On March 28, 2022, a Delhi Court directed the Station House Officer (SHO) to register a First Information Report (FIR) against three police officers who have been accused of shooting at and injuring aa suspect. The SHO was also directed to file a compliance report in the matter. These officers were a part of a team to allegedly picked up a suspect and shot him in the knee.
The Court while releasing applicant Laxman Khutekar on bail, stated that it had been vested with the the responsibility to keep a check on these executive excesses so that the flame of the Rule of Law is never laid to rest.
Court’s Order
Metropolitan Magistrate Pranat Kumar Joshi granted bail to the applicant, Laxman Tukaram Khutekar, on a personal bond of Rs. 25,000 with sureties of the same amount and asked him to co-operate with the probe and attend the trail.
The Magistrate in the Order quoted from an American writer, Will Durant’s book – ‘The Pleasure of Philosophy’, “The Thrasymachus of (Plato’s) Republic proclaimed to the world that ‘might is right’, and justice merely the interest of the stronger; the ‘unjust’ is Lord over the truly simple and just, and the ‘just’ is always loser by comparison.”
The Court also quoted the English Judge Lord Denning’s quote, “Be you ever so high, the law is above you,” and added that these “words of wisdom are often forgotten in the moments of passion and zeal to deliver vigilante justice.”
It, however, added that the courts have been vested with the the responsibility to keep a check on these executive excesses so that the flame of the Rule of Law is never laid to rest.
“The law is well settled. The Preamble of our constitution resolves to secure all its citizens justice, liberty and equality. This dream can only be realized when there is a Rule of law,” the order said.
As reported by The Indian Express, Magistrate Joshi agreed with the Sessions Court observation that there exists an unequal equation between the complaint and the might of authorities, and said that “not only the investigation by the police is desired, rather an investigation by a top-rung police official is required in the instant matter.”
Similar Instances
As reported by The Indian Express, a Sessions Court recently pulled up the police, in response to allegations that in a span of three months, five suspects were picked up by a Special Staff team of Dwarka district police, blindfolded and shot in the knee. Police had accused the suspects of various offences and claimed they were shot in retaliatory firing.
One of the men, Deepak Chauhan, had told the court that he was taken by the Special Staff on October 1, 2021, and kept in their office for three days. He claimed he was later taken to a cremation ground and shot in the knee. Police claimed he was going to supply weapons to a criminal gang and when intercepted, shot a head constable wearing a bulletproof jacket, reported The Indian express.
Provisions in Indian Criminal Law
The Indian Penal code (IPC) consists of a provision for right of private defence in which it elaborates upon which situations cannot be used to justify “right of private defence”. It states that if there is no apprehension of death or grievous hurt, a public servant’s act in good faith may not be justified by law. The Section 99 of IPC provides the acts against which there is no right of private defence. The Section is read as:
“Section 99 – Acts against which there is no right of private defence
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law.
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to protection of the public authorities.
Extent to which the right may be exercised —The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1.—A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.
Explanation 2.—A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.”
Code of Conduct for Indian Police
The Ministry of Home Affairs (MHA) in 1985 released Code of Conduct for the Police in India. Below are certain clauses which specifically restrict certain actions of police.
Clause 3 – “The police should recognize and respect the limitations of their powers and functions. They should not usurp or even seem to usurp the functions of the judiciary and sit in judgment on cases to avenge individuals and punish the guilty.”
Clause 4 – “In securing the observance of law or in maintaining order, the police should as far as practicable, use the methods of persuasion, advice and warning. When the application of force becomes inevitable, only the irreducible minimum of force required in the circumstances should be used.”
Clause 5 – “The prime duty of the police is to prevent crime and disorder and the police must recognize that the test of their efficiency is the absence of both and not the visible evidence of police action in dealing with them.”
The entire MHA Model Code of Conduct may be read here:
Code of Conduct for Law Enforcement Officials
This Code was adopted by United Nations General Assembly Resolution on December 17, 1979.
