Roll no.

(in digits) 1629

Roll no. (in words) One Thousand Six Hunded and twenty-nine
Semester IV (Four)
Subject Crime and Punishment( CrPC)
Topic Number TOPIC 1
Topic Name
Analyse the safeguards formulated by judiciary
to prevent police atrocities in
India.

1
 TOPIC 1

Analyse the safeguards formulated by judiciary to prevent police atrocities in India.

Table of Contents
ABSTRACT....................................................................................................................................3
Introduction......................................................................................................................................3
Indian Police and Brutality..............................................................................................................4
Analysis of Judicial Safeguards with regard to failure to register FIR and investigate efficiently. 6
Treatment of Women in Custody..................................................................................................15
Analysis of judicial safeguards for women...................................................................................15
Police atrocities at the behest of the state......................................................................................17
Landmark case of Prakash singh and others v. Union of India: Police reforms............................18
Recommendations..........................................................................................................................19
Conclusion.....................................................................................................................................21

2
 ABSTRACT

This project is dealing with the issue of tracing the history of police reform in relation to the
custodial violence or other police excess in India. The police reform process is going on since
late 1960s till this date without any visible progress in sight, and with this project it can be
highlighted that it’s time to start taking actions on the issue of police atrocities. To understand
and trace out the history and present status of police reforms, reference was made to several
reports of law commission, National police commission and other committees. Based on these
reports and SC guidelines, it was established that no steps was taken to reform the police which
can minimize custodial violence and police atrocities, so it is time to take steps to implement
police reforms in accordance with the reports and recommendation of several committees.

Keywords: police, justice, human rights, safeguards, judiciary.

Introduction

The police force is the most visible arm of the state. The police force has very important duties
of constitutional will, maintenance of law and order, detection of crime, and
enforcement process of social legislation. The role of police as a common man
understand is to safeguard lives and property, to protect the innocent against deception, the
weak against oppression or intimidation, and the peaceful against violence and disorder;
and to respect constitutional rights of all men to liberty, equality and justice. 1

However a stark ground reality exists for, hardly a day passes without the news of police
atrocities, torture and brutality being reported. Increasing frequency of custodial atrocities and its
reportings in the media expose police to severe criticism. Nothing blemishes the image of police
more than the brutality directed against persons in their custody and, no doubt, whenever a
hapless victim in police custody is tortured or killed human dignity is affronted. Police atrocities
are widespread in India and the colonial system of police laws is to be blamed. The basic cause
of such an unfortunate situation is that the powers which are given to the Police to carry
out their legitimate and essential functions are still carried out in the colonial mind

1
John J. Broderick, Police in a Time of Change 89 (1977)

3
frame, capable of being abused by them to torture their fellow beings, to destroy lives and
property, and oppress and intimidate the weak. 2 Indeed nothing have tarnished the image
of the police more than brutality directed against persons in police custody. Third degree
torture and custodial deaths have become an intrinsic part of police investigation. ;
Several incidents of police torture often hit the headlines in newspapers and pose a serious
question that who will stop this sanctioned inhumane treatment or who will police the
police ?

The Indian Judiciary Being the custodian and protector of fundamental rights, the judiciary has,
of course, taken serious and prompt action against the wrongdoers and has controlled their
unlawful activities of custodial violence to a large extent by holding that police cannot be a law
unto themselves expecting others to obey the law. For, if a law enforcer becomes a law breaker,
it breeds not only contempt for law but also invites every man to become a law unto him.
Although there have been a plethora of judgments which has delineated certain guidelines in
addendum to reports by the law commission and police commission which highlights this certain
issue, yet, there has not been a single significant change in this regard which could restrict the
police to adhere to the principle of rule of law.

Indian Police and Brutality

Police atrocities are widespread in India and the colonial system of police laws is to be blamed.
Police reform thus becomes a necessity, but except for certain circumstances, Police reforms
have always been a “red herring” for the policymakers. 3 Police have a vast array of discretionary
powers which police often time misuse. The conduct of the police is also not satisfactory with
numerous instances of police atrocities. The culture of impunity in the police department is not a
coincidence but it’s a systematic due to the existing colonial laws which still are in force. There
is no accountability fixed for the police and the immunity given under section 197 of CrPC.
further corrodes any pretense of accountability by police and there is a requirement of getting
sanctions from the government for starting a trial against the police personnel. Accountability
means an obligation or willingness to accept responsibility to account for one’s actions, and this
seems to be missing from the Indian Police System.4
2
Md. Mohibui Hague. "Police Atrocities in India". 10 The Third Concept 33 (March 1996)
3
Mihir Desai, Red Herring in Police Reforms, 44 ECONOMIC AND POLITICAL WEEKLY 8-11 (2009)
4
K.S. Subramanian, Why India Need Police Reform, Centre for Investigative Journalism, CIJ

4
Drawing on the extensive existing documentation of human rights abuses by the Indian police,
Human Rights Watch conducted its own research and found four clusters of issues warranting
attention, addressed in separate subsections of this report: police failure to investigate crimes;
arrest on false charges and illegal detention; torture and ill-treatment; and extrajudicial killings.

