New Delhi: India’s nearly two-month long lockdown, which was partially lifted on 3 May 2020, shone the spotlight on the country’s beleaguered police force like never before. Excluding Kashmir and parts of the north-east, curfews usually extend not more than a few days. There has not really been another instance where the police were handed the power—for such an extended period of time—to decide who could or could not be on the streets.

While the job of a policeman standing on the road in 12 hour shifts (or longer) does have its challenges, and every instance of a frayed temper cannot be judged to be abuse of power, there are enough examples and more that show that for Indian policeman, wielding the lathi is often a first choice rather than a last resort.

During the lockdown, police brutality resulted in the loss of a life in Bengal. People were beaten up in Gujarat and Maharashtra and even a leader of the ruling Bharatiya Janata Party was not spared in Bihar. In Nagaland a railway police officer assaulted a newspaper reporter and asked him if was Muslim because he asked an inocuous question. Anecdotal accounts of people, usually the poorest, getting beaten up at checkpoints across the country have circulated, as have videos on WhatsApp showing such purported assaults.

These assaults are often on-the-spot decisions by lower-ranked police officers. While the police do face challenges, including violence, in carrying out their duties, and they are authorised to use lawful force, it is not an argument that has to be made that the police in India tend to be lathi-happy.

Police excesses are class-sensitive. The middle classes, not to mention the rich, rarely if ever face police violence. The poor expect such violence as a matter of course. Debates around excess force in India usually focus on the most insidious aspect of police excess, i.e., extra-judicial killings or fake encounters. Much has been said and done about encounters.

The Constitutional Courts have intervened regarding encounter killings in Gujarat and Manipur. Maharashtra has seen its encounter specialists fall from grace. Still, in recent years the problem of fake encounters has spread to newer places like Uttar Pradesh and Haryana.

Focus on encounters, however, cannot be the answer to the unchecked use of violence by the Police. On the contrary, encounters are possible because use of violence/excess force—where the same is neither necessary nor required—on the part of police is considered normal in India.

Force Of Reason?

Is the use of excess force illegal in India? Of course. The only protection given to police personnel in Indian law is under Section 197 of the Code of Criminal Procedure, which mandates prior sanction from the government before a person can be prosecuted in Court for actions purporting to be done in their official capacity. Otherwise, a policeman thrashing somebody with a lathi is as liable legally as anybody thrashing anybody. Further, injuring or threatening to injure somebody to obtain a confession (Sec 330), or keeping somebody in wrongful confinement (Sec 340), that is, illegal detention are also specified as separate offences under the Indian Penal Code. These sections are, however, rarely invoked.

The usual victims of police violence are too poor to fight these battles. Those who have the wherewithal to do so are not the victims of such violence. Human rights advocates usually do not engage with cases at this level. This basic structural problem that defines the relationship between the coercive state and its citizens, has rarely been sought to be addressed.

In the case of Prakash Singh v. Union of India, the Supreme Court gave seven celebrated directives for police reform. These included security of tenure for Directors General of Police down to the level of the Station House Officer, who is an Inspector level officer. Other directives included separation of the law and order and investigative wings of the police, setting up of a Police Establishment Board, a National Security Commission and a Police Complaints Authority amongst others. Most of these recommendations pertain solely to higher ups in the police force.

The citizen will usually only come in touch with officers at the level of constable, head constable and sub-inspector. They are the ones manning the barricades, they form the bulk of the police force and carry out most functions. Yet, there is little legal initiative or even scholarship about effective training and protection of such officers.

The various Police Acts which govern the functioning and discipline of the police force in their respective states, all emphasise that the police officer is considered to be on duty 24 hours a day and seven days a week. It’s only recently that some states like Andhra Pradesh have decided to give policemen a weekly off.

The sight of a police car in Delhi trundling at the mandated patrol speed, windows down in the peak of summer because usage of the air conditioner would increase fuel consumption, is fairly common. This policeman must mediate, on average, a couple of parking disputes, fender benders, domestic violence complaints and other cases where nothing more than a quarrel has necessitated a call to the local police station. This policeman cannot be in a good place mentally. He is brutalised by his work conditions every day, not to mention those days when the officer might be penalised for stopping the wrong car, assaulted by somebody or face brickbats from an angry crowd.

No matter how justified a grievance may be or how desperate a crowd may be, it does not take much to imagine the threat perception of outnumbered police officers when faced with such violence. Anybody would act in self-defence and so do the police. The police, however, are not 'anybody'. They are supposed to be specially empowered, specially trained and when acting legally specially protected. In the Indian reality of this day, none of these conditions are met.

No Magic Bullets

It is no surprise then that the police behave the way they do. This is not a question of good or bad police officers. The question is simple, that is, what is the standard for the use of physical violence against a citizen by a representative of the state. This standard has to be high. Anything less than an imminent expectation of violence cannot be met by the police with any level of a physical response. To achieve that, what is required is training, for both the citizen and the police.

The citizen has to learn that he is not a subject. The police officer has to learn that he has no right to physically assault anybody. While proper training in law enforcement will go a long way in achieving this, a gentler approach to police personnel, including higher pay and better working conditions are also necessary. The law as it operates on the streets is a conversation. The terms of this conversation have to be changed.

Many of the problems of police brutality and the indignities imposed particularly on the disadvantaged by the police can be improved by addressing the structural problems that exist in various Indian police forces. None of this is to absolve police personnel regarding illegal violence inflicted by them on citizens. A citizen cannot go around assaulting people because he is stressed, and neither can the police.

However, the solution of the problem lies in making the police a better, more efficient and responsible force. This is the kind of bottom-up police reform that is urgently required. This is also the kind of police reform that unfortunately is not being talked about.

(Sarim Naved is a Delhi-based lawyer.)