The Law Behind the Lathi

The images of police brutality you have witnessed during this lockdown point to a systemic failure. We tell you how. We tell you what must be done for lasting police reform. We tell you why it isn’t being done. An essay by Avi Singh.

The onus of enforcement of the lockdown and quarantining is on the police force. The police, often rightly, have been strongly criticized for the use of disproportionate and arbitrary force in the implementation of the lockdown, but with little understanding of the fact that the law, or the lack thereof, has contributed to their ham-handed response. 

The issue is two-fold – 

(i) Very little thought has been given to the legislative framework through which the police can enforce the lockdown, and 

(ii) there is little provision for transparency or accountability when it comes to scrutiny of their actions.

The Central Government, for the most part, has used the National Disaster Management Act, 2005, (DMA) in order to stitch together a legal framework for appropriating the authority to declare a national lockdown without new legislation, as well as for enforcing the lockdown. 

However, the Act was arguably not designed for pandemics, and certainly not for the breadth of directions which not only state and central officials, but also private companies and individuals have to obey. It certainly didn’t envision a centralized response.  

More significantly, the DMA does not prescribe a primary role for the police. There is a separate National Disaster Relief Force. A court can only accept a complaint filed under the DMA if filed under the authority of the official issuing the appropriate order, akin to other regulatory acts. This differs from the Indian Penal Code, where the police can file a charge sheet in almost all cases directly in the court. Similarly, like with other regulatory laws, under the DMA the police may investigate, but do not have the power to bring the case to a court, as they haven’t in fact been authorised to do so by any government. Further, given the prescribed sentence, the offences are non-cognizable, and thus a magistrate’s permission is needed before arrest or investigation.

The other Act that has been deployed for some aspects of the government’s pandemic response is the pre-independence Epidemic Diseases Act, 1897. For instance, it is under this Act that several state governments, and the Central Government have issued ordinances against attacks on health workers. This Act states specifically that any person disobeying any regulation or order made under the Act is “deemed to have committed an offence punishable under Section 188 of the Indian Penal Code (IPC).”

This again is problematic. The law under Section 188, as it has evolved from 1897, requires the person whose order has been violated - presumably the State or Central government official, in this case - to submit a complaint in writing to the police before a FIR can be registered. In addition, Section 195 of the Criminal Procedure Code requires that any offence under Section 188 receive the sanction of the district or state government before a case can be brought to court. The police do have the power to arrest here, (with the usual limitation that, unless preventive, notice under Section 41A CrPC must be served as it is an offence under 7 years) but they cannot register a FIR under Section 188 IPC. 

Despite this, police personnel have been filing FIRs under Section 188 IPC. A former DGP of Uttar Pradesh filed a PIL in the Supreme Court of India against this but the Supreme Court has brushed it aside stating, informally, that the police has no other way to enforce the lock down. However, the challenge remains, and the police will be hard pressed to secure convictions pursuant to these FIRs. Instead, the government should have passed appropriate legislation with specified powers, and the ability to enforce the lockdown through all agencies of the government, without resorting to violence – such as through fines. 

Similarly, the widespread use of Section 144 of the Criminal Procedure Code to enforce curfews to complement the lockdown, and the direction to do so under the Disaster Management Act, is a gross misuse of the provisions of the section. In Noida, in the issuance of Section 144 CrPC orders, for example, for nightly semi-curfew, the Commissioner of Police has gone further and issued orders making it mandatory to install the Aarogya Setu app. 

Section 144 gives district authorities and commissioners of police the ability to issue emergency orders restraining assembly and not one which contemplates a semi-permanent state restricted movement. It is designed to be used for keeping the peace if a breach of the same is contemplated, not to fashion population control measures in a health emergency. However, the National Disaster Management Guidelines for Lockdown 4, for instance, direct district authorities to issue orders under section 144 CrPC to enforce a 7 pm to 7 am quasi curfew – with movement allowed only where essential, sanctioning the misuse of the Section.

Throughout the lockdown we have seen images and videos of police brutality. While a part of this may be attributable to the lack of requisite legal enforcement mechanisms, as discussed above, it is by no means a problem specific to lockdown enforcement. In addition to lack of specific powers, there is a very poor system of transparency and accountability, and such a system is needed to incentivize policing in accordance with the rule of law and to penalize use of force and other abuses of authority. 

