How to check the abuse of Police Power?
Transparency of Action and Accountability perhaps are two possible safeguards
which we must insist upon. Attention is also required to be paid to
properly develop work culture, training and orientation of the police force
consistent with basic human values. Training methodology of the police needs
restructuring. The force needs to be infused with basic human values and made
sensitive to the constitutional ethos. Efforts must be made to change the
attitude and approach of the police personnel handling investigations so that
they do not sacrifice basic human values during interrogation and do not resort
to questionable forms of interrogation.
With a view to bring in transparency, the presence of the counsel of the
arrestee at some point of time during the interrogation may deter the police
from using third degrees methods during interrogation.
Apart from the police, there are several other governmental authorities also
like Directions of Revenue Intelligence, Directorate of Enforcement, Coastal
Guard, Central Reserve Police Force (CRPF), Border Security Force (BSF), the
Central Industrial Security Force (CISF), the State Armed Police, Intelligence
Agencies like the Intelligence Bureau, R.A.W., Central Bureau of Investigation
(CBI), CID, Traffic Police, Mounted Police and ITBP, which have the power to
detain a person and to interrogate him in connection with the investigation of
economic offences, offences under the Essential Commodities Act, Excise, and
Customs Act, Foreign Exchange Regulation Act etc.
There are instances of torture and death in custody of these authorities as
well. In Re Death of Sawinder Singh Grover, (to which Kuldip Singh, J. was a
party) Court took suo motu notice of the death of Sawinder Singh Grover during
his custody with the Directorate of Enforcement. After getting an enquiry
conducted by the Additional District Judge, which disclosed a prima facie case
for investigation and prosecution, this Court directed the CBI to lodge a FIR
and initiate criminal proceedings against all persons named in the report of the
Additional District Judge and proceed against them.
The Union of
India/Directorate of Enforcement was also directed to pay a sum of Rs. 2 lacs to
the widow of the deceased by way of ex gratia payment at the interim stage.
Amendment of the relevant provisions of law to protect the interest of arrested
persons in such cases too is a genuine need.
There is one other aspect also which needs our consideration. We are conscious
of the fact that the police in India have to perform a difficult and delicate
task, particularly in view of the deteriorating law and order situation,
communal riots, political turmoil, student unrest, terrorist activities, and
among others the increasing number of underworld and armed gangs and criminals.
Many hard core criminals like extremists, the terrorists, drug peddlers,
smugglers who have organized gangs, have taken strong roots in the society.
is being said in certain quarters that with more and more liberalisation and
enforcement of fundamental rights, it would lead to difficulties in the
detection of crimes committed by such categories of hardened criminals by soft
peddling interrogation, it is felt in those quarters that if we lay too much of
emphasis on protection of their fundamental rights and human rights, such
criminals may go scot-free without exposing any element or iota of criminality
with the result, the crime would go unpunished and in the ultimate analysis the
society would suffer. The concern is genuine and the problem is real.
with such a situation, a balanced approach is needed to meet the ends of
justice. This is all the more so in view of the expectation of the society that
police must deal with the criminals in an efficient and effective manner and
bring to book those who are involved in the crime. The cure cannot, however, be
worse than the disease itself.
The response of the American Supreme Court to such an issue in Miranda v.
, is instructive. The Court said:
A recurrent argument, made in these cases is that society's need for
interrogation cut-weighs the privilege. This argument is not unfamiliar to the
Court. The whole thrust of our foregoing discussion demonstrates that the
Constitution has prescribed the rights of the individuals when confronted with
the power of Government when it provided in the Fifth Amendment that an
individual cannot be compelled to be a witness against himself. That right
cannot be abridged.
There can be no gain saying that freedom of an individual must yield to the
security of the State. The right of preventive detention of individuals in the
interest of security of the State in various situations prescribed under
different statutes has been upheld by the Courts. The right to interrogate the
detenue, culprits or arrestees in the interest of the nation, must take
precedence over an individual's right to personal liberty.
The latin maxim salus
populi est suprema lex
(the safety of the people is the supreme law)and salus
republicae est suprema lex (safety of the State is the Supreme law) co-exist and
are not only important and relevant but lie at the heart of the doctrine that
the welfare of an individual must yield to that of the community.
The action of the State, however, must be Right, Just and Fair
. Using any form of torture
for extracting any kind of information would neither be 'right nor just nor
fair' and, therefore, would be impermissible, being offensive to Article 21.
Such a crime-suspect must be interrogated and subjected to sustained and
scientific interrogation, determined in accordance with the provisions of law.
He cannot, however, be tortured or subjected to third degree methods or
dominated with a view to elicit information, extract confession or drive
knowledge about his accomplices, weapons etc.
His Constitutional right cannot be
abridged except in the manner permitted by law, though in the very nature of
things there would be qualitative difference in the method of interrogation of
such a person as compared to an ordinary criminal.
Challenge of terrorism must be met with innovative ideas and approach. State
terrorism is no answer to combat terrorism. State terrorism would only provide
legitimacy to 'terrorism'. That would be bad for the State, the community and
above all for the Rule of Law. The State must, therefore, ensure that various
agencies deployed by it for combating terrorism act within the bounds of law and
not become law unto themselves.
That the terrorist has violated human rights of
innocent citizens may render him liable for punishment but it cannot justify the
violation of his human rights except in the manner permitted by law. Need,
therefore, is to develop scientific methods of investigation and train the
investigators properly to interrogate to meet the challenge.
