Blanket Cover of Disciplined Forces: Misuse of Khaki Collar

Article for Blog Post Writing Competition 2011 | by Mayank Marwaha and Kush Kalra


April 28th, 20119:29 pm


“Whenever human dignity is wounded, civilization takes a step backward. The flag of humanity on each occasion must fly half mast.”[1]

Introduction

The police has a very important role to play in a democratic set up of Government. They must win the confidence of people as it is the base on which the administration of society and protection of rights works in the society. The police is supposed to protect people and uphold the law, but if they themselves become criminals, then that is the end of a civilized society.[2]

Today, the impression of the police authorities on the society is more of a negative sense. They consider them to be the violators of people’s rights rather than protectors. There are certain incidents the country has witnessed which leave people with no other choice. Some of the examples of such incidents are of Irom Charu Sharmila a Manipuri who has faced torture by the disciplined forces in North-Eastern India. Another very fine example is that of the residents of Jammu and Kashmir who are terrorised by the army people who have been deployed there for the purpose of their security. Even the Allahabad High Court has observed that there is no doubt that there are some good policemen in the police force but they appear to be in the minority.[3]

Khaki collar refers to the people/authorities in the disciplined forces. It represents a class like military, police etc. They have lot many duties towards the society. In the mid-1800s, British soldiers in India began dyeing their white uniforms a dusty colour, using anything from muddy water to tea (camellia sinensis). Cutch (the same as the astringent catechu) was a reliable dye already in use for calico-prints in India’s cotton fabric industry. The dye created the colour khak, an Indian word for dust, earth, and ashes. In 1847, Sir Harry Burnett Lumsden brought in the first official khaki uniform.[4]

Abuse of Power by Khaki Collar

The abuse of power by an authority is considered to be done at the time when there is some infringement of right of a citizen by them. For the purpose of considering the ways in which the abuse of power is done, the rights of people must be known.

The Constitution of India provides certain Fundamental Rights under Part III to every citizen of the country. These rights are very important to a person for his mere existence in a free society. The concept of Human Rights has already been explained in chapter I and thus no reference of their relevance be made over here.

The Fundamental Rights are the rights which are provided to every citizen of the country, but, in addition to this there are certain other rights which are provided to prisoners, women prisoners’ etc. This is where mostly the disciplined forces misuse their khaki collar.

Arrest involves restriction of liberty of a person arrested and therefore, infringes the basic human rights of liberty. Nevertheless the Constitution of India as well as International reasonable procedure established by law under which alone such deprivation of liberty is permissible. Article 22(1) of the constitution provides that every person placed under arrest shall be informed as soon as possible the ground of arrest and shall not be denied the right to consult and be defended by a lawyer of his choice, and section 50 of the Code of Criminal Procedure,1973 (Cr.P.C.) requires a police officer arresting any person to “forthwith communicate to him full particulars of the offence for which he is arrested on other grounds for such arrest,” in actual practice these requirements are observed more in the breach.[5]

The following are the rights of an arrested person guaranteed under the Indian Constitution as well as under the Criminal Procedure Code. 1973:

  • · Right to be informed to the grounds for Arrest
  • · Right to be informed of Right to Bail
  • · Right of not being detained for more than 24 hours without judicial scrutiny
  • · Right to consult a Legal Practitioner
  • · Right to be examined by a Medical Practitioner
  • · Right of an Arrested Indigent person to free Legal Aid and to be informed about
  • · Right against self-incrimination
  • · Where the arrest is without a ‘warrant’

The Judiciary has pointed out in many cases that the Constitution of India guarantees fundamental right to every individual. It further pledges that the state will safeguard these human rights and protect citizens from any arbitrary infringement upon their liberty, security and privacy.

It has been held that “Imprisonment does not spell farewell to fundamental rights.”[6]

Encounter Killings by The Police Officials

National Human Rights Commission [hereinafter NHRC], came out with eight guidelines to check the encounter killings by the police officials. These guidelines are stated as follows:[7]