FAILURE TO REGISTER FIR’S AND INVESTIGATE CRIME

EFFICIENTLY

Police in India frequently fail to register First Information Reports and to investigate crimes
properly. Police blame political pressure, insufficient personnel and already existing heavy
workload. The brunt of the above stated insufficiency is faced by the poor, traditionally
vulnerable communities and women. It is a well known fact that police often do not properly
investigate cases of domestic violence and heinous crimes including rape, they often retraumise
the victims ho approach them through their hostile or inadequate response.

5
The SC held in case of State of Andhra Pradesh v P.V. Pavithran that there is no denying the
fact that a lethargic and lackadaisical manner of investigation over a prolonged period makes an
accused in a criminal proceeding to die every moment and he remains always under extreme
emotional and mental stress and strain and the remains always under a fear psychosis. Therefore,
it is imperative that if the investigation of a criminal proceeding staggers on with a tardy pace
due to the indolence or inefficiency of the investigating agency causing unreasonable and
substantial delay results in grave prejudice. Personal liberty will step in and resort to the drastic
remedy of quashing further proceedings in such investigation.

For lodging of an FIR u/s 154 of the CrPC understanding nuances of S. 154 are important. It has
been held by the SC in LallanChaudhary v. State of Bihar6that

“the mandate of S. 154 is manifestly clear that if any information disclosing a cognizable offence
is laid before an officer in charge of a police station, such police officer has no other option but
to register the case on the basis of such information.”Genuineness or credibility of the
information is not considered to be a condition precedent for registration of a case.7

5
AIR 1990 SC 1266, see also Shyam Babu v State of U.P., (2012) 6 ALJ 10
6
Lallan Chaudhary and Ors. v. State of Bihar and Ors., AIR 2006 SC 3376
7
Ramesh Kumari v. State (NCT of Delhi) and Ors., AIR 2006 SC 1322.

5
This question was discussed in detail by the SC in the case of Lalita Kumari v. Govt. of
U.P8,where it was held that registration of FIR is mandatory under S. 154 of CrPC if the
information discloses commission of a cognizable offence and no preliminary inquiry is
permissible in such a situation.

S. 154 uses the word 'shall' which in its ordinary significance is mandatory and the court shall
ordinarily give that interpretation to that term unless such an interpretation leads to some absurd
or inconvenient consequence or be at variance with the intent of the legislature. 9 Although S.
154(3) makes a provision to approach the higher police officer for the purpose of getting his
complaint registered as an FIR in case a complaint is not registered by the officer in charge, it
does not force the court to give a purposive interpretation of the impugned section considering
that the wording of the section is clear and unambiguous.

Analysis of Judicial Safeguards with regard to failure to register FIR and

investigate efficiently

In H.N. Rishbud and S.N. Basak it was held as under:

"The investigation under the Code, takes in several aspects, and stages, ending ultimately with
the formation of an opinion by the police as to whether, on the material covered and collected, a
case is made out to place the accused before the Magistrate for trial, and the submission of
either a charge sheet or a final report is dependent on the nature of the opinion, so formed. The
formation of the said opinion, by the police, is the final step in the investigation, and that final
step is to be taken only by the police and by no other authority." In State of Bihar & Anr. v. JAC
Saldanha & Ors.10 the same principle was reiterated. SC in Union Of India vs Prakash P. Hinduja
& Anr11 held hhus the legal position is absolutely clear and also settled by judicial authorities
that the Court would not interfere with the investigation or during the course of investigation
which would mean from the time of the lodging of the FIR till the submission of the report by
the officer in charge of police station in court under Section 173(2) Cr.P.C., this field being
exclusively reserved for the investigating agency.12
8
Lalita Kumari v. Govt. of U.P. and Ors., AIR 2014 SC 187
9
Khub Chand and Ors. v. State of Rajasthan and Ors., AIR 1967 SC 1074.
10
1980 (1) SCC 554
11
 Appeal (crl.) 666 of 2002
12
Id.

