POLICE BRUTALITY UNDER THE VEIL OF STATUTORY AUTHORITY
Updated: Jul 29, 2020
[Authored by Charvi Dev, a 1st year B.B.A. LL.B. (Hons.) at Faculty of Law, PES University, Bangalore.]
“It is as much the duty of Government to render prompt justice against itself in favour of its citizens as it is to administer the same between private individuals."
- Abrahm Lincoln
Police is one of the most visible representatives of the democracy. In the hour of need, danger, crisis and difficulty, when a citizen does not know what to do and whom to approach, the police station and a policeman happen to be the most appropriate and approachable unit and person for him. The police are assumed to be the most approachable, accessible and interactive body of the executive.
However, more often than not, the police fall prey to the constant criticisms of their citizens on one hand and on the other, the skyrocketing expectations of their duties from the governmental bodies. To simply put it, the police often find themselves in a turmoil between citizens and the government. Nonetheless on the flip side, the repercussions of these two opposing tasks are numerous, which lead to the creation of various domain, with differing duties, responsibilities, jurisdictions and functions, vesting them with a lot of power. When the police are vested with so much responsibilities and duties, it might sometimes also lead to ‘abuse of power’. Police Brutality is one such abuse of the power vested with the police.
In the recent past there have been a lot of incidents across the globe, that have caused serious outrage among the citizens of the world. While one such is the infamous George Floyd’s case, where police brutality stemmed from the deep-rooted racism in the minds of the police. To give a national perspective on the same is the Jamia Islamia University’s police brutality during the times of Anti-CAA NRC rallies, which again stems from, what can be supposedly called, “Islamophobia”. While these are only some of the innumerous incidents of police brutality, that has come to light. There are many cases happening every day, where innocent citizens are subjected to such barbarism with no lawful justification whatsoever. And these cases have never seen the light of the day. Fortunately, one should thank the social media for bringing up such unheard issues to light. As we see more and more citizens becoming aware of such issues, we also see them being able to spread the awareness of the same with millions using their voice on social media platforms.
Recently, the country witnessed one of the most barbaric, atrocious and horrific incidents of police brutality in the district of Thoothukudi (Tuticorin), Tamil Nadu, in the case of Jeyaraj, and his son J Bennicks, aged 60 and 31 respectively. Given below are the graphic details of this unrestrained and absolutely harrowing abuse of power by the police.
TRIGGER WARNING: POLICE BRUTALITY AND SEXUAL VIOLENCE
On the 19th of June 2020, P. Jeyaraj and his son J. Bennicks were arrested by the Santhankulam police for allegedly keeping their shop open in the evening, in violation of the prevailing lockdown rules imposed. The father-son duo was then taken to Kovilpatti sub-jail where the police went on to beat the duo. The relatives were the witnesses to this savage act by the police. Bennicks, the son, was sexually assaulted in the jail where the police inserted foreign materials into his anus. Specifically, the police brutally inserted the ‘laathis’ or the batons into his anus triggering uncontrollable bleeding. It didn’t stop here, as the police ripped off his chest hair with their bare hands. On the other hand, the father, P. Jeyaraj was kicked on the chest several times causing copious bleeding.
Bennicks developed an internal hemorrhage and breathed his last in the Kovilpatti Government Hospital on Monday, the 22nd, evening at 9pm. Meanwhile, Jeyaraj allegedly developed a chest pain and was taken to the same hospital. Unfortunately, he too breathed his last the next morning, Tuesday the 23rd June.
Now to consider some of the testimonies, the Superintendent of Police, Arun Balagopalan, said “Bennicks had heart ailments and developed breathing issues in the jail. His father was running a high temperature when he was arrested and was admitted into the isolation ward in the Government hospital for ‘monitoring’.” However, the family and the relatives of the deceased have denied all of the alleged health issues claimed by the police. Another narrative by the police states that around 9.15 pm on June 19, S Murugan, the head constable and constable Muthuraj were on their patrolling duty in the area where Bennicks’ shop is located. “The shop was open after the curfew time imposed by the district administration due to lockdown. Jeyaraj, his son Bennicks and a few other friends were standing outside the shop. We told them to disperse. While others went away, Jeyaraj and Bennicks sat on the ground and abused us verbally and rolled on the ground. In this, they suffered internal injuries,” the FIR stated. The eyewitnesses from the neighbouring shops stated that the father-son duo was not arrested together, but separately. The son was taken into custody hours later from his father’s arrest. There is another revenge angle given to the same. Allegedly, the police barged into the father-son duo’s shop around 7.30pm, when there were still no lockdown rules being broken. A few days prior to this incidence, when one of the policemen asked Bennicks to sell a cellphone on EMI basis, Bennicks denied, perhaps because of the uncertainty involved. It is alleged that this brutal act by the police was to take revenge for the denial.
