Introduction and Background
With the recent incidents of police brutality in the United States of America (the act which resulted in the killing of George Floyd) and India (the series of acts which resulted in the death of Jayaraj and Fenix), it becomes imperative to bring in a mechanism in place to keep a check on the activities of the police, and also ensure that no arbitrary misuse of power takes place like in the aforesaid events.
Fundamental issues that come to light ‘when police brutality / arbitrary misuse of power is taken into consideration’ are:
- The absence of a check on the police authorities in the course of their activities,
- Penal sanctions for an act that may be construed as an arbitrary misuse of power.
A detriment further arises because of the immunity from proceedings granted to police officers, the nature of which is absolute in the United States, and a little less than absolute in India, but still does obstruct potential initiation of proceedings due to statutory immunity granted for actions in the course of public service.
The Change to be Brought About
Changes at the International Level
An initial step that should be taken to mitigate police brutality is amending the International Rules and Standards of Policing as well as the Human Rights Standards and Practice for the Police. This should be done to the extent of condemning unjustified and disproportionate acts of the police, and at the same time nations to redress such activities through penal sanctions, to the extent of extending of penal provisions under the respective Penal Codes for such offences as may be construed in subsequent judicial proceedings.
While it may be difficult to make the regulations under the former binding per se, owing to it being drafted by the ICRC, the latter, being put forward by the OHCHR, maybe, by virtue of it forming a part of State Practice over the years, make it imperative for countries to do the same. In this process, these international frameworks shall make it mandatory for countries to constitute monitoring committees to keep a vigil on police stations and maintain records to keep a record of inmates entering and exiting prison, and leave the manner of keeping a vigil subjective to the nations.
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A potential plan of action for curbing the issue at domestic levels
Coming to tackling this issue at a national level, it becomes imperative to set up a regulatory and monitoring committee under the executive, independent of the police, which would appoint two individual officers for each police station in the country, the appointment of which can be delegated to the respected State Executives through the State Cadet Examinations.
The role of these officers would be to monitor the regular activities of the police officers and create a monthly report of the same, which would also include a record of the register maintained for recording the entry and exit of inmates. These officers shall report directly to the State Executive, and the respective State Executives would report to the Central Executive. The reason for creating this regulatory body independent of the Police force is to ensure no overlapping or conflict of interests, which would pave way for dishonest practices.
Installation of CCTV Cameras at all points in a police station should be made obligatory, and abstention from doing the same should attract penal provisions to the extent of fines. In addition to this, countries should get rid of immunities (if granted) granted to police officers for actions in course of sovereign or statutory duty.
This allows for slipping away in cases of misuse of power. This should be replaced by amendments to the existing legislations such as the Police Act in India or new legislations in countries which don’t have legislation in place to govern the activities of police officers, so as to put forward a threshold of reaction to acts in contravention of the law, or an unwarranted uprising against the police officers. An action by the police officers within the prescribed threshold shall not be actionable, and a disproportionate reaction, beyond this threshold, shall attract provisions under the respective Penal Codes, not differentiating between a police officer on duty and a civilian or resident.
On the other hand, this model carries with it certain disadvantages that cannot be avoided. Firstly, the model does not ensure a complete absence of conflict of interest between the vigil officers appointed by the regulatory authority and the police officers, which may happen at all times due to unchecked negotiations between them, ensuring of mutual benefit.
Secondly, the scrapping off of statutory immunity granted will lead to increased encounters between the police forces and individuals and groups breaking the law, and due to the aforesaid threshold for response or pre-emptive action being subjective, there shall exist a matter of uncertainty, due to which potential misinterpretations of courts and tribunals would still pose as disadvantages for both the people as well as the police.
Thirdly, extending penal provisions under the Penal Codes to police officers in cases of disproportionate pre-emptive actions as well as reactions completely disregards the fact that certain instances involve police officers trying to consider a greater public good and stepping a little into a disproportionate reaction due to a potential threat that may seem to exist in certain cases. In such cases, it would not be justified to extend penal provisions applicable to civilians to them, owing to clear differentiation in circumstances.
Mitigating the Potential Disadvantages and the Way Forward
On a concluding note, it is to be noted that a binding code of conduct ought to be devised for the vigil officers to avoid unfair practices, and there have to be weekly checks on police stations that have to be facilitated by the regulatory authority devised, and a weekly report generated for the purposes of the same. The role for these checks has to be divided between the Centre, State and Districts, and maintaining this hierarchy, the weekly reports have to be reported to the Centre.
Further, a violation of the code of conduct by the vigil officers should attract penal sanctions, which should be prescribed in the code itself. Further, the extension of the Penal provisions ought to be made more concrete by virtue of defining clear thresholds of reaction, by making the same clear on parameters such as assessment of collateral damage, civilian casualty, the possibility of increased outrageous reactions, etc., which again have to be defined. Deadlines for submissions also have to be prescribed for submission at different levels, and delays should attract actions ranging from fines to reconstitutions. Salaries for these new positions should be paid out of the consolidated fund, and no further taxes should be imposed on the taxpayers.
About the Author: Tejas [2018-23] is pursuing B.A. LLB (Hons.) from National Law Institute University, Bhopal.