6
However 4 year later the SC in Sakiri Vasu vs State Of U.P. And Others 13 held that “even if an
FIR has been registered and even if the police has made the investigation, or is actually making
the investigation, which the aggrieved person feels is not proper, such a person can approach
the Magistrate under Section 156(3) CrPC., and if the Magistrate is satisfied he can order a
proper investigation and take other suitable steps and pass such order orders as he thinks
necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under
Section 156(3) CrPC, though briefly worded, in our opinion, is very wide and it will include all
such incidental powers as are necessary for ensuring a proper investigation.”

The decision of court in Sakri Vasu is very welcome as Indian criminal justice system is plagued
with inefficient investigation. There are many reasons behind this mainly being political
interference, vested interest of the police and biasness against the poor and marginalized
communities. The decision of SC is in line with the principle that justice should not only be
done, but should also be seen to be done.

Recommendations

Hence Magistrate’s power to ensure a proper investigation are need of the hour, however the SC
has should detail down the circumstances, occasions and guidelines leading to power of a
magistrate to ensure a proper investigation and to what extent can the magistrate direct the
investigation and what are the requirements of a proper investigation.

With regard to non registering of FIR the home ministry in 2013 in a very welcome move told
the states and Union Territories to clearly instruct all police stations that failure to register FIR
on receipt of information about any cognisable offence will invite prosecution of the duty police
officer under IPC Section 166A (government official disobeying law) which will invite
imprisonment up to one year.

DISCREPANCIES CIRCUMSCRIBING POLICE POWER OF ARREST

AND DETENTION

13
(2008) 2 SCC 409

7
The National Human Rights Commission has stated that 60 percent of all the arrests made by the
police are either unjustified or unnecessary and that 75 percent of all the complaints of human
rights violations received are against the police.14

Offence in the Criminal Procedure Code has been categorized under two heads, namely,
cognizable offences15 and non-cognizable offences.16 The object of the power of arrest is to let
police act on assumption that the prima facie suspicion is ill founded.17 Ironical is the fact that
this power has been left unrestricted by the framers of this law, giving all the room to the police
to act according to its whims and fancies.

The law commission’s report states that arrests under preventive provisions have been more than
arrest for substantive offences.18 The requirement for a complete overhaul of the provisions of
arrest comes at this stage where it is necessary to control crime rates but along with a check on
misuse of police power of arrest. Accountability on part of police is a way out. Furthermore, it is
impossible to accumulate evidences against the officials who themselves prepare the records of
the station. Although the safeguards have been put into black and white but they are nothing
more than mere theories. The Law Commission19 recommended that amendments would be
meaningless if the arrested person is not provided the reasons for arrest. It recommended that any
form of arrest shall also require written approval by the officer in charge of the police station.
The part of proving the malice of the police is an arduous task due to lack of evidences. Even the
magistrates seem not to be in position to question the arrest but only order detention if the
reasons are appropriate under section 167(2).

Section 220 of CrPC provides for the safeguards to the arrestee, in case of malicious nature, but
unless and until the accused has some political approach, the right does not manifest well. In
order to prove the malicious nature of arrest, the detenu needs to indicate that deprivation of
rights guaranteed by article 21 or 22 has been caused, or that he had no opportunity of making an
effective representation against detention. Unless and until this is proved, the court cannot order

14
Law Commission, Law Relating to Arrest, Report No. 177 (2001)
15
The Code of Criminal Procedure, 1973 § 2(c).
16
The Code of Criminal Procedure, 1973 § 2(l)
17
Dumbell v. Roberts, [1944] 1 All E.R. 326 C.A
18
LAW COMMISSION OF INDIA, 177th Law Commission Report on laws relating to Arrest (2001).
19
LAW COMMISSION OF INDIA, 268th Law Commission Report on Provisions relating to Bail (2017)

8
cancellation of detention.20 The most draconian aspect of preventive detention law is that the
courts have no jurisdiction to go into the propriety or impropriety of the subjective satisfaction. 21
The court cannot question the merits of the allegations which are made grounds for detention.22

Analysis of Judicial Safeguards with regard to arrest and detention

In Nandini Satpathy v. PL Dani,23the SC remarked that an ideal balance has to be struck between
protecting the rights of the individual on the one hand, and the rights of the society at large on
the other. Over the years, it has been observed that the rights of the accused have been accorded
better protection. In the case of Joginder Kumar v. State of UP24, 10 a twenty year old lawyer
was detained by the police for a number of days. A writ of habeas corpus was filed under Article
32 of the Constitution of India. It was found that there was no case against him and he was
merely arrested in connection with an investigation in another case. The SC condemned the
police, as personal liberty was curtailed without observance of due process of law. In the course
of awarding the judgment, the court found that more than 60% of the arrests in the country were
unnecessary and completely unjustified. Furthermore, it was found that such arrests came at a
substantial cost to the exchequer and accounted for 43.2% of the jail expenditure.

