FACULTY OF LAW, UNIVERSITY OF ALLAHABAD

Police Atrocities in India

SUBMITTED TO:

FACULTY OF LAW, UNIVERSITY OF ALLAHABAD

SUBMITTED BY:

ROLL NO.: 10
SEMESTER X

SECTION A

SESSION: 2019-2020
 ACKNOWLEDGEMENT

I would specially like to thank my guide, mentor, Prof. (Dr.)

VijayaLaxhmi without whose constant support and guidance this
project would have been a distant reality.

This work is an outcome of an unparalleled infrastructural support that I

have received from Faculty of Law, University of Allahabad.

It would never have been possible to complete this study without an

untiring support from my family, specially my parents.

This study bears testimony to the active encouragement and guidance of

a host of friends and well-wishers.

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 LIST OF ABBREVIATIONS

AIR All India Reporter

U.P. Uttar Pradesh

SC Supreme Court

SCC Supreme Court Cases

TOI Times of India

4
 TABLE OF CASES

1 Dalbir Singh v. State of U.P. and Ors. 20,21

2 D.K. Basu v. State of West Bengal 21,22

3 Prakash Singh v. Union of India 26

4 Rasiklal Motilal Jaiswal v. B.M. Jadeja 24

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 CONTENTS

TOPIC PAGE NO.

CHATPER
➢
ACKNOWLEDGMENT 3

➢
LIST OF ABBREVIATIONS 4

➢
TABLE OF CASES 5

CHAPTER-I: INTRODUCTION AND RESEARCH 7-10

METHODOLOGY

CHAPTER-II:- Police Practices: Perpetuating 11-23

Injustice and Obstructing Access
to Justice

CHAPTER-III: HINDERANCES TO THE 24-29

PROSECUTION OF POLICE

CHAPTER-IV: DETAILED SUGGESTIONSTO 30-38

GALVANIZE POLICING SYSTEM
AND SAFEGUARD HUMAN
RIGHTS

CONCLUSION 39-40
BIBLIOGRAPHY 41

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 CHAPTER-I

INTRODUCTION AND RESEARCH METHODOLOGY

Introduction to the research project:

“Whatever career you may choose for yourself - doctor, lawyer, and teacher - let me propose
anavocation to be pursued along with it. Become a dedicated fighter for civil rights”

---Martin Luther King Jr.

India became independent more than 63 years ago, even now, the police in the country are still
mostly governed by the Police Act of 1861, despite the fact that all police commissions and
expert bodies set up from time to time to examine police problems, including the National Police
Commission, have recommended the replacement of this old and archaic law with a new piece of
legislation. As an eminent police researcher has rightly said: “The basic character of the Indian
police with its twin legacies of servility to the ruler and oppression for the mass of people”
survived well, with “neither the political class, nor the bureaucracy and least of all the police
itself, showing any anxiety to alter its established culture, ethos, role and functional styles.

The reason for persisting with the same police system is easy to understand. What suited the
colonial rulers matched the interests of the new ruling classes too, which emerged in these
countries after Independence. It was realized that as long as the executive continued to exercise
total unquestioning control over the police, it would be easy to misuse the police to further the
interests of the ruling classes.

Gradually, over a period of time, the standards of public life in India declined, with politics
becoming increasingly contentious and criminalized, leading to a perceptible decline in the
quality of control exercised over the police and increasing misuse of the police organization by
people in positions of power for partisan interests. Policing slowly but surely became
increasingly politicized. The position is best summed up in the words of the Parliamentary
Standing Committee on Home Affairs in India: “Today we have a police, which is politicized
and politically polarized. For it has become a pawn in the hands of its masters. In return, the
policemen get political patronage, which has become essential for their survival.”

The nexus between powerful politicians, bureaucrats and the police is now overt and \there are
myriad examples of this across the country.

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While India rightly touts itself as an emerging economic powerhouse that is also the world’s
largest democracy, its police forces—the most visible arm of the Indian state—are widely
regarded within India as lawless, abusive and ineffective.

A dangerous anachronism, the police have largely failed to evolve from the ruler-supportive,
repressive forces they were designed to be under Britain’s colonial rule. While sixty years later
much of India is in the process of rapid modernization, the police continue to use their old
methods. Instead of policing through public consent and participation, the police use abuse and
threats as a primary crime investigation and law enforcement tactic. The institutional culture of
police practically discourages officers from acting otherwise, failing to give them the resources,
training, ethical environment, and encouragement to develop professional police tactics.

Drawing on the extensive existing documentation of human rights abuses by the Indian police,
there are found five clusters of issues warranting attention, addressed in separate subsections of
this paper i.e.