Article 3 of the Code states, “Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.”
This provision emphasises upon the use of firearms to be used only in extreme cases. Every effort should be made to avoid the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardises the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender. In every instance in which a firearm is discharged, a report should be made promptly to the competent authorities.
Article 2 of the Code states, “In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.”
The human rights in question are identified and protected by national and international law. National commentaries to this provision should indicate regional or national provisions identifying and protecting these rights.
The entire UN Code of Conduct may be read here:
Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
The UN adopted these principles in their Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, that was held in Havana, Cuba between August 27 to September 7, 1990.
Law enforcement officials have a vital role in the protection of the right to life, liberty and security of the person, as guaranteed in the Universal Declaration of Human Rights and reaffirmed in the International Covenant on Civil and Political Rights. Also, Article 3 of the Code of Conduct for Law Enforcement Officials provides that law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.
The Seventh Congress, in its Resolution 14, inter alia, emphasises that the use of force and firearms by law enforcement officials should be commensurate with due respect for human rights. It is appropriate that, with due regard to their personal safety, consideration be given to the role of law enforcement officials in relation to the administration of justice, to the protection of the right to life, liberty and security of the person, to their responsibility to maintain public safety and social peace and to the importance of their qualifications, training and conduct.
Under clause 4 of the General provisions of these principles, it is stated, “Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.”
Under clause 9 of the Special provisions of the principles, it is stated, “Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”
Under clause 10 of the Special provisions of the principles, it is stated, “In the circumstances provided for under principle 9, law enforcement officials shall identify themselves as such and give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons, or would be clearly inappropriate or pointless in the circumstances of the incident.”
Under Special provisions of the principles, it is stated in its clause 11 the rules and regulations on the use of firearms by law enforcement officials an also includes guidelines.
The entire Basic Principles on the Use of Force and Firearms by Law Enforcement Officials may be read here:
Immunity granted to police personnel
The section 197 of Code of Criminal Procedure (CrPC) provides immunity to public servants from prosecution for any misappropriate acts done by public servants which include police personnel. Most cases of police brutality have to be brought to the notice of the judiciary directly by means of writ petitions and in some cases, the courts have awarded compensation to the victims of police excess and brutality. One wonders – how is that adequate?
There is a fine line between violation of human rights and a police officer acting in disposition of his duty. “I was just doing my duty” is the shield used by police men, unless the excess can be somehow proved and it can take years before any compensation is received, but in most cases, the police officer will complete his years of service and reap the benefits of being a public servant.
Although the Indian Police Act, 1861 does penalise police for violation of duty or willful breach or neglect of any rule or omission of duty under section 29, there is no specific section that deals with police brutality.
Section 29 of the Indian Police Act, 1861 read as below:
“Section 29 – Penalties for neglect of duty, etc
Every police-officer who shall be guilty of any violation of duty or wilful breach or neglect of any rule or regulation of lawful order made by competent authority, or who shall withdraw from the duties of his office without permission, or without having given previous notice for the period of two months, 1 [or who, being absent on leave shall fail, without reasonable cause, to report himself for duty on the expiration of such leave] or who shall engage without authority in any employment other than his police duty, or who shall be guilty of cowardice, or who shall offer any unwarrantable personal violence to any person in his custody, shall be liable, on conviction before a Magistrate, to a penalty not exceeding three months’ pay, or to imprisonment, with or without hard labour, for a period not exceeding three months, or to both.”
Remedies available to the public
The only three practical and viable remedies that one has against police brutality are:
– to file a complaint with the State Police Complaints Authority
– to file a writ petition at the High Court, or Supreme Court, whatever the case may be
– approach the State or National Human Rights Commission.
All processes can prove to be long drawn as none are bound by a statutory time frame.
However, these violations need to be arrested and only true political will and some serious reforms in police administration at state and local level will be required to bring about real change and prevent further human rights violations.
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