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Jayaraj And Bennicks Case: Long Due Amendments To Ensure Police Accountability And Render Justice

The recent case of custodial torture and death of father-son duo in Tamil Nadu has once again caused disappointment, distrust, and fear among the Indian citizens. We've always known Indian police force to use the power of their danda to make things work their way, however, does this power have any legitimacy and if not does the Indian laws hold the police personnel accountable for their illegitimate acts.

P. Jayaraj and his son Bennicks were arrested by the Shantakulam police on 19th June 2020 for violation of lockdown rules by keeping their shop open for more than the permissible time. The police tortured them so brutally that they took their last breath on 23rd June 2020. Such incidence of police brutality is not new in the country they have been occurring before independent India. This is because Indian police and laws acknowledge the authority of police over the public but never their accountability.

In a report by The Hindu from 2001-2018 over 1700 people faced custodial death while the reported cases were only 810 against which only 26 police personnel were convicted, this means conviction rate in cases of custodial deaths is less than 4%. This happens due to many reasons, one such was stated by the apex court in Shyamsundar Trivedi's judgment that in many cases police who are witnesses to the offence remain silent or give false statements to save their colleagues.

In other cases even though the police personnel is convicted they would be only facing giving out compensation as the punishment even for grave offence of custodial death. In another case of custodial death, Smt. Soubhagya vs The Chief Secretary, State Of Karnataka the High Court of Karnataka held that the compensation amount shall be recovered from the accused, no other punishment was given by the court.

In India, the police are governed by many acts like CrPC, Indian Police Act, IPC, and most importantly the government. In this blog how these machineries have failed in reforming the police and ensuring accountability has been discussed.

Hindrances to the Police Reforms in India:

During the period of emergency, police brutality went on to an all-time high when police personnel were behaving in such a brazen manner as if they are not accountable to any authority. As a response, the government appointed Shah Committee which stated in its report that police cannot be used to subvert the rule of law for political gain and asked the government to take considerable steps to insulate police from unlawful political interference.

Government as a response formed the National Police Commission with a view that NPC will review the current police system and also the changes since independence which should be inculcated in colonial era Indian Police Act of 1861. However, this proved to be an on-paper action only as out of 8 reports of NPC, none was implemented properly by the government which highlights that there is a deep-seated resistance for police reforms amongst politicians and bureaucrats as they don't want to lose superintendence over the police organizations.

When the cases didn't stop and protection of human rights became an international issue, Parliament to conform to international treaties established the Human Rights Commission under The Protection of Human Rights Act, 1993, and yet another false hope was given to hold police accountable. Although National Human Rights Commission has been working tirelessly for the protection of human rights by police brutalities, however, the government has not insulated itself from NHRC as section 11 and 32 of the act makes NHRC dependent on the government for its manpower and finance.

Furthermore, the NHRC has not been given the power to enforce its decisions. After the inquiry, if the commission finds the breach of human rights it can only advise the government to take action or provide compensation to the victim . The government is not bound to act on the advice given by the commission as there is no specific provision in law for the same except for the fact that they can go to higher courts but then the purpose of NHRC fails.

The problem doesn't end here, Commissions like NHRC is not sufficient in country of India's size as a result directions were given to form state commissions in every state but till now only 26 states have human rights commission and out of which also only some are functional as 10 states don't even have its chairperson.

As per the NHRC reports, the number of custodial deaths were increasing and again responding to these alarming issues many committees were formed and its reports were included in the landmark judgment of Prakash Singh v UOI . In this judgment SC gave 7 directives which could have transformed police system in India but again as stated above government officials and bureaucrats are reluctant to such reforms.

Though none of the directives were implemented thoroughly but of all, one directive was to form Police Complaint Authorities at every state and district levels with immediate effect, had it been implemented properly, the life of the father son duo would have been saved and PCA could have ensured police accountability however the case of PCAs does not differ from that of NHRC.

Only 17 states amended the police acts to form PCA and out of these also, PCA were not established at both district and state level. Another flout was even though the directives of the SC were clear that PCAs must have binding authority, only four police acts made it binding .

Any discussion regarding the reforms in the police administration is incomplete without discussing the antiquated law that is still in force in India, i.e. the Police Act,1861. This act was brought by the Britishers and is now the model act for every state's police force. During colonial time, this act was used to suppress the Indians by the use of force, and therefore there are no provisions for the punishment of police officials for their misconduct with the citizens. However, we are now the world's largest democracy and this means that there's an urgent need to put an end to the laws for suppression.

The present Police Act does not even talk about the accountability of the Police for any kind of misconduct, nor does it even mentions the offences committed by the police officials on duty, life the offence of unnecessary violence and brutality. Though police act, 1861 talks about the internal accountability of police officials to their seniors for the offences like cowardice, engaging in other professions, and unwarranted violence and the punishment is described for up to three months of salary cut and 3 months of jail, that too without the judicial intervention.

Moreover, there is no provision for the barbaric offences like custodial rape, brutality, and custodial death in the Act. The judiciary in the Vineet Narain case has provided guidelines and directions for fair trials of police officials outside the single directive mechanism but it was overturned by the parliament.

On April 30, 1998, Chief Minister of Uttar Pradesh Mr. Kalyan Singh in an open address for the police said in his speech do whatever it takes to catch criminal, I am here to protect you these kinds of statements gives an open hand to police officers and inflicts a sense of terror in the society. This cannot be changed until and unless we have sections like 197 and 132 of CrPC which gives protection to the police by the government from prosecution. We need the provisions where the judiciary can freely step-in conduct unbiased investigation and provide unbiased judgments against the police officials for the brutal and violent acts.

Conclusion and Suggestions:
Every day we lose many lives like Jayaraj because of police brutality and the police officers doing these brutal acts are not even being questioned by the government. As discussed above almost every step taken to hold police accountable has been failed because the government is not ready to lose control over the police and without independence of government, authorities like PCA and NHRC will fail to serve people. In order to ensure police accountability, the government urgently needs to amend existing provisions and should insulate itself from various authorities like PCA and NHRC.It is high time, the government should implement NPC recommendations and directives given by the Apex court concerning police reforms.

In many cases, police have caused the death of people and have at most got suspended or transferred. Causing death is a criminal offence and every police officer causing death should be tried under criminal law and protection given to them under section 197 and 132 of CrPC. should be revoked. Amendments shall be made in the Police Act to increase the quantum of punishment given for offences of grave nature like custodial violence and custodial death in the police act. Two separate departments shall be formed for investigation and maintaining law and order. Almost 90 percent of the police force does not receive training of human rights, hence it should be made mandatory before joining the force.

Many jurists and criminologists are suggesting for a new anti-torture law, however, without these amendments, it will again fail to hold police accountable and render justice. Hence before proposing new law existing laws must be amended in such a way that it supports the new proposal instead of standing against and the government should insulate itself from police complaint authorities and decisions taken by these authorities should be made binding on the government as well.

Written By:

  1. Harshul Khadiya
  2. Ishita Nagori

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