on the police officers the number of custodial rapes saw a high surge. Mathura rape case in the state of Maharashtra in the year 1974, Maya Tyagi Rape case (1980) in the State of U.P. where the maximum number of custodial rape cases take place, Dalit women rape case in Churu, a small city in Rajasthan, etc. are some of the widely known examples of the atrocities committed by police officers in custody.[7]
Fake Encounters
Right to self-defence is given to everyone, but misusing that right and killing a suspect even when there exists no threat to life is known as a fake encounter. This line between fake and genuine encounter is often ignored by the police officers and often the fake encounters are reported as genuine due to lack of accountability and the enormous powers wielded by the police officers.
According to the National Human Rights Commission, a total of 1,782 cases of the fake encounter were registered during 2000-2017 out of which 217 are still pending.[8]
If it is indeed proved that the encounter was fake some compensation should be given to the families of the victim. The protection of Human Rights Act, 1993 in its section 18 provides the provision for compensation to families of the victim. Along with compensation interim relief or damages may also be granted to them.[9]
Refusal to Register First Information Report
Policemen are frequently disposed of not to enlist cases by virtue of weight from political parties who are quick to demonstrate that the peace circumstance in their states isn’t terrible. A considerable lot of the incidents of such non-enlistment of cases take place within the minority communities, for example, the Scheduled Castes and Tribes.
Victims of wrongdoing, who are poor, are frequently unfit to acquire police help. They can’t bear to pay the bribes that the police demands for the enlistment of cases or for the cost of examination that the victims are required to pay for the police.
Even if they do manage to get their complaint registered somehow, they are often harassed by the police officers or no action is taken with respect to that complaint. This tarnishes the image that an institution like police holds. People start to fear and avoid police officers instead of approaching them as and when they need their help.
Need For Reforms
Due to the various problems discussed in the previous headings, there is a need to bring an overhaul in the police system of India. There is a need for reform in the whole system of police in order to ensure that these malpractices by the officers are eliminated or reduced to a minimum. Few basic changes can be formation of anti-corruption cells, the imposition of punishment on officers found guilty of corruption, the introduction of vigilance commission and ombudsman, etc.[10]
Some of the reforms that can be considered are as follows –
1. Autonomy from Political Interference
According to the existing laws, the appointment of Director General or Inspector general is in the hands chief minister because his tenure is at the pleasure of Chief Minister.
The head of police can be removed at any time without any reasons from his/her post at the will of Chief Minister. Therefore it is only natural that the police force will have a lot of influence from the ruling party or the chief minister of that state, which further affects access to justice and police becomes the puppet of politically elite parties. Appointment and tenure of a police officer should be on his or her merits and not at the pleasure of chief minister.
2. Accountability of Police Officers
Due to the rampant misuse of powers by police, the public has lost their belief in the police force. People fear the police instead of feeling safe in their presence. However, this perspective needs to be changed. In order to do so, the police should be made accountable for their actions and use of powers.
Along with the enormous powers given to the police, there is a need for the element of accountability because “With great powers comes great responsibilities”. This can be done by the establishment of independent complaint body, regular evaluation of the performance of police officers, etc.
3. Offences by Policemen
Section 132 and 197 of the code of criminal procedure provides immunity to public servants from prosecution for the acts done in the course of performing their duties. The national police commission in its 8th report recommended removal of this protection for the misdeeds of police officers in the name of performing their duties. Punishment should be given instead of protection to those officers who misuse their powers.
Conclusion
Police malpractice has turned into a major issue of concern affecting all of us. Truth be told, by and large, a resident who moves toward becoming a casualty of police wrongdoing or brutality does not approach the police in view of their dread and doubt towards them, and thus numerous crimes go unreported, especially the less extraordinary ones and casualties from minorities section in the general public.
It is disheartening to uncover that police misdemeanour is expanding because of a lack of accountability, enormous powers given to them, the political weight on the police authorities makes them degenerate, unscrupulous and wasteful.
To deal with the existing loopholes in the system and the unfettered powers of the police, we recommend that instead of overhauling the complete system and the Code, efforts should be first made to sensitize the police personnel and the concept of friendly policing should be adopted and interaction sessions with the public should be organized. Also, in addition to it, an ombudsman like structure suggested by the Supreme Court should be readily created and should have an independent functioning.
Also, a tribunal-like structure for a speedy and efficacious remedy against police excesses should be created with the power of binding decisions. The police should be made more accountable and the processes should be more transparent. Further, the Police Acts should with immediate effect be amended and be made more civil-friendly.
Authored by: Kaushal Jaisalmeria
West Bengal National University of Juridical Sciences (WBNUJS)
References
[1] Bprd.nic.in, Available Here (last visited Sep 30, 2019).
[2] iPleaders. (2017). Remedies Against Illegal Police Action in India. [online] Available here (last visited Sep 10, 2019).
[3] Hindustan Times (2016). Abuses by police forces major rights problem in India: US. [online] Available at: Available Here (last visited Sep 10, 2019).
[4] Police Discretion Within Criminal Procedure, Lawteacher.net, Available Here (last visited Oct 3, 2019).
[5] D.K. Basu v. State of West Bengal, 1997 1 SCC 416.
[6] Sahar Bhog, What Is Custodial Rape And Why We Need To Be Discussing It Feminism In India (2019), Available Here (last visited Oct 21, 2019).
[7] Id.
[8] Falguni Rao, NHRC registered 1,782 fake encounter cases between 2000-2017; Uttar Pradesh alone accounts for 44.55% – Firstpost Firstpost (2018), Available Here (last visited Oct 20, 2019).
[9] Id.
[10] Id.