Libertatem Magazine

Police brutality and Exemption in India

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Powers under the law are immense and adequate and this does not extend to any form of physical violence. Under Article 246 of the Indian Constitution, ‘Police’ falls within the State List of the 7th Schedule, therefore it’s within the scope of the respective State Governments to form laws to regulate the police in their State. There is a strong federal character to police laws, India is largely a quasi-federal nation and the Central Government is also involved in the regulation of police forces. For violation of fundamental rights stated in part III of the Constitution, like the right to life and liberty, protection against arbitrary arrests and illegal detention, protection from discrimination and unequal treatment, the courts have repeatedly held the police liable under public law and have imposed pecuniary liability on the State as compensation for the harm caused. A series of Supreme Court judgments laid the foundational principles for holding the State responsible for police misconduct and abuse of power, making pecuniary compensation a major remedy for such violation of fundamental rights. The following points are clear from a perusal:

Firstly, It is clear that a violation of fundamental rights due to police misconduct can give rise to a liability under public law, apart from criminal and tort law.

Secondly, that pecuniary compensation is often awarded for such a violation of fundamental rights.

Thirdly, it’s the State that’s held liable and so the compensation is borne by the State and not the individual cops found guilty of misconduct.

Fourthly, the Supreme Court has held that the quality of proof required for proving police misconduct like brutality, torture and custodial violence and for holding the State in charge of the same, is high. It is just for patent and incontrovertible violation of fundamental rights that such remedy is often made available.

Fifthly, the doctrine of exemption doesn’t apply to cases of fundamental rights violation and hence can’t be used as a defence publicly law. Largely, the character of cases where the Supreme Court has interfered are of utmost police misconduct, like custodial deaths, torture, police brutality, and made disappearances. In many cases, the Courts have repeatedly ordered the State to compensate the victim and the victim’s family. There is no set principle evolved on how the quantum of compensation is to be calculated.

Quantum of Punishment: The police can be held liable for violating laws and rules through internal mechanisms of remedial action such as those established under the Police Act, 1871 or any of the other laws regulating them.

The public law remedy is the most commonly used platform almost to the exclusion of personal law remedies under tort. In private law, although the doctrine of exemption isn’t considered a defence, if it’s argued that the action of the police is in direct nexus and in course of the duty, it is still considered a defence under tort law. Private law remedies, therefore, are more suitable in cases where the explanation for action and evidence is more controversial and doubtful. Protection of fundamental rights of citizens from police excesses has largely been restricted to the court or the Supreme Court although even lower courts have jurisdiction to undertake these matters and pass orders of compensation. The burden of proof is much higher in public law, limited to cases of clear and gross violation of fundamental rights. Further, altogether cases of police misconduct, it’s the State which has been made vicariously susceptible to pay compensation and not the individual cops. Criminal law is additionally used as a remedy, and compensation is usually granted under such cases of police excesses. The procedural safeguard available to cops could be a hurdle while instituting criminal complaints against them. Although courts have held that sanction of the govt. under Section 197 of the CrPC isn’t required, it’s often a misused provision, preventing lay-persons from registering FIRs against them. Police excesses often cause harassment and injuries but may not necessarily amount to a violation of fundamental rights. In such cases, legal code and personal law based remedies are more suitable.

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