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[Burning Issue] Institutionalization of police brutality

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The institutionalization of police brutality, as an unofficial policy of the State, poses a serious challenge to every modern civilization. It doesn’t just raise obvious questions around respect for human rights and the rule of law but is also a serious threat to the survival of democracy in a state where the Constitution is supreme. This threat stares in our faces today.

While the debate around police reforms across the globe has slowly intensified, there is a lack of any meaningful discourse on the same in India. There is very little public outrage and, in many cases, strong public support for police misconduct. It is the failure of the citizenry to meaningfully engage with the State on critical and key issues that have led to such an unfortunate development. Let us critically analyses key issues with the help of several recent domestic developments.

Understanding police brutality

  • Cases of custodial deaths, extra-judicial killings, torture, and violence against protesters, are all illustrations of this form of brutality.
  • Methods of torture by the police include inhuman, degrading and barbaric practices that fall squarely within the description of third-degree torture.
  • These are not sporadic incidents of police brutality, but appear to be part of the police administration machinery and have been normalized to an alarming extent in society at large.

In complete defiance of the Constitution and the laws

  • Extra-judicial killings by the police, for instance, are legally permitted and do not amount to a criminal offence in only three types of cases:
    1. when it is caused in the exercise of the right to private defense under Section 96 of the Indian Penal Code (IPC).
    2. when it is caused under Section 100 (when the right of private defense of the body extends to causing death) or Exception 3 of Section 300 of the IPC (when the public servant exceeds his power for the advancement of justice).
    3. if it is necessary to exert force against the accused to arrest him for a crime punishable with death or imprisonment for life. This is mandated under Section 46 of the Code of Criminal Procedure (CrPC).
  • Constitutional provisions such as Article 21, which guarantees the right to life and personal liberty and Article 22 which grants every accused person the right to an advocate stand violated in cases of fake police encounters.

A collective failure

  • The rise in police brutality in India is due to the failure of three key stakeholders:
    1. the Parliament and the Executive (that is, the political component of the State),
    2. the Judiciary, and
    3. the citizenry
  • The failure of the parliament to decolonize statutes, remove unreasonable immunity granted to police officers under the laws and create foolproof legislations after due consultation from every stakeholder, is evident.
  • The failure of the executive to control and discipline the police force is equally obvious. Accountability for law enforcement misconduct is flawed, and has huge structural problems.
  • The judiciary has also failed in the sense that its judgments are given little importance and are virtually not implemented for all practical purposes by police officers on the ground.
    • For instance, in its landmark judgment in the case of Prakash Singh & Ors. vs. Union of India (2006), the Supreme Court issued several directives for police reforms.
    • 15 years since that judgment was delivered, no state or Union territory has fully complied with its directives.
  • Failure of implementation of landmark judgments: Landmark judgments like this therefore end up becoming good pieces of jurisprudential literature and only have a symbolic value.
    • It makes no sense when landmark judgments that prohibits the police to commit acts of torture and violence and yet, there are large scale violations of those judgments that take place regularly.

A citizens’ failure

  • Failure of the citizenry is critical: The failure of the State is a consequence of the failure of the citizenry to meaningfully engage with it and raise questions that are vital for democratic survival.
  • The political system is merely a reflection of its masses: As a key stakeholder, citizens form the backbone of any democracy and act as counter-narrative to forces that promote democratic backsliding.
    • Their actions and nature of engagements define politics and policies of the State.
  • In the case of police brutality there are three issues that the citizens have failed to engage with the State on:
    1. the rise in majoritarian politics,
    2. increasing corruption, and
    3. the rise in predatory capitalism.

Rise in majoritarianism

  • India is a democracy and not a rule of the majority: While democracy functions with the belief that the majority will continue to change with changing issues, majoritarianism, on the other hand, is characterized by an organized majority.
    • Majoritarianism is forged by introducing factors (such as religion) that make the division between the majority and the minority more definite and permanent.
  • Use the police force as a tool for political mobilization: Majoritarianism has led to huge transformation in the Indian political ecosystem. It has inter alia given birth to populist leaders and their politics of appeasement.
    • It is because of this rise in the latter that we now see a new tendency of the State to use the police force as a tool for political mobilization.
    • It is happening in Uttar Pradesh where the state government highlights encounters as its achievements on a Republic Day. The trend in UP has now spilled over to states like Assam and other areas.
    • In the communal riots broke out during the anti-Citizenship (Amendment) Act protests and post the police attacks on the Jamia Milia Islamia University campus, almost 53 citizens lost their lives.
  • All of the above instances are examples of how a majoritarian state suppresses the minority in order to reinforce and perpetuate the division on which its politics survives. Such a suppression is in the form of police brutality.

