By Yashwanth J

With the onset of nationwide lockdown following the COVID-19 pandemic caused by the coronavirus, various photos and videos have surfaced on the internet and the TV news channels portraying the highhandedness by the police officials against the flouters of the impugned curfew.

The Government’s Guidelines on the measures to be taken by the Government for the containment of the pandemic, warrant for criminal proceedings against individuals who violate the curfew. It, however, allows certain exceptions to the containment measures, whereby an individual can venture outside for his/her essential needs.

While those who come out on a whim to roam the free streets need to be advised to stay indoors, many videos were widely circulated on social media platforms and news channels where people were being yelled at, beaten with lathis for stepping out to buy basic items, including of doctors being assaulted and of vendors being harassed and wrung for bribes.

The Chief Minister of Telangana has even gone one step further when he motioned a stark attitude from the officials while issuing a stern warning to the public that he might issue a “shoot at sight” order if people continued to breach the lockdown.

The arbitrary use of force has caused much trauma to the common man stepping out to secure his essential needs or workers engaged in delivering essential services. The police were even accused of beating a man to death for violating the lockdown rule. These dramatic measures show the overzealousness of the police and their ignorance of prevalent norms.

The author endeavours to explore the norms surrounding the lockdown, the prevailing police brutality and other rights that encompasses it.

First, let us briefly look at the various provisions under the Indian Penal Code, 1860 (“IPC”) whereby the violator can be prosecuted for breaching the lockdown:

Section 188 mandates a duty on the public to abide by the Government’s orders.

Section 269 deals with a “negligent act likely to spread infection of disease dangerous to life”.

Section 270 deals with a “malignant act likely to spread infection of disease dangerous to life”.

Section 271 punishes violators who “knowingly disobeys any quarantine rule”.

While all the above offences are bailable and provide for imprisonment or fine or both, charging a person under Section 271 requires a warrant for it being a non-cognizable offence.

Powers of Police and Impunity

Chapter X of the Code of Criminal Procedure, 1973 (“CrPC”) deals with ‘Maintenance of Public Order and Tranquillity’. Section 149 of CrPC confers wide powers to the Police for preventing cognizable offences. Section 151 of CrPC empowers the police to arrest the violators without any warrant.

Section 129 of CrPC confers the power to use civil force for dispersing unlawful assemblies to the police officers, provided the command to disperse made by competent officers are not obeyed at the first instance. Moreover, the Police Manuals of the respective states provides for the extent of the force that may be used and the procedure for the same.

Furthermore, while Section 132 of CrPC provides that the prosecution of a police officer for an act committed while dispersing crowds can only be initiated with the sanction of the state government, Section 197 of CrPC grants wider impunity to them for any acts done in the discharge of their official duty.

There is no doubt that the violators of the quarantine rule can be booked and prosecuted under the appropriate provisions. However, a question arises as to whether such enforcements can be resorted to using of arbitrary force or excess measures.

Police brutality and Human Rights

Police brutality is, at the outset, a civil rights violation. When a police officer, while discharging his duty, misconducts or acts in excess with unnecessary force, such conduct amounts to brutality. Excessive force is not defined in any statute, however, it is usually considered to be beyond what a reasonable officer of the law would use under prevailing circumstances.

It is imperative to note that the abovementioned powers of police, coupled with the impunity available under law to the erring police officials, are of the widest amplitude and is subject to misuse if not duly accounted for. There were several instances where the police resorted to humiliating the violators by forcing them to do push-ups, crouches, etc., as they assaulted them.

This brings us to the humanitarian aspects of such measures. Albeit the balance between the fundamental rights of the citizens and maintaining public order or security of the nation is a delicate one, the right to live with human dignity guaranteed under Article 21 of our Constitution is quintessential to our existence.[i]

Moreover, India, being a signatory to various international human rights covenants, is also obliged to safeguard the dignity of her citizens.[ii] The Supreme Court in a catena of decisions has held the state liable for police misconduct, abuse of power and granted pecuniary compensations for violations of fundamental rights by the police.[iii] Furthermore, the Supreme Court has categorically held that the doctrine of sovereign immunity cannot be used as a defence under public law in cases of fundamental rights violations.[iv]

Need for Reforms?

As per the 2018 National Crime Records Bureau statistics, out of the 89 cases registered against police officers for human rights violation, only 25 officials were awarded charge sheets with zero conviction rate. Similarly, the 2016 NCRB statistics revealed that out of the 209 cases filed against police officers for human rights violation, only 50 police officers were charge-sheeted with no conviction.

The accountability of the police force flows from the provisions of the age-old Police Act of 1861. Since the advent of independence, the Act has more or less remained unaltered. India is a signatory to the 1979 Code of Conduct for the Law Enforcement Officials. The Government of India had issued its own Model Code of Conduct for the police in 1985. Section 4 of this Code provides: “In securing the observance of law or in maintaining order, the police should as far as practicable, use the methods of persuasion, advice and warning. When the application of force becomes inevitable, only the irreducible minimum of force required in the circumstances should be used.”

The Human Rights Watch in its 2009 report titled “Broken System: Dysfunction, Abuse and Impunity in the Indian Police”, highlights various human rights violations committed by the officials and thereby issued a clarion call for holding them accountable, inter alia, for arbitrary use of powers.

Even the Supreme Court in 2006 has instructed the Government to set up an Independent Police Complaints Authority at the state and district levels,[v] in response to the huge volume of complaints against the police and the prevalent lack of accountability. However, many states have failed to comply with the judiciary’s directives despite several directions.

All these call for a legislative review to the existing provisions and implementation of appropriate measures encompassing the accountability of the men in khaki.

Conclusion

Since the advent of lockdown, the police officials have attempted innovative ways to shame people about their violations, from making them pose with placards to various dramatic punishments of physical nature.

It is settled position of law that violation of fundamental rights due to police misconduct, can give rise to a liability under public law, apart from criminal and law of torts. The police must be made aware of the consequences flowing from unnecessary and excessive use of force. Moreover, the citizens too must be conscious of their fundamental rights in the light of such arbitrary exercise of powers by public servants.

Ergo, the violators could be booked under the appropriate sections and duly prosecuted for the same instead of subjecting them to harassment. The violators should be dealt with strictly, however, according to the law, it is clear that the law does not sanction the use of excessive force by these public servants to discipline the public.

Thus, it is of utmost importance that these officials are held accountable for their misconduct and disregard for human rights and use civil force to the necessary extent.

[i] Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[ii] G.A. Res. 217 (III) A, Universal Declaration of Human Rights, arts. 1 & 5 (Dec. 10, 1948); G.A. Res. A/RES/2200, International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights and Optional Protocol to the International Covenant on Civil and Political Rights, arts. 6 & 7 (Dec. 16, 1966).

[iii] Rudal Shah v. State of Bihar, AIR 1983 SC 1086; Bhim Singh v. State of Rajasthan; AIR 1986 SC 494; Sebastian M. Hongray v. Union of India & Ors., (1984) 3 SCR 544.

[iv] Smt. Nilabati Behera Alias Lalit v. State of Orissa & Ors., 1993 SCR (2) 581.

[v] Prakash Singh and Ors. v. Union of India and Ors., AIR 2006 SCC 1.

[The author is a third-year student at National Law University, Jodhpur.]