Considering the arrest and detention is incalculable harm to the reputation and self esteem of an
individual, it further held that except in heinous offences, an arrest must be avoided. 25 Thus,
unless condition so requires to enable police to prevent the offences as well as to investigate the
crimes properly, no arrest can be made. With a view to minimizing the cases of illegal detention,
the apex court expanded the meaning of articles 21 and 22 of the Constitution and formulated the
following directives:26

i. An arrested person being held in custody is entitled, if he so requests to have one

friend relative or other person who is known to him or likely to take an interest in his
welfare told as far as is practicable that he has been arrested and whereabouts of his
detention.
20
Biswanath Bhattacharya v. Union of India, (2014) 4 S.C.C. 392
21
Jagjit Singh v. State of Punjab, (1977) Punj. L.R. 414.
22
Hemlata Kantilal Shah v. State of Maharashtra, (1981) 4 S.C.C. 647
23
A.I.R. 1978 S.C. 1025
24
AIR 1994 SC 1349.
25
Id. at 1354
26
Ibid

9
 ii. The police officer shall inform the arrested person when he is brought to the police
station of this right.
iii. An entry shall be required to be made in the diary as to who was informed of the
arrest. These protections from power must be held to flow from articles 21 and 22 (1)
and enforced strictly.

Apart from the above formulation, the apex court commanded the magistrates, before whom the
arrested person is produced, to satisfy themselves that these requirements have been complied
with. These requirements, according to the court, shall be in addition to the rights of the arrested
persons found in various police manuals. To ensure compliance of aforesaid requirements, the
DGP of all the states were directed to issue necessary instructions requiring due observance of
these requirements along with maintaining the record of the reasons of arrest by the arrest.27

The guidelines formulated by SC have not been complied with as the increasing events of
custodial atrocities including custodial death show that the police personnel have not only
flouted the legal and constitutional norms but have also flouted the norms set by the apex
judiciary. Hence mere formulation of guidelines and safeguards would not be sufficient

Within a time span of three years after the above judgment, considering this aspect seriously, the
SC in D.K. Basu v. State of West Bengal (I) warned that:28

“Failure to comply with the requirements hereinabove mentioned shall apart from rendering the
concerned official liable for departmental action, also render him liable to be punished for
contempt of Court and the proceedings for contempt of Court may be instituted in any High
Court of the country, having territorial jurisdiction over the matter.”

Apart from this warning, the SC handed down thirteen directions that not only prohibit certain
practices but also require the police to fulfill certain positive obligations such as preparation of
memo of arrest, allow the arrestee to meet his lawyer during interrogation, notification of time,
place of arrest and custody, telegraphically, getting arrestee medically examined after arrest and
every 48 hours, information about arrest to police control room etc.. 29 Emphasizing on
circulating it to every police station of the country and communicating it to the people through
27
D.K. Basu, supra note 1 at 436-37; see also Vinesh Pundir v. State oj UP.
28
Ibid
29
Id. at 437

10
print and electronic media channels, the apex court opined that creating awareness about the
rights of the arrestee would be a step to combat the evil of custodial crime and bring in
transparency and accountability.30 However, the aforesaid requirements have not been complied
with in letter and spirit by the state governments as there lacks a political will. Taking it
seriously, the SC in D K. Basu v. State of W.B. (II) 31 again directed the states to strictly comply
with the same, observing that "the state governments ought to know that protection of human
rights is their primary constitutional obligation and not the sole concern of this court”, the court
also directed state human rights commissions to conduct a surprise check at a police station and
ensure compliance with the requirements laid down by the court.

The legislature finally took into account these recommendations made by the judiciary and
incorporated them into CrPC 1973 by means of the CrPC Amendment Act 2008. In the year
2008, several amendments were made to the CrPC 1973 especially in relation to arrest. The
various guidelines that were specified in D.K. Basu v. State of West Bengal14 case were
incorporated into the legislation by virtue of these amendments. Section 41 A of the CrPC 1973
provides that a police officer instead of arresting the person concerned can instead merely issue a
notice of appearance to him. Section 41B of the CrPC 1973 lays down the procedure for arrest
and duties of the officers making the arrest. Section 41C of the Code requires the state to set up a
police control room in every district and at the state level. Thus, all the amendments closely
reflect those that were specified in D.K. Basu v. State of West Bengal.

