DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

2020-2021

HUMAN RIGHTS LAW PROJECT

TOPIC: POLICE BRUTALITY-A LEGAL PERPECTIVE

SUBMITTED BY: SUBMITTED TO:

“MEGHA GUPTA: “Dr. ABDULLAH NASIR “

“ROLL NO: 81 “ “ASSISTANT PROF. (LAW) “

“SECTION ‘A’ “ DR. RMLNLU

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Contents
INTRODUCTION………………………………………………………………………………………………….3

LAWS AGAINST POLICE BRUTALITY IN INDIA………………………………………………………4

JUDICIAL PRONOUNCEMENTS……………………………………………………………………………5

RECOURSE AGAINST POLICE BRUTALITY…………………………………………………………….8

INTERNATIONAL LAW………………………………………………………………………………………..9

CONCLUSION……………………………………………………………………………………………………..10

BIBLIOGRAPHY……………………………………………………………………………………………………11

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INTRODUCTION

Recently, the death of George Floyd took the whole country of the United States by a storm. It
sparked outrage across all fifty states in the US and various countries around the world. George
Floyd’s death was a result of a police officer kneeling down on his neck for a duration of eight
minutes-a classic case of police brutality.
However, his death brought to forefront the discussion of police brutality in many countries.
Recently, India has also witnessed two major incidents regarding the same-the Palghar lynching
and the custodial death of a father and son duo-Jayaraj and Bennicks by the police in the state of
Tamil Nadu.
In the case of Palghar lynching in Maharashtra, two ascetics and their driver were killed by a mob
in the wee hours of night. A video of the incident soon surfaced online which showed that while
the mob gathered around the two old ascetics while threatening to kill them. The role of the police
came into question when the video clearly showed two police personnel present at the scene at the
time of the incident, however did nothing to deter the mob or stop them in any way.
While the state police did come into action when the incident came into the public eye and hundreds
were arrested out of the suspected 300-400, the inaction of the two officers who did nothing during
the commission of the crime raised many questions on the conduct of the officers and whether their
inaction to do anything to help those who they were responsible to safeguard could be considered
not only irresponsibility but also police brutality.
In another incident, a father-son duo named Jayaraj and Bennicks were arrested by the state police
in Tamil Nadu and brutally assaulted by them which led to their death. The family of the two
claimed that their blood soaked clothes were returned to the family thrice and fresh clothes were
asked for.

Initially this incident couldn’t gain much limelight across the nation due to the language barrier
between the north and south India. Over time, a lot of videos surfaced online explaining the
condition of the two, which caused an uproar across the nation.
These incidents are just two recent examples of police brutality in India but have forced us to
introspect regarding our reaction to police brutality as a nation.

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LAWS AGAINST POLICE BRUTALITY IN INDIA
There are various laws in the constitution of India and the Code of Criminal Procedure which are
aimed are discouraging police brutality towards the general public.
Some of them are listed below:

Section 41 of CrPC
It states that there can be no legal arrest if there is no information or reasonable suspicion that the
person has been involved in a cognizable offence or commits an offence (s)

Section 46 of CrPC
It states the mode of the arrest. Only a female officer can arrest a female arrestee. Further, a
woman cannot be arrested after 6 pm and before 6 am, except in exceptional circumstances.

Section 49 of CrPC
It states that there should be no more restraint than is justly necessary to prevent escape.

Section 50(1) CrPC

It highlights that the individual arrested by a police officer has the legal right to know the
grounds of the arrest.

Section 50(2) CrPC

It states that any person arrested without a warrant must be immediately informed of the grounds
of his arrest. Further, the police must inform him/her regarding the right to bail.

Section 51 of CrPC
This section allows a police officer to search the arrested persons. With regard to this, Article
20(3) of the Constitution of India guarantees the accused against self-incriminating testimonial
compulsion.

Section 54 of CrPC
It states compulsory medical examination by a medical officer of an arrested person. Only a
female medical officer is allowed to examine a female arrestee.

Section 57 of CrPC
The police cannot detain a person for more than 24 hours. A competent magistrate must evaluate
the case of the accused individual with the least delay.

Art 22(1) of the Constitution of India

An arrested person shall have the right to consult and to be defended by a counsel of his choice.
Further, the police must inform the accused of the legal aid facilities available.