Increasing corruption

  • Police force is by far, the most corrupt institution in India. There are two kinds of corruption within the police force in this country:
    • One is the monetary compensation that police officers receive from common citizens to deliver preferential treatment in matters of law enforcement.
    • Second is a specific kind of political corruption in the form of receiving personal gains, career advancements and such other kinds of favors from their political bosses in return for acting or not acting in a certain way.
  • A report by IndiaSpend states how 28% of police respondents mentioned that political pressure is the biggest hindrance in police investigations.
  • Public outrage against corruption in the police force has been rare and discourse over its relationship with police brutality rarer still. Corruption within the police force is directly proportional to police brutality.
  • It is purely an economic model – the ones who pay will get away and the ones who don’t will either be met with state sponsored violence or eventually faces the wrath of an extremely hostile administration.
    • This is primarily also because of the huge powers and discretion that the police enjoy under our laws.

Support for predatory capitalism

  • The police force in India was formed under the British Raj through the Indian Councils Act of 1861.
  • The idea for a special police force was inherited from the East India Company, which had introduced the ‘Cornwallis System’ or the ‘Daroga System’ in 1764.
  • The company had brought in the Cornwallis system only to strengthen its hold over the Indian population and to check any act of conspiracy or revolution against the company.
  • This is evidence of the fact that the origin of the police force itself was to protect the capitalists and their interests and not prevention of crime.
  • Capitalism itself has undergone massive transformation. From being once regarded as a tool to prosperity, it has now become a means to oppress the working class and further deepen divides and differences among people.
  • The gap between the rich and poor is at an all-time high. Human relationships and social interactions are increasingly shaped by economic considerations through a cost and benefit analysis.

The role of the state in perpetuating capitalism

  • In a State where there is increasing level of competition, cops do policing only to serve the interest of the capitalist class and protect the ‘rule of the capital’.
  • The role of the State under a capitalist system has also changed. It has today assumed the position of a facilitator rather than a regulator. This is primarily because of its financial dependence on businesses.
  • For predatory capitalism to succeed the working class will have to be necessarily silenced. That’s when the capitalists, with the help of bourgeois politicians, use the police to propagate violence against the working class in order to suppress their voices of dissent.

The state of police infrastructure and capitalism

  • The state of police infrastructure in the country is also evidence of how the police exist today to further the interests of the capitalists.
    • The unequal distribution and subsequent utilization of resources for police infrastructure in Delhi vis-à-vis rural Bihar shows how we treat those who are at the bottom of the pyramid versus those at the top.
  • This also shows that support for predatory capitalism and resentment against police brutality cannot go hand in hand and are rather contradictory.
    • One cannot protest against police brutality without protesting against predatory capitalism and its excesses.
  • This has not been seen in India. Public outrage has therefore been misplaced, and will need an overhaul to tackle the problem more effectively.

The Way Forward

  • Curbing Criminalization of Politics: The criminal nexus with politics will have to be broken and reforms must start with the political system. Thus, there is a need for laws which debars persons with serious criminal cases from entering the assemblies and the Parliament.
  • Revamping Criminal Justice System: There is a need to incorporate the Menon Committee and Malimath Committee recommendations for devising a national policy paper on the criminal justice system. Some of the key recommendations are as follows:
    • Creation of a fund to compensate victims who turn hostile from the pressure of culprits.
    • Setting up of separate authority at the national level to deal with crimes threatening the country security.
    • A complete revamp of the entire criminal procedure system.
  • Independent Complaints Authority: The Supreme Court has observed that there is a need to have an independent complaints authority to inquire into complaints of police misconduct.
  • The Model Police Act, 2006 requires each state to set up an authority comprising retired High Court Judges, civil society members, retired police officers and public administrators from another state.
  • Implementing the Supreme Court’s Directive: The Supreme Court’s directions in Prakash Singh case 2006 on police reforms must be implemented. The court laid out seven directives where considerable work in police reforms is still needed.

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