DISCREPANCIES CIRCUMSCRIBING CUSTODIAL TORTURE AND

DEATHS

Section 49 of The Code of Criminal Procedure empowers the police to use all means possible if
the person tries to evade arrest but cannot cause death unless arrestee is accused of death or life
imprisonment. Section 197 of CrPC “When any person who is or was a Judge or Magistrate or a
public servant not removable from his office save by or with the sanction of the Government is
accused of any offence alleged to have been committed by him while acting or purporting to act
in the discharge of his official duty, no Court shall take cognizance of such offence except with
the previous sanction”
30
(2004) SCC (Cri) 11
31
Id.

11
 This clearly seems to permit the police officer to use force which may cause the death of the
person if he is even suspected to commit an offence punishable with life imprisonment or death.
The imagination itself is pitifully ridiculous that, the police have the power to kill a person on
mere suspicion in such situations. In such situations judicial inquiry is generally not the resort; a
departmental inquiry is carried out in which case file closes on discretion and no legal action is
taken thereafter. The humanity shreds into million pieces when acts such as custodial rapes go
unpunished. The onus of proof being on the accused, custodial torture continues unabated.

Article 21 of the Constitution of India ensures a ‘fair, just and reasonable’ procedure in all facets
of Criminal Justice Administration. The worst violation of human rights and custodial justice
guarantee takes place in the course of investigation, when the police act under the pressure to
secure most clinching evidence often resort to third degree methods and torture. The Courts have
not only exposed the seamy side of police investigation process but in several cases also dished
out exemplary punishments to ensure human conditions of investigations.

Analysis of Judicial Safeguards with regard to custodial torture and deaths

In Kishore Chand v State of Himachal Pradesh 32K. Ramaswamy, J. highlighted the over zeal of
investigation agencies and its dangers for the liberty of the individual and observed that,
“undoubtedly, heinous crimes are committed under great secrecy and investigation of the crime
is difficult and tedious task. At the same time the liberty of a citizen is precious one guaranteed
by Article 3 of Universal Declaration of Human Rights and also Article 21 of the Constitution of
India and its deprivation shall be only in accordance with law.”33

The SC in case of Dr. Mehmood Nayyar Azam v State of Chhattisgarh and Other observed that
“when an accused is in custody, his Fundamental Rights are not abrogated in toto. His dignity
cannot be allowed to be comatosed. The right to life is enshrined in Article 21 of the Constitution
and a fortiorari, it includes the right to live with human dignity and all that goes along with it.”
The restrictions imposed have the sanction of law by which his enjoyment of fundamental right
is curtailed but his basic human rights are not crippled so that the police officers can treat him in
an inhuman manner. On the contrary, they are under obligation to protect his human rights and
prevent all forms of atrocities.
32
1991SCC (Cri) 172
33
Id.

12
The alarming cases of custodial torture and death in police custody continue to show an upward
trend. The main reason being the wide array of powers being granted to the police as mentioned
in the above stated provision, secondly investigation into such matters is a departmental
investigation and usually no evidence is found to hold the power abusing officer culpable, as
they try to circumvent the relevant evidences and also try to misguide the courts by their
fabricated story.

Hence an on objective and independent inquiry is the need of the hour in such cases. SC in
Secretary, Hailakandi Bar Association v. State of Assam 34 directed the CBI to register and
investigate the instant case of custodial death by holding that "it is futile to expect an
independent and wholly objective investigation by the state police. Even otherwise, the people
will have little confidence in the investigation, no matter how honest and objective the
investigation be." Again in Mrs. Paramit Kaur v. State of Punjab 35 where serious allegations were
leveled against the officers of the police, it was held that it would be better and in the interest of
justice to hand over the investigation to an independent authority. Following the same, the SC in
Ajab Singh v. State of UP36 where the police explanation of a custodial death was a concocted
story, directed the CBI to register the case and conduct an investigation into the circumstances of
custodial death. It also directed the CBI to complete investigation expeditiously and file a copy
of the investigation report in the court. Proving criminal liability of the custodian culprit is
another problem in the area as, barring few exceptions, the burden of proof lies on the
prosecution. Because of this procedural lacuna, the number of acquittals of custodian offenders
has been increasing. For, it is the police officers alone who can give evidence regarding the
circumstances of custodial atrocities and, as stated above, police often try to circumvent the
relevant evidence and mislead the courts.

Taking a serious note of this situation, the apex court in State of UP v. Ram Sagar Yadav
observed that:37

34
(1995) Supp (3) SCC 736
35
Id. at 740
36
(2000) 3 SCC 521
37
AIR 1985 SC 416 at 421

13
“The law as to the burden of proof in such cases may be reexamined by the legislature so that
handmaids of law and order do not use their authority and opportunities for oppressing the
innocent citizens who look to them for protection.”