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JUDICIAL PRONOUNCEMENTS AGAINSTPOLICE BRUTALITY

Police brutality is an example of violation of civil rights, where an officer misuses his power and
tortures an individual with a force that is much higher than what is required. This has resulted in
various custodial deaths, the record of which is still to be found and to be produced before law.
The case of Nilabati Behra v/s State of Orissa & Ors. [(1993(2) SCC 746] is a glaring example
of death caused by police brutality. In this particular case the state was held liable and was
directed to pay compensation to the appellant. This brutal act of police was regarded as a gross
violation of the rights enshrined in Article 21 of the Indian Constitution.

Police brutality also includes negligence on the part of police officers. It is the duty of police to
provide proper and reasonable care to every person in his custody immaterial of the fact that he is
guilty or innocent. Unnecessary harassment to the person in custody or to any person in general
is not accepted and is highly disregarded. Even the person in lock up should be dealt by the
police in accordance with the power confirmed on it but not in any way they want. Police
officials should refrain from taking action which are prohibited by law and does not fall part of it.
In Saheli v/s Union of India [AIR 1990 SC 513], the Supreme Court of India awarded Rs.
75,000 as damages to the mother of the child who died as a result of police beating.

The Supreme Court in series of judgments held the state responsible for police misconduct or
abuse of power. It was also held that the doctrine of sovereign immunity cannot be used as a tool
for defense in public law, making pecuniary compensation as the golden remedy for violation of
fundamental rights. The Supreme Court in Bhim Singh Versus State of J & K. [(1985) 4
SCC 677; AIR 1986 SC 494], directed the State Government to pay a compensation of Rs
50,000 for illegal arrest and detention of Bhim Singh by the police in order to prevent him from
attending the Assembly Session.

In D.K Basu v/s State of West Bengal, [(1997) 1 SCC 416; AIR 1997 SC 610] the Court has
laid down detailed guidelines to be followed by the police at the time of arrest and detention.

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The police personnel carrying out the arrest and handling the interrogation of the arrestee should
bear accurate, visible and clear identification and name tags with their designations. The
particulars of all such police personnel who handle interrogation of the arrestee must be recorded
in a register.That the police officer carrying out the arrest of the arrestee shall prepare a memo of
arrest at the time of arrest and such memo shall be attested by at least one witness, who may be
either a member of the family of the arrestee or a respectable person of the locality from where
the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and
date of arrest.A person who has been arrested or detained and is being held in custody in a police
station or interrogation center or other lock-up, shall be entitled to have one friend or relative or
other person known to him or having interest in his welfare being informed, as soon as
practicable, that he has been arrested an is being detained at the particular place, unless the
attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.The
time, place of arrest and venue of custody of an arrestee must be notified by the police where the
next friend or relative of the arrestee fives outside the district or town through the Legal Aid
Organization in the District and the police station of the area concerned telegraphically within a
period of 8 to 12 hours after the arrest.The person arrested must be made aware of this right to
have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

An entry must be made in the diary at the place of detention regarding the arrest of the person
which shall also disclose the name of the next friend of the person who has been informed of the
arrest and the names and particulars of the, police officials in whose custody the arrestee is.The
arrestee should, where he so requests, be also examined at the time of his arrest and major and
minor injuries, if any present on his/her bed, must be recorded at that time.“Inspection Memo”
must be signed both by the arrestee and the police officer effecting the arrest and its copy
provided to the arrestee. The arrestee should be subjected to medical examination by a trained
doctor every 48 hours during his detention in custody by a doctor on the panel of approved
doctors appointed by Director, health Services of the concerned state or union territory. Director,
Health Services should prepare such a penal for all tehsils and districts as well.

The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the
interrogation. A police control room should be provided at all district and state headquarters,
where information regarding the arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the
police control room it should be displayed on conspicuous notice board.

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In Prakash Kadam v. Ramprasad Vishwanath Gupta and Anr., the Supreme Court had held that
police officers involved in fake encounters are liable for death penalty, treating it as “rarest of
rare” cases.

In K.S.R Dev. v. State of Rajasthan it was stated that the fundamental rights as envisaged under
Article 14, Article 19, and Article 21 of the Constitution does not end even in imprisoned. Thus,
the state must ensure its duty of treating prisoners with humanity.

