Abuse of Police Power in India: Constitutional Safeguards, Judicial Oversight and Reform Imperatives

Abuse of Police Power in India: Constitutional Safeguards, Judicial Oversight and Reform Imperatives

1. Introduction

The Indian Constitution envisages the police as protectors of life and personal liberty (Articles 21–22). Yet, reports of arbitrary arrest, custodial torture and extra-legal violence remain persistent. Judicial pronouncements—from D.K. Basu[1] to MANIK[10]—have repeatedly censured such misconduct, framing a complex jurisprudence on the limits and accountability of police power. This article critically analyses that jurisprudence, measures it against statutory design (primarily the Code of Criminal Procedure, 1973) and evaluates the efficacy of existing and proposed reform mechanisms.

2. Constitutional and Statutory Framework

2.1 Fundamental Rights Matrix

  • Article 20(3) – protection against compelled self-incrimination.
  • Article 21 – substantive guarantee against torture and custodial violence, enlarged through judicial interpretation (e.g., Kuldeep[14]).
  • Article 22(1)–(2) – procedural restraints on arrest and detention, including production before a magistrate within 24 hours.

2.2 Code of Criminal Procedure (CrPC)

Sections 41, 41-A, 46, 49, 50 and 57 collectively circumscribe police discretion to arrest, prescribe notice-of-appearance, prohibit excessive restraint and require prompt judicial oversight. The Supreme Court, particularly in Arnesh Kumar[3] and Dr Subhash Mahajan[12], has converted these provisions into enforceable constitutional directives, reading them with Articles 14 and 21 to curb arbitrary deprivation of liberty.

3. Jurisprudential Evolution

3.1 From Joginder Kumar to D.K. Basu

Joginder Kumar[2] first articulated the “necessity” test for arrest, underlining that “no arrest can be made merely because the police have the power to do so.” Building on that foundation, the Court in D.K. Basu[1] issued eleven prophylactic guidelines—arrest memo, medical examination every 48 hours, right of relative notification, access to counsel, and control-room entries—thereby constitutionalising procedural safeguards and making non-compliance actionable under public law.

3.2 Consolidation of Liberty-Centric Arrest Jurisprudence

Twenty years later, Arnesh Kumar[3] addressed the systemic abuse of Section 498-A IPC. The Court mandated a CrPC § 41 checklist, recording of reasons for arrest and judicial scrutiny of necessity—extending Basu-style safeguards beyond custodial torture to pre-trial liberty.

3.3 Compensation and Strict Liability

In Nilabati Behera[4], the Court pierced the veil of sovereign immunity, granting public-law compensation for custodial death and holding the State to strict liability. Subsequent cases (State of Maharashtra v. Christian Community Welfare Council[7]) refined the doctrine, contemplating recovery of compensation from delinquent officers after due inquiry.

3.4 Excessive Force and Crowd Control

The dilemma of legitimate force versus excess was revisited in Anita Thakur[8], where both protestors and police were faulted—the former for violence, the latter for continuing a lathi-charge after regaining control. The decision underscores proportionality as the governing principle of police use-of-force jurisprudence.

3.5 Organisational Reform Mandate

Recognising that episodic guidelines cannot substitute systemic change, Prakash Singh[6] directed the establishment of State Security Commissions, Police Establishment Boards and independent Complaints Authorities. Notwithstanding uneven state compliance, these directions remain the judicial blueprint for depoliticising and professionalising Indian policing.

3.6 Contemporary Concerns

The 2024 ruling in MANIK[10] laments continued torture and emphasises the State’s failure to translate National Police Commission recommendations (mandatory judicial inquiry into custodial deaths) into statutory reality, reigniting the debate on “Who will police the police?”

4. Accountability Mechanisms and Remedies

4.1 Criminal Liability

Sections 302, 330–331, 342 and 376 IPC provide substantive anchors against custodial crimes. However, attrition occurs at the investigative stage itself—often owing to institutional solidarity and evidentiary opacity inside lock-ups. The Supreme Court’s stance in Perumal v. Janaki and Choudhury Parveen Sultana[15] clarifies that no prior sanction under CrPC § 197 is required when a police officer’s act is ultra vires his duties, countering the misuse of statutory shields.

4.2 Public-Law Compensation

Building upon Rudul Sah and crystalised in Nilabati Behera, constitutional courts routinely award compensation for rights violations. Such awards are distinct from damages under private tort law and rest on strict liability for State actors.