This recommendation of the apex court was subsequently referred to the Law Commission of
India, which in its 113th Report recommended amendment of the law of evidence by
incorporating a new section, section 114-B, in the Indian Evidence Act, 1872 providing that if
there is evidence to show that the injury was caused to a person, when he was in police custody,
"the Court may presume that the injury was caused by the police officer having custody of that
person during that period". This recommendation which was made 35 years ago in 1985 is still
gathering dust, despite the 's several reminders to Parliament to give a serious thought to it.38

Recommendations

The exaggerated adherence to and insistence upon proving the guilt of custodian offender
beyond every reasonable doubt often results in miscarriage of justice and makes the justice
delivery system suspect and vulnerable. Ultimately, the society suffers and due to want of
punishment, the abuse of power by police force continues to grow unhindered.The Apex Court
must rebuke the administration and executive for lacking the political will to go ahead with
enacting section 114-B.

Treatment of Women in Custody

Women in custody are particularly vulnerable to physical and sexual abuse. Women face a lot of
difficulties in all stages of criminal justice process, especially while in police custody. At the
time of her arrest, the women suffer from lack of knowledge of their basic rights. It is most
unfortunate that women, in particular the poor persons hailing from lower social segments, are
victims of custodial crimes at the hands of the Police. The police find it most convenient to target
the destitute women because they know that they may easily escape after committing even rape
on them.39 Though procedural safeguards do exist, they are totally disregarded in matters like

38
Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble , (2003) 7 SCC 749; Munshi Singh Gautam v. State of
MP., AIR 2005 SC
39
AnjaJi Nirmal, Rip The Khaki (1998), p. 138

14
arrest, custody, transfer, search etc. These cause great hardships to women. Women are also
vulnerable to torture and ill-treatment including rape. Custodial rape is the worst crime against
women. The rape cases in the custody of police at the precincts of police station is a fatal blow to
the cherished concept of rule of law indicating an indelible blot of shame on the organization of
investigating agency in a democratic society.40

Analysis of judicial safeguards for women

The SC in Sheela Barse vs State of Maharashtra 41, it was held that it is the duty of the police
officer making arrest to see that arrested females are segregated from men and kept in female
lockup in the station.In case of no female lock up they should be kept in a separate room and .
Interrogation of females must be carried out in the presence of female policepersons.

Courts took a very serious view of complaints regarding rape in custody or harassment.
Expressing serious concern about the safety and security of women in police lock up, the SC
directed that a woman judge should be appointed to carry out surprise visit to police stations to
see that all legal safeguards are being enforced.. The Court issued detailed procedures to ensure
enforcement of human rights of women and girls in police and prison custody in Dr Upinder
Baxi and Others v State of U.P. 42 and Christian Community Welfare Council of India and Others
v Government of Maharashtra and Others43 when the Court’s attention was drawn to horrible
conditions in custodial institution’s for women and girls. In Mehboob Batcha and Others v State
Rep. by Superintendent of Police44, the Court observed, “Crimes against women are not ordinary
crimes committed in a fit of anger or for property. They are social crimes. They disrupt the
entire social fabric, and hence they call for harsh punishment”. The Court further held that the
horrendous manner in which victim was treated by policemen was shocking and atrocious, and
calls for no mercy.

40
A.Ratnavelu, "Rapid Justice to Victims, (Ed.) (1999), p. 190
41
1983 SCC 96. 37
42
AIR1987 SC 191
43
1995 CriLJ 4223 (Bom).
44
(2011) 3 SCC 109

15
In the CrPC amendment of 2008 safeguards were introduced in line with above mentioned
decisions. Some special provisions were made so as to prevent the abuse of the exercise of
arbitrary powers by the police especially with regard to women. For instance, it has been
specified under Section 46(4) of the CrPC 1973 that no woman will be arrested before sunrise
and after sunset. If the circumstances are such that the woman needs to be arrested immediately,
then such arrest must be conducted by a woman officer. Such arrest must be conducted with the
prior permission of the judicial magistrate. Furthermore, when a woman is being arrested, unless
circumstances point towards the contrary, the intimation of her arrest itself is a presumption of
her submission. This presumption has been made under proviso to Section 46(1). The police
officer will not touch the body of the woman unless the officer is a woman. If the arrested
woman resists then only the police can use the required force to effectuate the arrest. These
provisions for women have been made in pursuance of Article 15(3) of the Constitution which
allows special provisions to be made for women to ensure equality. These provisions ensure that
the power is not abused by police officers so as to perpetuate violence against women.

Recommendations

 As of 2019, there entire police officers comprise of only 7% women. The women should
be actively inducted into the police force.
 Formulation and adoption of national policy on custodial justice to women.
 Special courts must be setup to dispense justice separately and speedily to women.
 Women assistance police unit should be setup.