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RECOURCES AGAINST POLICE BRUTALITY
Most of the state police are governed by the state legislations. On paper, there are various resources
available to a person who is a victim of police brutality. However, in practice, usually these
methods are lengthy and faulty and don’t end up punishing the officers involved.
There are various options available in cases of police brutality: a case may be filed under the Indian
Penal Code against the concerned officers; the victim may approach the High Court or the Supreme
Court, citing a violation of his or her fundamental rights. The victims may also approach the
National Human Rights Commission or the State Human Rights Commission regarding the cases
of police brutality.
However, these measures are insufficient and half-baked, at best. Approaching the High Courts
or the Supreme Court is a time consuming method and often requires a lot of money. This often
acts as a deterrent for the poor who are victims of police brutality.
If one does approach the National Human Rights Commission or the State Human Rights
Commission, their decisions are not binding on the government and ergo on the state police.
Similarly, if one chooses to take the recourse of filing a complaint under the Indian Penal Code,
there is no provision of an independent investigation being conducted. As a result, either the
complaints are not filed or the investigations is biased and no punishment is meted out to the
officers accused.
The courts often take up suo moto cognizance in certain cases of police brutality. However, more
often than not, this happens only in cases which are brought in the limelight by the media and the
public. Many cases of police brutality go unaccounted for.

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INTERNATIONAL LAWS AGAINST POLICE BRUTALITY
International human rights law lays down a uniform standard of rights which are equally available
to every person, regardless of their race, gender, nationality, religion, or any other status. Most of
these basic rights are contained in the Universal Declaration of Human Rights, the parent document
for subsequent human rights treaties and conventions. International human rights standards require
policing to be carried out in conformity with utmost respect for the human rights of alleged suspects
or offenders.
However, it is notable that though India has signed The Convention Against Torture and Other
Cruel, Inhuman and Degrading Treatment or Punishment also known as The United Nations
Convention Against Torture, it has still not been ratified.
The Convention needs nations to take effective steps to prevent torture in any territory under their
jurisdiction and forbids them to send citizens to any country where they believe that transported
persons may be tortured.
India can only claim to be a truly free and lawful nation after curbing down on police brutality and
giving people their basic rights.

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CONCLUSION
In 2006, the Supreme Court tried to remedy the situation via a judgement passed in the case of
Prakash Singh v. Union of India. The court stated various reforms which included setting up of
independent authorities for the redressal of complaints against police officers. 1 However, this did
not yield fruitful results and even today, not all states have complied with the given directives
completely.
The need of the hour is to have a comprehensive legislation regarding the same. A legislation which
defines the exact perimeters of police brutality, sets up a comprehensive, independent and a public
friendly redressal authority regarding the complaints and the punishment for the same, if
convicted. It is also necessary to ratify the Human Rights treaty so as to create a sense of
international obligation to avoid police brutality and give human rights.
On the other hand, in my personal opinion, to make the police more public friendly and to reduce
the cases of police brutality , to begin with, the officers need to have a basic knowledge of
psychology so that they are more compassionate towards people and know where to draw the line
and realize where the treatment meted by them to the victims of police brutality is out of proportion
to the crime of the accused or the danger that the police officers assume themselves to be in(in
cases of lathi-charge and the like).
Cases of police brutality have time and again shook the nation but have been unable to gather
enough momentum so as to change the system. Police brutality is a direct result of the misuse of
power given to the police officers to safeguard themselves and the public, at large. It is important
that a legislation is formed regarding police brutality so as to make the police realize that a
subjective and out of proportion use of force against people , innocent or otherwise, is unacceptable
in a democratic nation and goes against the very ethos of the same.

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BIBLIOGRAPHY

Code of Criminal Procedure Constitution

of India
https://www.thequint.com/voices/opinion/jeyaraj-beniks-tamil-nadu-custodial-deaths-
policebrutality-indian-judiciary-international-law-torture
https://blog.finology.in/Legal-news/police-brutality-in-india https://www.iralr.in/post/extrajudicial-
killings-in-india-a-threat-to-the-rule-of-law https://www.hrw.org/news/2016/12/19/india-killings-police-
custody-go-unpunished

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