Moving on, to focus on the legal aspects of this case, the article now outlines the laws broken by both the parties. The deceased’s offences would be booked under Sec 188of the IPC 1860 if only the claims made by the police are true. Sec 188 of the IPC 1860 reads as “Disobedience to order duly promulgated by public servant.—Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” Those violating the lockdown orders can face legal action under the Epidemic Diseases Act, 1897, which lays down punishment as per Section 188 of the Indian Penal Code, 1860, for flouting such orders.Therefore, since Jeyaraj and Bennicks flouted these rules, they would be charged under this section. However, as aforementioned, this crime was not an offence punishable by death. And likewise, the father-son duo did not deserve to die or beaten brutally to death for an offense as trivial as this.
On the flip side, the laws broken by the police are many. Firstly, Jeyaraj and Bennicks were stripped off their human rights as outlined by the UDHR, 1948 and their ‘right to life’ as outlined by Article 21 of the Constitution of India, 1950. Article 21 of the India Constitution states, “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law”. Secondly, the police did not follow the due process followed during arrests. The Supreme Court of India in the case of D.K. Basu v. State of West Bengal laid down eleven principles that have to be followed during an arrest. These guidelines were adhering to Article 21 and 22(1) of the Indian Constitution, 1950, which needed to be strictly followed otherwise the official would be liable to the punished for the contempt of court and proceeding must be instituted against him.  Thirdly, they also violated the various provision of the Police Standing Order issues by the State of Tamil Nadu such as 686, the Treatment of Prisoners: Prisoners are not to be subjected to needless indignity or harsh treatment.
This situation reminds us of a famous quote by Al Sharpton, “We are not anti-police, we’re anti- police brutality”. This isn’t the first time the police have abused the power bestowed upon them. As aforementioned, this is just one of the many cases that has seen the light of the day, and where we, as citizens, can hope to get justice for many innocent lives like Jeyaraj, Bennicks and George Floyd. This case was once again a wake-up call, that police brutality is not just about ‘racism’, ‘Islamophobia’ or discrimination. But it is about the lack of accountability on behalf of the police. Hundreds of cases like this are conveniently brushed off under the carpet day in and day out. Police can easily get away with such atrocities as they are covered under defenses like the ‘statutory authority’.
In the Jamia Millia Islamia incident that took place, the police were not put under scrutiny for their actions. When asked a Supreme Court lawyer if what the police did was illegal, he simply had to say, “there is no law that prevents police from entering any place, including the university campuses if they need to do so,". He further went on to say, “"If police get information from any source that something wrong is happening or is about to happen, they are bound by the law to do everything within the limits of law to ensure that peace is not disturbed. University is not an exception in the eyes of laws that give power of arrest to the police." Another instance that shook the nation was in the ‘Priyanka Reddy rape case’, where the accused were killed in an alleged encounter days after the incident without being tried in the court of law or being convicted for the crime. The majority of the nation rejoiced that move by the police as it was said that ‘justice’ was given. However, despite the fact that this incident might have meant ‘the triumph of justice’, it is imperative to understand that it was merely ‘real justice’ if at all the accused were in fact the rapists. In no way was that action by the police the ‘triumph of legal justice’ as the police breached their statutory authority and went beyond the powers vested with them, by taking the laws in their hand. There were Human Rights agencies who did come forward to advocate the rights of the accused as the ‘due process of law’ had not been followed, however everything came to a stand-still soon after, followed by a complete silence with no action against the police officers being taken whatsoever. Many instances such as this have happened in the past where the police gain immunity through ‘statutory authority’ or ‘sovereign immunity’. However, the judiciary has also at many times since the 1980s, held the police accountable for their actions without covering them under sovereign immunity or statutory authority. Starting from the very famous ‘Rudal Shah v. State of Bihar’ in 1983, the judiciary has held many such police activities accountable. Sebastian Hongray v. Union of India, Bhim Singh v. State of J&K, Saheli v. Commissioner of Police, Delhi, Joginder Kaur v. State of Punjab, and State of Rajasthan v. Vidhyavati are just a few iconic cases that have set precedents in the field of police accountability.