As far back in 1978, in Maneka Gandhi vs Union of India, the Supreme Court sought to rein in abuse of police authority by decrying arbitrary power outside the scope of the law. In 2006 former DGP Prakash Singh filed a Public Interest Petition seeking police reform. The Supreme Court while considering the petition referred to the eight reports of the National Police Commission set up in 1977 and found that all of them had been ignored. 

In its judgment, the Supreme Court called for a preparation of a model Police Act, and sought to lay down guidelines till such an act was brought into place. However, police reform continues to find no mention in the agenda of political parties irrespective of the strong critique of police overreach against political opponents when parties are out of power. The guidelines issued by the SC have been implemented half-heartedly and at a glacial pace. The guidelines require the setting up of a Police Complaints Authority (PCA) to look into complaints, both at the state and district levels. As mentioned above, the governments that have set up Police Complaints Authorities, have done so belatedly and the powers granted to them vary greatly. Therefore, their effectiveness has been limited thus far. The powers of PCAs need to be set forth in appropriate legislation, and their disciplinary powers made compulsory.

According to a report by PRS India, two states had not even made laws or issued notifications regarding setting up of a PCA as of August, 2016. In most other states the composition of the body was not in conformance with the Prakash Singh judgment. For instance, in Bihar and Gujarat, the PCAs only had government and police officials. Further, in many states, the recommendations of the PCA are not binding on the police, and there is no mechanism for enforcement of these recommendations.

A Niti Ayog Report in 2016 noted that Jammu and Kashmir had sought deferral for forming the Police Complaints Authority. In Jharkhand, Andhra, Madhya Pradesh, Manipur, Nagaland, Odisha, West Bengal, and Delhi, the PCA is set up through a resolution rather than appropriate legislation. In Jharkhand, Madhya Pradesh, Manipur, Nagaland, Assam, Bihar, Chattisgarh, Gujarat, Haryana, Himachal Pradesh, Karnataka, Rajasthan, Tripura, and Uttarakhand the recommendation was not binding on the police authorities. In Madhya Pradesh, the district Police Complaints Authority was headed by the Minister in charge of the district and there was no state level board. In Uttar Pradesh, the PCA was not set up as it will result in “multiplicity of forum creating confusion in the minds of people.” In Bihar, the Bihar Police Act, 2007, only calls for “District Accountability Authority”. In Chhattisgarh, there is only a state level police accountability authority under the Chhattisgarh Police Act, 2007.

The use of force in police actions has been debated. Although there has been judicial progress on reprimanding death caused in custody, the regulation of non-lethal force as a last possible resort by police forces is not enshrined in law, either statutorily or judicially. There is almost no punishment to police officers doing so, and no civil or other penalties for the police forces they represent. The police forces, as institutions, have so far very rarely been made vicariously responsible for the actions of the individuals responsible, thus creating little incentive for reform.

In fact, police reforms have taken a step backward, in terms of accountability. Over time, in 53 cities in India, the power of the civilian authority to issue appropriate orders have been transferred to Police Commissioners, for a unified command structure, and to enable speedy responses to law and order situations. The cost of this purported efficacy is less accountability and civilian oversight. The Criminal Procedure Code and several penal codes were set up specifically such that civil authorities could exercise a check over police powers.

The lack of accountability is further exacerbated by the lack of any oversight in the presentation of a final report on the investigation by the police. Although the common trend around the world has been to have the prosecution independently analyse the investigation and present the indictment or final report to the court, in India, this power has been given under Section 173 CrPC directly to the police. The prosecutors have almost no role, and even when their opinion is sought by the police, it can be ignored. The Supreme Court in State of Gujarat v. Kishanbhai sought to set up a committee to analyse failures of investigation in cases that lead to acquittal, way back in 2014, but there has been little accountability on omissions, or worse, malafides in investigations. A police investigation must be subject to scrutiny, and an independent recommendation by the prosecution branch, to ensure that the power to bring a charge sheet, currently skewed heavily toward the police, is balanced appropriately. 

Perhaps, a pandemic is not the right time to start police reform, but when we see visuals of lathis being wielded, one must remember that no one armed the end of the teeth arm of the law with the power to fine on the spot, and nobody has built a system that incentivizes policing in accordance with the rule of law, and disincentives those that breach the law in carrying out their functions.

Avi Singh is an advocate who specialises in transnational law and serves as the Additional Standing Counsel for the government of NCT of Delhi.

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