Covid-19: The second phase and Extraordinary powers of the police
Intern, Criminal Justice System Reforms Initiative
“When you have Police officers who abuse citizens, you erode public confidence in law enforcement. That makes the job of good police officers unsafe.”
— Mary Frances Berry
In this whole article, we will know the Powers of the police during the lockdown and how it is being abused, rather than helping people.With the onset of nationwide lockdown following the COVID-19-II pandemic caused by the coronavirus, various photos and videos have surfaced on the internet and the TV news channels portraying the highhandedness by the police officials against the flouters of the impugned curfew.
Abuse of powers
During the period of lockdown, People are not allowed to move freely in the locality and it is the duty of the police to ensure that people remain inside their houses. There is nothing new about lockdown, it keeps happening for various reasons in a country like India. While those who come out on a whim to roam the free streets need to be advised to stay indoors, many videos were widely circulated on social media platforms and news channels where people were being yelled at, beaten with lathis for stepping out to buy basic items, including of doctors being assaulted and of vendors being harassed and wrung for bribes.
A new video is coming out from Patna,Bihar where police is harassing, Abusing and beating the people with lathis while they have gone to meet their patients admited in PMCH. A police officials said that I'll book you under section 186 or 353 of IPC. video is from"Kargil Chowk, Patna".
Powers of Police: IPC
First, let us briefly look at the various provisions under the Indian Penal Code, 1860 (“IPC”) whereby the violator can be prosecuted for breaching the lockdown:
· Section 188 mandates a duty on the public to abide by the Government’s orders.
· Section 269 deals with a “negligent act likely to spread infection of disease dangerous to life”.
· Section 270 deals with a “malignant act likely to spread infection of disease dangerous to life”.
· Section 271 punishes violators who “knowingly disobeys any quarantine rule”.
While all the above offences are bailable and provide for imprisonment or fine or both, charging a person under Section 271 requires a warrant for it being a non-cognizable offence.
Powers of Police: CrPC
Chapter X of the Code of Criminal Procedure, 1973 (“CrPC”) deals with ‘Maintenance of Public Order and Tranquillity’.
· Section 149 of CrPC confers wide powers to the Police for preventing cognizable offences.
· Section 151 of CrPC empowers the police to arrest the violators without any warrant.
· Section 129 of CrPC confers the power to use civil force for dispersing unlawful assemblies to the police officers, provided the command to disperse made by competent officers are not obeyed at the first instance.
Moreover, the Police Manuals of the respective states provides for the extent of the force that may be used and the procedure for the same.Furthermore, while
· Section 132 of CrPC provides that the prosecution of a police officer for an act committed while dispersing crowds can only be initiated with the sanction of the state government,
· Section 197 of CrPC grants wider impunity to them for any acts done in the discharge of their official duty.
There is no doubt that the violators of the quarantine rule can be booked and prosecuted under the appropriate provisions. However, a question arises as to whether such enforcements can be resorted to using of arbitrary force or excess measures.
Is the use of force justified?
After analysing the case and legality of police actions in detail, further we will look over the violence created by the police during the lockdown and author question is why the action of the police is considered as violent inder the name of sovereign Function.
Presently, During the lockdown time when any person for any reason is out of his/her home, then some police is showing his cruelty and all his anger on that person without knowing the specific reason behind why they are coming out of their home and their brutality sometimes leads to death of that person like the Kolkata case of the milkman. As for the clear picture, a zomato delivery boy was beaten with brutality for delivering the order in lockdown which is a clear misuse of their sovereign power and their act is totally against the sovereign function.
Police have to leave the people out for essential needs
Essential goods are always necessary for all people to have it and at the time of duration, people need it to survive and as police were showing their brutal behaviour and beating up with lathis who comes out for the purpose of buying essential goods for their family so that they can eat and survive in this quarantine and lockdown time due to this people is being scared from the police action and lockdown them without even eating which finally paves way to death of person which is totally immoral and also not correct from the view of law.
Police can do so that they can check the bill of the purchased commodities when they will return after buying and this way police can control the person coming out for unnecessary reasons during this quarantine period.
