ARTICLE 21 IN LIGHT OF POLICE ATROCITIES

By Manas Upadhyay, Semester IV, National Law University Jodhpur

TABLE OF CONTENTS

INTRODUCTION……………………………………………………01

POLICE ATROCITIES……………………………………………..02

PAST OBSERVATIONS OF THE COURT……………………….03

RECENT SUPREME COURT JUDGMENTS…………………….04

 Sumit Kumar v. State of Bihar …………………………05

 Mohd. Hakim vs State (NCT of Delhi)………………….06
 Kharak Singh v State Of UP……………………………07

CONCLUSION…………….………………………..……………….09

INTRODUCTION

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Article 21 of the Constitution of India, 1950 elucidates upon the Right to life and
personal liberty and reads as, “No one shall be deprived of his right to life and
personal liberty except according to the procedure established by law.”

The essential term here is the “except according to the procedure established by
law.” Now, in the context of American Jurisdiction, due process of law is followed
wherein Substantive as well as Procedure due process is there. This means that the
Courts of America, while adjudicating upon a particular case, can go beyond the
jurisdiction. The same cannot be followed in the Indian Judicial System, so we
follow the procedure established by law

The provision encapsulates the Right to Life and Liberty which relates to Dignity
and going beyond basic animal existence.

The courts also have successfully interpreted different cases in order to establish
socio-economic and cultural right under the umbrella of Article 21 such as – Right
to Clean Air, Right to Clean Water, Right to freedom from Noise Pollution,
Speedy Trial, Legal Aid, Right to Livelihood, Right to Food, Right to Medical
Care, Right to Clean Environment, etc.as a part of Right to Life & Personal liberty.

The right to live is without a doubt the most basic of all rights. All other rights
enhance the quality of life in question and rely on the presence of life itself to
function. Because human rights can only be attached to living beings, one may
anticipate the right to life to be primary because without it, none of the other rights
would have any worth or utility. If Article 21 had been interpreted in its original
sense, there would have been no Fundamental Rights stemming further.

POLICE ATROCITIES

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Honorable Chief Justice N.V. Ramana once opined, “The threat to human rights
and bodily integrity are the highest in police stations. Custodial torture and other
police atrocities are problems which still prevail in our society.”

In India, police abuse and violence have become commonplace, with little being
done to hold officers accountable. Unjustified encounter killings and other
instances of illegal police behaviour deprive suspects of their fundamental right to
life and the right to a fair trial and are in breach of legal and constitutional laws.

Cases such as custodial deaths, extra-judicial killings, torture, and violence against
protesters, are all illustrations of this form of brutality. The custodial death of the
father-son duo in Tamil Nadu last year, violence against civilians, migrant workers
and essential service providers during the lockdown that led to many deaths and
the attack on the students of Jamia Millia Islamia during the anti-Citizenship
(Amendment) Act protests in 2019 are a few examples.

According to the National Human Rights Commission (NHRC), as many as 1,723

persons died in judicial custody and police custody across India in 2019 alone,
with an average of 5 deaths per day.

The police use inhumane, cruel, and barbarous tactics of torture that fall neatly
under the definition of third-degree torture. These aren't isolated instances of police
violence; they appear to be part of the police administration apparatus and have
become all too common in society. This is the very reason why the Legislator
stated that any confession made to the police is not admissible in the Court 1, as per
Indian Evidence Act, 1872.

Constitutional provisions such as Article 21, which guarantees the right to life and
personal liberty, with a fiat that the State cannot act against an individual in
1
Section 24 of the Indian Evidence Act, 1872
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violation of the ‘procedure established by law’, and Article 22 read with Section
303 of the CrPC, which grants every accused person the right to an advocate, also
stand violated in cases of fake police encounters.

PAST OBSERVATIONS OF THE COURT

In the case of Raghubir Singh v State of Haryana2, the Supreme Court had
observed the following, “We are deeply by the diabolical recurrence of police
torture resulting in a terrible scare in the minds of the common citizens that their
lives and liberty are under a new peril when the guardians of the law gore human
rights to death.”

Further, the Court described police torture to be disastrous for human rights
awareness and humanist constitutional order, subsequently holding the state
responsible.

In Joginder Kumar v State of UP 3, the Court had laid down certain directions for
arrest to be followed. It observed that it was rightful for police officers to have the
authority to arrest an individual, but being in a position where one has to use that
power is altogether a different matter.

In the case of DK Basu v State of West Bengal4, the Apex Court, highlighting the
importance of imposing a restriction on the power of executive officers, observed
the following, “Custodial violence, including torture and death in lock-ups strikes a
blow at the rule of law, which demands that the powers of the executive should not
only be derived from law but also that the same should be limited by law.”
2
AIR 1980 SC 1087
3
AIR 1994 SC 1349
4
AIR 1997 SC 610
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The Court has even gone to extent of granting compensation against the police
officers and in favor of victims of torture and custodial death, as seen in the case of
Sawinder Singh5.

RECENT SUPREME COURT JUDGMENTS

a) Sumit Kumar v. State of Bihar6

In this particular case, the facts were such that the petitioner, during transportation
of milk from one place to another, a milk tanker vehicle was seized in the
jurisdiction of Parsa Police Station (Bihar). The tanker was taken to a nearby dairy
for milk to be extracted and thereinafter detained at the police station where the
detenue was detained in extra-judicial custody. All this was done without lodging
of any FIR and/or following the appropriate procedures of recording the detention
of the petitioner or impounding the vehicle, rendering the seizure unlawful and
detention illegal.