Police atrocities at the behest of the state

Political interference is rife at the local level, in the higher echelons and in everyday functioning
Officers are selected and given key placements in consideration of their affinity and loyalty to
the ruling party and its political philosophy. Their intrinsic merit and administrative
qualifications are given secondary importance. The disastrous consequences of this were seen
during the Emergency (1975-77) when, as observed by the Shah Commission: “…the police was
used and allowed themselves to be used for purposes some of which were, to say the least,
questionable. Some police officers behaved as though they are not accountable at all to any
public authority. The decision to arrest and release certain persons were entirely on political

16
considerations, which were intended to be favourable to the ruling party. Employing the police to
the advantage of any political party is a sure source of subverting the rule of law. The
Government must seriously consider the feasibility and the desirability of insulating the police
from the politics of the country and employing it scrupulously on duties for which alone it is by
law intended.”45 The Bureau of Police Research and Development, warned that “excessive
control of the political executive and its principal adviser over the police has the inherent danger
of making the police a tool for subverting the process of law, promoting the growth of
authoritarianism, and shaking the very foundations of democracy.” 46 The warning went
unheeded.

Besides Emergency, the following are some other instances,:

i. the anti-Sikh riots of 1984,

ii. excesses on Uttarakhand agitators in October, 1994,
iii. Post-Godhara communal riots in Gujarat, in 2002, and
iv. The recent events (2020) of Anti CAA protests and Delhi Riots police acting
indiscriminately as police entered Jamial Islamia University and viciously attacked the
students. Spate of complaints of police acting in partisan manner and the encounters, to
eliminate “the state from crime and criminals,” have made matters worse.

On the basis of survey conducted at the ground level, a leading newspaper reported that
between March 2018 and until August 4 of 2019, there have been 63 encounter deaths, across 24
districts of U.P. to ‘clean up the state of crime and criminals.’ In number of cases similar FIRs
and same key words were found. The SC was compelled to issue notice to the State government,
in this regard

Landmark case of Prakash singh and others v. Union of India: Police reforms

The SC in case of Prakash singh and others v. Union of India 47 issued seven directives to the
States and Centre which had to be followed by 2007. The “Seven Directives” were

45
Shah Commission,1977
46
Bureau of Police Research and Development,1979
47
2006 3 SCC Cri 417

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 1. establishment of State Security Commission to manage the police and evaluate its
performance,
2. ensure that the head of police (DGP) is selected on merit with a tenure of minimum 2
years,
3. ensure that other operational police officers are also given a tenure of minimum 2 years,
4. separate investigation from law & order functions,
5. set up a police establishment board to decide promotions and transfers of junior police
officers ,
6. set up a Police Complaints Authority to enquire into serious complaints against officers
above the rank of DSP and
7. set up a National Security Commission at the centre for selecting top Central police
officers.48

Present Status and implementation of these reforms

The States have dilly-dallied in the implementation of the Hon’ble Court’s directions. Even
where the mandated institutions – the State Security Commission, Police Establishment
Board and the Complaints Authorities – have been set up, their composition has been
subverted, their charter diluted or their powers curtailed. There is arbitrariness in the
appointment of DGP with several States not consulting the UPSC in the empanelment of
officers. Police officers on operational assignments are shunted out for all kinds of
administrative reasons before the completion of two years. There is tardiness in the
separation of investigative and law and order functions of the police

a. States which have passed executive orders have diluted the directions of the SC. An
update prepared by a private website in 2014 said that except for Kerala State no other
States have done meaningful reforms except “pro-forma” compliance.
b. By 2019 only six — Kerala, Tamil Nadu, Andhra Pradesh, Karnataka, Telangana and
Rajasthan — had implemented the 2006 directions.
c. The following 17 States have passed their own Police Acts: Assam, Bihar, Chhattisgarh,
Gujarat, Haryana, Himachal Pradesh, Karnataka, Kerala, Maharashtra, Meghalaya,
Mizoram, Punjab, Rajasthan, Sikkim, Tamilnadu, Tripura and Uttarakhand. The States
48
Id.

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 have passed these laws essentially to circumvent the implementation of Court’s
directions. The Acts violate the letter and spirit of Court’s directions..
d. Government of India has also not shown sincerity in implementing the Court’s
directions. A Model Police Act was drafted by Soli Sorabjee Committee as far back as in
2006. The Government of India is yet to pass an Act for the Union Territories on those
line.

