As the situation in north east Delhi remains tense following nearly a week of violence, the Delhi Police is under severe criticism for its response (or lack thereof) to the riots.

The allegations against the police includes not only inaction at the site of violence but also that police actively supported sections of mobs in pelting stones during riots.

On February 26, Supreme Court in its oral remarks called out the lack of independence and professionalism in the police force. Earlier, a special sitting of Delhi high court was convened at 12:30 am on the same day to direct Delhi Police to ensure safe passage of the injured victims to hospitals for immediate emergency treatment.

Over the past two months, as the protests against the Citizenship Amendment Act, 2019 have continued in Delhi and other parts of the country, the actions of police force have raised several concerns. News reports have shown police authority resorting to brutality, torture and firing of live ammunitions to control these protests.

Further, police inaction during the assault in JNU hostels and the recent shooting at Jamia raises several questions of police accountability.

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Within this context, questions that arise are: where does the police derive its power from? Are there any guidelines that the police need to adhere to? And, where exactly is the system failing to work for the purpose it was established for- protection of citizens?

Overview of the legal framework

Chapter X of the Code of Criminal Procedure, 1973 (CrPC) deals with ‘Maintenance of Public Order and Tranquility’.

Section 129 of the Code of Criminal Procedure, 1973 (CrPC) lays down powers of the magistrates and police officers to disperse ‘unlawful assembly’ or an assembly likely to cause disturbance of public peace. Further, as per Section 132 of the CrPC, the prosecution of a police officer for an act committed while dispersing crowds can only be initiated with the sanction of the state government.

The extent of the force that may be used and the procedure for the same is provided under Police Manuals of the respective states. It is under the aegis of these provisions that the police derive their power and have justified their actions in relation to anti-CAA protests even when they have bordered on being extremely brutal, resulting in civilian deaths.

It is important to note that the Precis on Crowd Control (2016) issued by the Union government restricts the use of firearms only to extreme and very exceptional circumstances where there is imminent and extreme danger to life and property.

The manual provides that no punitive force shall be used by the police and further commands the police personnel to aim low (at legs) and cease fire as soon as the crowd disperses.

Recent events illustrate that these guidelines, though capable of being interpreted strictly, have come to be misused and twisted to explain any and every use of force by the police, even where it has resulted in death.

Here is a snapshot of the range of actions reported to have been taken by the police while dispersing crowds over the last two months – Delhi police fired shots in the air to control protests, Delhi Police officers assaulted students in library, and Uttar Pradesh Police detained and tortured minors.

Lack of police accountability

At present, police across the country is more accountable to the political party in power than the civilians. Complex procedure and requirement of sanctions in initiating legal action against police officers, coupled with police’s disinclination to investigate these allegations against their peers, leave most of the atrocities unaccounted for.

National Crime Records Bureau (NCRB) statistics for 2018 reveal that out of the 89 cases registered against police officers for human rights violation, the police submitted the charge sheet in only 25 cases and not a single accused police officer was convicted.

As per the 2016 NCRB statistics, in the 209 cases filed against police officers for human rights violation, only 50 police officers were charge sheeted and no one was convicted.

Failure to establish an independent body to address civilian complaints against police authorities worsens such imbalance in police accountability. In 2006, the Supreme Court directed state governments to establish the Police Complaint Authority (PCA), an independent body to address complaints of police misconduct at state and district levels. Many states, including Uttar Pradesh and Andhra Pradesh have failed to comply with the directive, even after several directions from the judiciary.

In Delhi, Police Complaint Authority became functional in February 2019, however, the authority is currently involved in a legal battle between Lieutenant-Governor and Delhi government. Further, the authority lacks investigative body and power to penalise police officers involved in serious misconduct, relegating it to nothing more than a paper tiger.

Police reform

Governments across the world have been adopting different measures to ensure police accountability.

In Northern Ireland, human rights experts are invited in control rooms to assess and advice proportionality and necessity of police force while dispersing unlawful assemblies.

In New York, USA, civilians are appointed to investigate allegations of misconduct against police officers. Such measures should be explored by state governments and police department to build civilian confidence in functioning of the police.

Also read: Mukund Kaushal, Top Cop During Post-Babri Riots, Criticises Lack of Action Against Hate Speech

It is therefore recommended that police manuals be amended to strictly regulate the use of forceful methods of crowd control which involves use of batons, water cannons and tear gas; and to mandate prompt medical care at the site of assembly.

A serious discourse is required to ensure police accountability towards civilians. Police Complaint Authorities, as specified by the Supreme Court, must be established in every district and state and should be vested with the power to investigate and penalise police atrocities.

Police and law enforcement should act as an institution to protect and promote law and order in the society to empower voices from the society. A trained and accountable police force is crucial for a participative democracy to flourish. However, if the current state of affairs continues, it will only be a matter of time before we lose all semblance of a society governed by the rule of law.

Aditya Ranjan is a Research Fellow at Vidhi Centre for Legal Policy.