4.3 Departmental Discipline

Internal disciplinary proceedings, though available, are susceptible to bias, as illustrated in Sk. Ladla[17], where a court-mandated independent inquiry replaced a “farce” conducted by the same hierarchy. Judicial insistence on independence and transparency remains critical to the credibility of departmental action.

4.4 Judicial Review of Investigatory Abuse

Courts ordinarily desist from supervising investigations (Manohar Lal Sharma[20]), yet intervene where police power is exercised in bad faith or contrary to statute (State (NCT of Delhi) v. Sanjay[21]). The power to order C.B.I. or Special Investigation Teams thereby acts as an external corrective.

5. Critical Evaluation

5.1 Guideline Fatigue and Enforcement Deficit

While Basu, Arnesh and allied cases constitute a robust doctrinal edifice, empirical studies and NHRC data reveal recurring non-compliance. Absence of statutory incorporation and performance audits allows guidelines to atrophy into hortatory norms.

5.2 Legislative Gaps

  • No standalone anti-torture statute despite India’s 1997 signature of the UNCAT.
  • The Police Act 1861 remains largely unrepealed, perpetuating colonial command-and-control ethos.
  • Lack of uniform statutory backing for Police Complaints Authorities dilutes their impact.

5.3 Structural Impunity

Factors sustaining abuse include political interference, investigative opacity, and evidentiary bias (e.g., “police witnesses”). Even when courts grant compensation, personal accountability of officers is rarely enforced, weakening the deterrent effect.

6. Reform Imperatives

  1. Codification of Judicial Guidelines: Parliament should translate Basu, Arnesh and Prakash Singh directives into statutory mandates, attaching penal and service consequences for breach.
  2. Anti-Torture Legislation: Enactment of a comprehensive statute aligning with UNCAT, incorporating independent investigation, victim-witness protection and exclusion of evidence obtained by coercion.
  3. Strengthening Oversight Bodies: Provide constitutional or at least statutory status to State Security Commissions and Police Complaints Authorities to insulate them from executive influence.
  4. Technological Safeguards: Mandatory body cameras, CCTV in all custodial areas (with tamper-proof storage) and digital arrest logs to create objective evidence trails.
  5. Training and Cultural Re-orientation: Embed human-rights modules in police academies and link promotions to demonstrated respect for constitutional policing.

7. Conclusion

Indian courts have progressively constructed a sophisticated regime of procedural and substantive safeguards against police abuse. Yet, the persistence of custodial deaths and arbitrary arrests illustrates the limits of judge-made law when unaccompanied by institutional and legislative follow-through. The challenge, therefore, is less of doctrinal inadequacy and more of enforcement and political will. A synergistic approach—statutory codification, independent oversight, technological accountability and cultural reform—is imperative to reconcile police authority with constitutional morality and to ensure that the guardians of the law do not themselves become its violators.

Footnotes

  1. D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
  2. Joginder Kumar v. State of U.P., (1994) 4 SCC 260.
  3. Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273.
  4. Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.
  5. Sheela Barse v. State of Maharashtra, (1983) 2 SCC 96.
  6. Prakash Singh v. Union of India, (2006) 8 SCC 1.
  7. State of Maharashtra v. Christian Community Welfare Council of India, (2004) SCC (Cri) 27.
  8. Anita Thakur v. Government of J&K, (2016) 15 SCC 525.
  9. N. Sengodan v. State of Tamil Nadu, (2013) 10 SCC 465.
  10. MANIK v. State of Maharashtra, (2024) SCC OnLine SC ___.
  11. Satish Chandra Khandelwal v. Union of India, 1981 Del HC.
  12. Dr. Subhash Kashinath Mahajan v. State of Maharashtra, (2018) 6 SCC 454.
  13. Choudhury Parveen Sultana v. State of West Bengal, (2009) 1 SCR 99.
  14. Perumal v. Janaki, (2014) 5 SCC 377.
  15. Sk. Ladla v. State of West Bengal, 1992 Cal HC.
  16. Manohar Lal Sharma v. Principal Secretary, (2014) 3 SCC 172.
  17. State (NCT of Delhi) v. Sanjay, (2014) 9 SCC 772.
  18. Destruction of Public & Private Properties v. State of A.P., (2009) 5 SCC 212.
  19. Kuldeep v. State of Karnataka, 2023 Karn HC.