The SC directions, it needs to be highlighted, are not for the glory of the police – they are to give
better security and protection to the people of the country, uphold their human rights and
generally improve governance. If sincerely implemented, they would have far reaching
implications and change the working philosophy of the police. The Ruler’s Police would be
transformed into People’s Police

Recommendations

 Firstly, a critical step is holding abusive officers accountable. Those commit torture or
other abuses must be treated as criminals as they are. In case of a custodial death, the
police officer faces suspension this needs to be done away with. Instead of suspension
and departmental inquiry, the accused should be subjected to a court trial for murder and
he should have no further recourse to again get his post. These are tough times and tough
times call for tough measures.
 Secondly, what India should do to tackle the use of torture by the police officials is the
ratification of the ‘UN Convention against Torture’. Indian government signed this
convention is 1997, however, never ratified it. If passed India would be held accountable
for every case relating to torture in front of the UN and it will automatically help India to
tackle these cases The NHRC and Indian SC has recommended again and again to enact a
special legislation on torture however the state has turned a deaf ear due to lack of
political will.
 Third suggestion would be to reduce ‘political interference’ as much as possible. The
interference of politicians in India to make the accused of a heinous crime accept
commission of the act as soon as possible lead the police to resort to the use of torture
and other brutal methods to make them confess.

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  The fifth suggestion would be to give full powers to the NHRC, India for investigation
without help of the police, including the power to initiate investigations on its own, to
receive communications and to hear complaints against the police officials on its own.
 A drop in police atrocities require overhaul of archaic police laws and structure.CCTV
camera need to be installed in police stations and prisons, the video recordings should not
be accessible to policemen. Investment in training, personnel and equipment as well as
proper working environment and fixed duty hours is critical to building the professional,
right respecting police forces that largest democracy in the world deserves.
 Lastly, as we know power corrupts. The amendment of the “Police Act of 1861”, which
contains provisions that were only meant to suppress and violate people’s rights. The old
and outdated police act consists of several loopholes that give them the favour to abuse
their powers and get away with it. Only this is the way police atrocities can be curbed in
India.

Conclusion

Police atrocities in India are an undeniable reality with a colonial legacy. Police derives its wide
array of powers from Police Act of 1861, which was passed in the Victorian Era after sepoy
mutiny of 1857 to create an authoritarian force to crush future dissent and instill fear in the
colony. Even after 159 years of this act the state has continued with archaic and outdated act, the
most important factor reinforcing the need for reforms is that the police in India have inherited
their structure, methodologies, and practices from their imperial past, which are clearly not suited
to the policing needs of a liberal and vibrant society of contemporary democratic India. However
what we witness in modern India is the nexus between the politicians and criminals is
undermining the authority of the State. The police are subjected to the indignity of paying

20
obeisance to undesirable elements and even providing them security. People who should be
behind the bars are protected by the country’s elite commandos. A system which permits such
aberrations is inherently faulty and has got to be changed. Mechanisms must be devised which
safeguard the police from becoming a tool in the hands of unscrupulous politicians or oblige it to
protect criminals.

The deliberate violence against a hapless African-American, George Floyd, by white police
officers in Minneapolis, leading to his death, was the trigger for the worldwide protests we see
today against police brutality across nations. The widespread demand of these protests is to
overhaul the system. This may sound a cliché and an impractical and emotional reaction to an
isolated incident. Several such demands have been made in the past in many countries, including
India, whenever these countries have been rocked by police excesses. In a recent despicable
event that has shocked the conscience of the nation, In Tamil Nadu’s Tuticorin district a father-
son duo died in police custody when they were subjected to sexual torture (inflicted using lathis)
at Sathankulam police station. According to National Crime Records Beareau 26,426
incarcerated individuals have lost their lives inside prison. In 2018 alone 1,845 individuals died
in the prison system, but the issue here is that 1,639 of 1,845 people died from ‘natural causes’
whose reasons have not been revealed, it could be anything from poor hygiene in prisons to
sexual, physical and mental abuse. These statistics do not even mention torture by police thought
it’s existence is a widely known fact.

The life, liberty and well-being of large masses of Indian population are inextricably linked with
reforms in the police. It has been rightly said that police reforms are “too important to neglect
and too urgent to delay” and that “lack of reform is destroying India’s international credibility
and reputation (and) is an obstacle to foreign investment, swift development and social justice.”

Police must continue to have recourse to force to maintain order and protect the innocent. But
this use of force must be subject to the rule of law. India is fortunate to have an active judiciary
that shows great concern for the rights of the citizens. The media, too, is independent and willing
to confront the government. There is a strong civic and human rights lobby that pursues police
excesses. Yet the outcome remains less than ideal The nation’s political leadership must focus
upon proper training and the provision of adequate resources to handle serious situations. Events

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that lead to the use of force, particularly dangerous force, must be examined and lessons drawn.
Any further delay in the reforms would be a disservice to the country and a betrayal of its people

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