Duty to protect the citizens, not to abuse their powers
Police and police function is considered as a sovereign function and any act performed under sovereign function will not be considered wrong and the police will not be liable but the function should be fair. Police have also been conferred with power under several provisions to serve the people and each individual in every circumstance whatever the situation is and in no condition police will be biased towards any particular person as per the noted provisions like – Article 14 (Right to Equality) means every person should be treated equally irrespective of gender, caste, colour, race, status etc.
Need for Reforms?
As per the 2018 National Crime Records Bureau statistics, out of the 89 cases registered against police officers for human rights violation, only 25 officials were awarded charge sheets with zero conviction rate. Similarly, the 2016 NCRB statistics revealed that out of the 209 cases filed against police officers for human rights violation, only 50 police officers were charge-sheeted with no conviction.
A public health crisis was diagnosed as a criminal law problem, and the police were tasked with the responsibility of maintaining order. The police in India normally enjoy wide discretionary powers and exercise them arbitrarily, particularly against marginalised communities. During the pandemic these discretionary powers were amplified. Any individual who did not have a satisfactory reason for being in a public space could be criminalised by the police under Section 188 of the Indian Penal Code.
A study by the Criminal Justice and Police Accountability Project of policing during the pandemic analysed 500 FIRs and 34,000 arrest records. It found that over 6,000 people were arrested solely for violating lockdown regulations and that over 4,000 people were arrested for allegedly minor, bailable offences such as gambling, alcohol possession and hurt. These arrests were made despite overcrowding in jails (thereby increasing the risk of outbreaks) as well as Supreme Court guidelines holding that arrest must be utilised as the last resort in criminal law, especially for minor infractions.
The police’s indiscriminate arrests disproportionately affected members of marginalised communities. Nearly 30% of the individuals arrested for violating lockdown regulations belonged to a Scheduled Caste, Scheduled Tribe or De-notified Tribal community and nearly 25% individuals were members of the Muslim community. Another 20% of the individuals belonged to Other Backward Class communities.
Thus, approximately three of every four individuals policed belonged to a marginalised community. Even essential workers such as meat sellers and vegetable vendors, otherwise exempt from criminalisation as per the Ministry of Home Affairs’ guidelines, were criminalised by the police. Every fifth individual against whom a FIR was filed under Section 188, IPC was a street vendor or a low-income shopkeeper. Of these individuals, at least over 45% were selling groceries, meat and dairy products.
These policing patterns indicate that the police cannot be considered rational decision makers who exercise their powers without bias. Their decisions are often informed by structural casteism, class prejudice and Islamophobia.
Supreme Court: Independent police complaints Authority
Even the Supreme Court in 2006 has instructed the Government to set up an Independent Police Complaints Authority at the state and district levels in response to the huge volume of complaints against the police and the prevalent lack of accountability. However, many states have failed to comply with the judiciary’s directives despite several directions.
Is it legal for police to beat the people who venture out with any reason during a lockdown? This topic in itself is showing both aspects i.e. Moral and legal. Actions of police and allowing them during lockdown to buy essential commodities respectively shows moral and legal values. The Police System from the very beginning is considered as a most important element of the society which helps in society regulation and security of each individual of the society with a formal prescribed way of handling and running the society.
As like everything has its two sides, Police has also two faces i.e. one who helps an individual and performs their duty in the interest of people and one who misuse their power to suppress the common people and always use coercion on people. Due to these, the whole police system is considered as corrupt and an enemy of people. So, to change the mindset of people, greater control over police was needed and if any police were using their discretion and violated some rules under the name of discharging sovereign function then that police should be booked for punishment under some provisions of law.
[i] Maneka Gandhi v. Union of India, AIR 1978 SC 597.
[ii] Rudal Shah v. State of Bihar, AIR 1983 SC 1086;
[¡¡¡] Bhim Singh v. State of Rajasthan; AIR 1986 SC 494;
[iv] Prakash Singh and Ors. v. Union of India and Ors., AIR 2006 SCC 1.