In addition to the statutory and constitutional requirements to which we have
made a reference, we are of the view that it would be useful and effective to
structure appropriate machinery for contemporaneous recording and notification
of all cases of arrest and detention to bring in transparency and
It is desirable that the officer arresting a person should
prepare a memo of his arrest at the time of arrest in the presence of at least
one witness who may be a member of the family of the arrestee or a respectable
person of the locality from where the arrest is made. The date and time of
arrest shall be recorded in the memo, which must also be counter signed by the
The following requirements to be followed in all cases of arrest or detention
(illegal provisions are made in that behalf as preventive measures as provided
for the first time in D.K. Basu vs State of West Bengal
- 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. (Section 41-B of CrPC)
- 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 he countersigned by the arrestee and shall
contain the time and date of arrest. (Section 41-B of CrPC)
- 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 and 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. (Section 41-B of CrPC)
- 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
lives outside the district or town through the Legal Aid Organisation 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
- 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 body,
must be recorded at that time. The Inspection Memo must be
signed both by the arrestee and the police officer affecting the arrest and
its copy provided to the arrestee. (Section 54 CrPC)
- 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 panel for all Tehsils and Districts as well.
- Copies of all the documents including the memo of arrest, referred to
above, should be sent to the Magistrate for his record.
- The arrestee may be permitted to meet his lawyer during interrogation,
though not throughout the interrogation. (Section 41-D of CrPC)
- 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 a conspicuous police board. (Section 41-C of CrPC)
Failure to comply with the requirements herein above 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.
The requirements, referred to above flow from Articles 21 and 22(1) of the
Constitution and need to be strictly followed. These would apply with equal
force to the other governmental agencies, also to which a reference has been
These requirements are in addition to the constitutional and statutory
safeguards and do not detract from various other directions given by the Courts
from time to time in connection with the safeguarding of the rights and dignity
of the arrestee.
Creating awareness about the rights of the arrestee would in our opinion be a
step in the right direction to combat the evil of custodial crime and bring in
transparency and accountability. It is hoped that these requirements would help
to curb, if not totally eliminate, the use of questionable methods during
interrogation and investigation leading to custodial commission of crimes.
Punitive and Monetary Measures
UBI JUS IBI REMIDIUM -There is no wrong without a remedy. The law wills that in
every case where a man is wronged and undamaged he must have a remedy. A mere
declaration of invalidity of an action or finding of custodial violence or death
in lock-up, does not by itself provide any meaningful remedy to a person whose
fundamental right to life has been infringed. Much more needs to be done.
Some punitive provisions are contained in the Indian Penal Code which seek to
punish violation of Right to Life. Section 220 provides for punishment to an
officer or authority who detains or keeps a person in confinement with a corrupt
or malicious motive. Sections 330 and 331, provide for punishment of those who
inflict injury or grievous hurt on a person to extort confession or information
in regard to commission of an offence.
(a) and (b) to Section 330
make a police officer guilty of torturing a person in order to induce him to
confess the commission of a crime or to induce him to point out places where
stolen property is deposited. Section 330, therefore, directly makes torture
during interrogation and investigation punishable under the Indian Penal Code.
These statutory provisions are, however, inadequate to repair the wrong done to
the citizen. Prosecution of the offender is an obligation of the State in case
of every crime but) the victim of crime needs to be compensated monetarily also.
The Court, where the infringement of the fundamental right is established,
therefore, cannot stop by giving a mere declaration. It must proceed further and
give compensatory relief, not by way of damages as in a civil action but by way
of compensation under the public law jurisdiction for the wrong done, due to
breach of public duty by the State of not protecting the fundamental right to
life of the citizen.
To repair the wrong done and give judicial redress for
legal injury is a compulsion of judicial conscience.
Article 9(5) of the International Covenant on Civil and Political Rights, 1966 (ICCPR)
provides that anyone who has been the victim of unlawful arrest or
detention shall have enforceable right to compensation
Of course, the Government of India at the
time of its ratification (of ICCPR) in 1979 had made a specific reservation to
the effect that the Indian legal system does not recognize a right to
compensation for victims of unlawful arrest or detention and thus did not become
a party to the Covenant. That reservation, however, has now lost its relevance
in view of the law laid down by this Court in number of cases awarding
compensation for the infringement of the fundamental right to life of a
- Rudal Shah v. State of Bihar;
- Sebastian M. Hongrey v. Union of
- Rajendra Singh v. Smt. Usha Rani;
- Saheli v. Commissioner of Police, Delhi
There is indeed no express provision in the Constitution of India for
grant of compensation for violation of a fundamental right to life, nonetheless,
this Court has judicially evolved a right to compensation in cases of
established unconstitutional deprivation of personal liberty or life, as said in
Neelabati Behera v. State
Till about two decades ago the liability of the Government for tortious act of
its public servants was generally limited and the person affected could enforce
his right in tort by filing a civil suit and there again the defense of
sovereign immunity was allowed to have its play. For the violation of the
fundamental right to life or the basic human rights, however, this Court has
taken the view that the defence of sovereign immunity is not available to the
State for the tortious acts of the public servants and for the established
violation of the rights guaranteed by Article 21 of the Constitution of the
Written by- Maryanka and Harshit
- 1995 Supp (4) SCC 450,
- (1966) 384 US436
- Chambers v. Florida, (1940) 309 US 227.
- (1997) 6 SCC 642.
- (1983) 4 SCC 141 : (AIR 1983 SC 1086)
- (1984) 3 SCC 339 : (AIR 1984 SC956),(I984)3SCC82:(A1R 1984 SC 1026)
- (1990) I SCC 422 : (AIR 1990 SC 513).
- (1993 AIR SCW 2366)
- Nilabati Behera v. State.