  1. As soon as information about death being caused in a police encounter is received, the officer in-charge of a police station must record it in the appropriate register.
  2. It is desirable that the investigation should be handed over to an independent investigation agency such as the Criminal Investigation Department [CID], if members of the encounter party belong to the same police station.
  3. Whenever a specific complaint is made against the police for committing a criminal act that amounts to culpable homicide, an FIR should be registered under appropriate sections of the Indian Penal Code and investigation should invariably be handed over to the CID.
  4. A magisterial inquiry must invariably be held in all cases where death has occurred in the course of police action. The next of kin of the dead person must invariably be associated with the inquiry.
  5. Prompt prosecution and disciplinary action must be initiated against the officers found guilty in the magisterial inquiry/ police investigation.
  6. The question of compensation being given to the dependents of the dead person will depend on the facts and circumstances of each case.
  7. No out of turn promotion or instant gallantry rewards will be given to the concerned officers soon after the occurrence. It must be ensured [at all costs] that they are given only after the gallantry of the officer concerned is proven beyond doubt.
  8. A six monthly statement of all cases of deaths in police action in the state shall be sent by the Director General of Police to the NHRC by January 15 and July 15 every year.

These guidelines were adhered in quite a number of cases by the Hon’ble High Courts and Hon’ble Apex Court also to examine the issue of encounter deaths. The rationale behind reproducing these guidelines is to punish the public servants who in the garb of their role as servants of public, cause harm to the same. Executive and even judicial sanctions against the life and liberty must be explicitly spelt out in legislative authority and is the essence of the civilized and constitutional governance. State shall not deprive any person of the life and liberty except in accordance with the procedure established by law.[8]

Conclusion

Keeping in view the misuse of powers by the police the Lok Sabha has cleared a 2010 amendment bill of Criminal Procedure Code. Police powers of arbitrary arrest, a big source of abuse of authority and corruption of khaki will be tamed through this. Government has worked on amendments to Code of Criminal Procedure which will reduce the scope of discretion by cops in taking person in custody. Under it a police officer will compulsorily have to keep a written record justifying the arrest or freeing an accused wanted in a crime that carries imprisonment up to seven years. The bill was passed by a voice vote after home minister P Chidambaram introduced it in the Lok Sabha. It is a step taken towards preserving the rights of the people. Such kinds of changes in the law are a unavoidable need. Every day we read about some atrocities.

SUGGESTIONS:

  1. A special penal law with very strict provisions must be enacted to deal with the atrocities which the disciplined forces personnel do on people. Simple departmental actions are not enough.
  2. D.K. Basu judgment laid down certain rights of the prisoners so this judgment should be given weightage whenever a case regarding atrocities is reported.
  3. People should be made aware of their rights in regard to such atrocities.
  4. Such awareness should be made in the educational institutions so that students can retaliate any such happening.
  5. Educational institutions should hold training of these disciplined forces with the help and guidance of BPRD (Bureau of Research and Development).
  6. There should be video recording done when an arrested person is being put to investigation by any of the disciplined forces so as to prevent him from any undue influence.
  7. The incomes of the disciplined forces personnel must be made transparent so as to reduce the level of corruption.
  8. Human Rights Commission are the toothless commissions working as they don’t have adequate powers to take care of such atrocities. So powers should be vested in them.
  9. Such atrocities cannot be unearthed without a strong base and proper links so for this purpose media should be given some protection

10.  Public should be given civilian rights specifically in regard to protection against atrocities by the disciplined forces.


[1] D.K Basu v. State of West Bengal, AIR 1997 SC 610

[2] Palok Basu, “Law Relating to Protection of Human Rights Under The Indian Constitution and The Allied Laws”, 2nd Edition, New Delhi, Modern Law Publications, 2007, p. 589

[3] Brij Lal Verma v. S.P., C.B.I., 2001 Cri LJ 2546

4http://timesofindia.indiatimes.com/home/sunday-toi/open-space/Why-is-the-colour-of-the-Indian-police-uniform-khaki/articleshow/1719969.cms as displayed on 15th October, 2010 at 10.00AM

[5] Woodroffe, “Commentary on Criminal Procedure Code, 1973”, 2nd Edition, 2nd Vol, Allahabad, Law Pulishers India (Pvt.) Ltd., 2005, p. 146

[6] Charles Sobraj v. Superintendent Central Jail, Tihar, New Delhi, AIR 1978 SC 1514

[7] Mandeep Tiwana, “Human Rights and Policing: Landmark Supreme Court Directives and National Human Rights Commission, at http://www.humanrightsinitiative.org/publications/hrc/humanrights_policing.pdf, as displayed on 21st October, 2010

[8] Article 21 of Indian Constitution, 1950

 

Article by-

Mayank Marwaha and Kush Kalra,

Students, Rajiv Gandhi National University of Law, Punjab

[Submitted as an entry for the Mightylaws.in Blog Post Writing Competition,2011]

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