Highlighting the importance of Article 21, the Court observed “Article 21 is of

great importance because it enshrines the fundamental right to individual liberty,
but at the same time a balance has to be struck between the right to individual
liberty and the interest of society. No right can be absolute, and reasonable
restrictions can be placed on them.”

Further elucidating about the role of the Police, the Court observed “Violation of
fundamental rights under Article 21 and 22(2) – Police officers who are custodians
of law and order should have greatest respect for the personal liberty of citizens

5
In Re Death of Sawinder Singh Grover 1995 Supp (4) SCC 450
6
2020 SCC OnLine Pat 2700
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and should not become depredators of civil liberties. Their duty is to protect and
not to abduct.”

In my opinion, the very essence of conferring power to Executive officers is to

ensure that law and order prevail, and people abide by the same. The very act of
not following the pertinent procedure while arresting an individual is in direct
incongruence with the aforementioned essence. If the Court, somehow, comes to
allow the police officers in doing the said act, then it would settle down as a
precedent and eventually, a norm in the society. And we can only imagine the
potential consequences of the same.

b) Mohd. Hakim vs State (NCT of Delhi)7

The facts in the present case are such that the appellant had been charged for the
offence of jointly planning and executing a bomb blast at a certain region and as
such, had been charged with the offence of criminal conspiracy to wage war
against the government of India under Section 121 of IPC.

The Court, while delivering the verdict, observed the following “The appellant had
spent more than 12 years in custody as an undertrial; 256 witnesses have been
examined over the last about 12 years, but 60 prosecution witnesses still remain to
be examined. Regardless of how much longer the trial may take hereafter, the
incarceration of more than 12 years suffered by the appellant in custody as an
undertrial would certainly qualify as a long enough period for the system to
acknowledge that the appellants right to speedy trial continues to be defeated.”

7
AIR 2021 SCC
6
With respect to the final verdict, the Court had granted him release, subject to a
personal bond in the sum of ₹25,000 with two local sureties of the same amount
from family members.

It is imperative to understand that the accused here had spent over a decade of his
life as an undertrial prisoner, with slow process stemming from intricate and
cumbersome criminal procedure of examination of large number of witnesses, and
as such, the right of life of the accused was also at question here. Criminal trials
such as these should never take place in the future, so as to ensure each man lives
with dignity and has access to fair trial as well, in consonance with ethical
principles of criminal jurisprudence.

c) Kharak Singh v State Of UP

The facts in this case were such that Kharak Singh, the petitioner, was charged
with violent robbery in 1941 as part of an armed gang. He was discharged owing to
a lack of proof, but under the Uttar Pradesh Police Regulations, a 'history sheet'
was opened in his name. For habitual offenders or persons who are likely to
become criminals, these regulations called for surveillance powers, including
domiciliary visits.

The police would frequently visit Kharak Singh's house at strange hours, waking
him up when he was asleep, based on these regulations. The petitioner claimed that
the laws infringed on his right to a dignified existence, which includes the right to
privacy, as guaranteed by Article 21 of the Indian Constitution.

It was held, in Supreme Court’s six-judge bench that that the said action of the
police had harmed the right to life guaranteed by Article 21 of the Constitution,

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which he defined as the right to a life of dignity - not just animal existence. He
believed that having the authority to enter someone's home in the middle of the
night to establish their existence was in violation of this right. This was clearly a
violation of Article 21, because the right to life could only be limited by 'law,' and
the Uttar Pradesh Police's executive orders did not meet the meaning of 'law.' The
Bench had also declared the relevant portions of the Uttar Pradesh Police
Regulations illegal.

It was observed by the Bench that Article 21's right to life and personal liberties
guaranteed protection against any direct or indirect intrusion on personal liberties.
The UP Police Regulations were found to be unlawful because they infringed the
right to freedom of movement and the right to life in their entirety.

It was also observed that, notwithstanding the Constitution's lack of specific

provision, the right to privacy should be regarded a fundamental right under Article
21. Justice Subba Rao went on to say that the regulations' control of one's private
life definitely infringed on this right. Because the restrictions could not be called
"law," they were found to be in violation of Article 21.

The ratio decidendi behind this judgment would go a long way in shaping our
understanding the nature of the quintessential rights given to us under Article 21 of
our Constitution.

CONCLUSION

The very existence of Law is leaned towards ensuring balance, peace and structure
in the society. In the process, there could be a scenario where the Legislation per
se is referred to as Draconian due to the extraordinary power it confers to the

8
officers. Let us take, for example, the Armed Forces Special Powers Act 8 (AFPSA)
which is prevalent in the North East and aims to restore order in high tension areas,
and in the process, it gives immense power to the Army officers in the region. The
Act ensures that the Army Officers are put in such a position that they can ensure
maximum peace and stability in such high-tension areas, also occupied by Maoists
and Naxalites.

But there are two sides of a coin. There were several incidents when this power
was used in the widest sense in an unethical way. Naturally, there could be
circumstances wherein extraordinary power is used in an unethical and corrupt
way.

The same goes with the Police officers as well, the so called “Guardians of the
Law.” By merely looking at the statistics, we can infer that this abuse of power by
the Police is evident and unfortunately, persistent. In the whole picture,
somewhere, an individual’s fundamental right to life, as enshrined under Article 21
of the Constitution, gets deprived.

The Courts, as aforementioned, have gone great extent to define the purview and
scope of Article 21 and not just that, they have also gone a step further by
compensating the families of those who have suffered the consequence such
misuse of power.

8
Section 4 of the Armed Forces Special Powers Act, 1858
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