Moving on, in order to increase the level of accountability of the police the Model Police Act 2006 was passed by the government. The central government set up the Police Act Drafting Committee chaired by Soli Sorabjee in 2005 to draft a new model police law that could replace the Police Act, 1861. The committee submitted the Model Police Act in 2006, which was circulated to all the states in 2006. 17 states (Assam, Bihar, Chhattisgarh, Gujarat, Haryana, Himachal Pradesh, Karnataka, Kerala, Maharashtra, Meghalaya, Mizoram, Punjab, Rajasthan, Sikkim, Tamil Nadu, Tripura, Uttarakhand) passed new laws or amended their existing laws in light of this new model law.
Some of the key features are as follows:
1. Responsibilities: The responsibilities of the police serve will include: (i) enforcing the law impartially, and protecting life, liberty and human rights, (ii) preserving public order, and preventing terrorist, militant and other activities affecting internal security, (iii) protecting public properties, (iv) preventing and investigating crimes, (v) providing help in natural or man-made disasters, (vi) collecting intelligence, etc. In police stations in urban areas and crime prone rural areas, investigation of heinous and economic crimes (e.g., murder, serious cases of cheating) will be carried out by a Special Crime Investigation Unit, headed by an officer at least of the rank of a Sub-Inspector. Officers of these units will generally not be diverted for any other duty.
2. Accountability: The state government will exercise superintendence over the police service. This will include laying down policies and guidelines, setting standards for quality policing, and ensuring that the police perform their duties in a professional manner. State Police Boards will be constituted in each state to frame guidelines, select officers who are qualified to be promoted to rank of DGP, and evaluate police performance. Police Accountability Commissions will also be set up by states to address complaints of police misconduct. However key police functionaries (e.g., DGP and police station in charge) will have a minimum tenure of two years unless they have been convicted by a court, or suspended from service, etc.
3. Section 152 of the Act says “A police officer shall, in addition to any other delinquent act or behaviour, as specified in the relevant rules, be liable for disciplinary action for any of the following misconduct:
(a) disobedience of lawful orders;
(b) neglect of duty;
(c) insubordination or any oppressive conduct;
(d) unauthorized malingering or absence from duty;
(e) act of cowardice;
(f) misuse of authority; or
(g) any act unbecoming of an officer.”
However, despite all this, instances such as these are thought provoking. How can the public demand accountability from the same institution that committed the crime? It seems like the principle of natural justice “nemo judex in causa sua” should be followed in such cases too. The maxim translates to, ‘one shouldn’t be a judge in his/her own case’. Similarly, the police should not be given the responsibility to investigate their own atrocious activities. If this is the case, then who should the helpless citizens go to? Whom should they approach for justice? What puts such activities to permanent rest? Just like any other crime, police brutality also calls for ‘absolute accountability’ as the only long-term solution.
 Phani Mohan K, Functions, Roles and Duties of Police in General.  What is Section 188 IPC, under which you will be booked for violating COVID-19 lockdown?, The Indian Express (March 24, 2020 10:09:01 pm), https://indianexpress.com/article/explained/explained-section-188-of-ipc-under-which-you-can-be-fined-rs-1000-for-violating-lockdown-6328022/  1997 1 SCC 416.  Id.  AIR 1983 SC 1086.  AIR 1984 SC 1026.  AIR 1986 SC 494.  AIR 1990 SC 513.   ACJ 28 at 32.   Supp 2 SCR 989 at 1007.  Source: Model Police Act, 2006; Unstarred Question No. 1451, Lok Sabha, May 3, 2016.  Sec 57, Model Police Act, 2006, (India).  Chapter XIII, Model Police Act, 2006, (India).
[Image credits: TheQuint]