• NON- REGISTRATION OF COMPLAINTS

• ADOPTION OF CORRUPTION PRACTICES IN POLICING

• ILLEGAL ARRESTS & DETENTION

• TORTURE AND OTHER MISTREATMENT

• EXTRAJUDICIAL KILLINGS BY POLICE

Traditionally marginalized groups are especially vulnerable to each of the aforementioned

abuses. Though stemming from the discriminatory biases of police officers, their vulnerability
is also the product of an abusive police culture in which an individual’s ability to pay a bribe,
trade on social status or call on political connections often determines whether they will be
assisted or abused.
Such abuses contribute to a climate of fear. Many Indians avoid any contact with the police,
believing not only that they will not receive assistance but that they risk demands for bribes,
illegal detention, torture, or even death. Facing a reclusive public, the police are unable to get
tips from informants or the cooperation of witnesses, which are both, critical to solving cases
and preventing crime. This, of course, creates a vicious cycle, as crimes go unreported and
unpunished and the pressures on the police to deal with rising criminality increase.

The government starts by recognizing the need to transform the institution from one that
enables and encourages officers to commit abuse to one that promotes human rights and

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 the rule of law, without exception.
A critical step is holding abusive officers accountable. Those who commit torture or other
abuses must be treated as the criminals they are. There cannot be one standard for police who
use violence and another for average citizens. At the same time, the incentives must change for
police officers. Officers facing suspension if they disobey illegal orders, or fail to meet their
superiors’ expectations to solve crimes without the necessary means, have little incentive to
abstain from abuse. In the long-run, a sustainable drop in police abuses requires an overhaul of
archaic police laws and structures. Investment in training, personnel and equipment is critical
to building the professional, rights-respecting police forces that an emergent India deserves.

Research methodology of the project:

The research methodology adopted by the researcher is a doctrinal research. However the
researcher with a view to compliment and substantiate his research paper corroborated his study
with other forms of legal research such as comparative legal research, case studies and also
critical analysis. It also throws light on the list of study materials and data and their sources,
procured by the researcher as the instrument to conduct the research. Comparative legal research
enabled the researcher to critically appreciate and compare the legal interpretations of various
courts.

Problem of the Project:

The project work done by the researcher mainly revolves around the police atrocities in India.
India has too many laws that make an ordinary vice a crime. eg vices like gambling, liquor,
prostitution etc are crime which policemen are required/empowered to reduce. How by arresting
those who supply/consume liquor/drugs, by arresting those who gamble and/or provide gambling
facilities, and by arresting prostitutes, clients and pimp. This increases burden on policemen, and
also gives bad policemen a wide opportunity to collect bribes. And when collecting bribes is not
easy, the policemen indulge into atrocities to maximize the bribe money.
The defunct intellectuals in India, in a class of their own, believe that by making laws against
vices like drugs, liquor, gambling and prostitution, and by empowering policemen to arrest

9
drug/liquor addicts/suppliers, gamblers, prostitutes, clients etc can reduce these crimes. This
defunct approach towards vices has only resulted into a rampant increase in police atrocities in
India.

Aims and Objectives:

The aim of this project work is to present an overview on the topic “Police Atrocities in India”.

The objectives of the project are as follows:

1. To study the reasons behind the brutality committed by police.

2. To study the impact of the brutality committed by the police.
3. To make recommendations or find out possible solutions to stop the brutality of the
police.

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 CHAPTER-II

Police Practices: Perpetuating Injustice and Obstructing Access to Justice

Police practices that cause injustice to the poor and obstruct their access to justice are many
and their incidence differs from region to region. However, a few major ones and which are
somewhat common to all parts of India are discussed here under the following broad heads:

1. NON- REGISTRATION OF COMPLAINTS

Non-registration of their complaints is the most common, serious, frequent and widespread
grievance of poor and disadvantaged people in India.
The process of criminal justice starts with the registration of information by the police about
the commission of a crime. Non-registration of a case ends the process of justice then and
there. It violates the canons of justice in two major ways. One, it shuts the doors on the victims
of crime to get justice. Two, it allows the criminals to escape justice. It also adds to the climate
of fear and insecurity. When the criminals find that the crimes are not registered, they get
further emboldened to commit more crimes. When a large number of persons, after committing
crimes, are allowed to get away and justice is not meted out to victims, it results in eroding the
faith and confidence of the public in the effectiveness of the police system.

In India, registration of complaints is mandatory under law, but even then a large number of
complaints are not registered. The Uttar Pradesh Police Commission of 1960-61 reported the
following malpractices of the police in recording complaints (FIR).1
i. “Non-recording of First Information Report i.e. concealment,
ii. Distorting facts with a view to lessening the gravity of the offence i.e. minimization,

iii. Introduction of new facts and distortion of facts in order to create evidence against the
accused or for implicating innocent persons, and
iv. D e m a n d of money or consideration for recording or prompt recording of report.”

10 years later, again in the same state, it was unanimously admitted before the Uttar Pradesh
Police Commission of 1970-71 by all Station Officers and Circle Inspectors interviewed by them
that concealment and minimization of crime was commonly done by them and the Commission
found “no reason whatsoever to doubt the truth of their admission.”2

1
Cited by the Uttar Pradesh Police Commission, 1970-71, Superintendent, Printing and Stationery, UP, India, 1972, in its Report, p 10
2
Report of the Uttar Pradesh Police Commission, 1970-71, Superintendent, Printing and Stationery, UP, India, 1972, p 13

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In a study on the “Image of the Police in India,” over 50% of the respondents mentioned ‘non
registration of complaints’ as a common malpractice in police stations. 3 One of the most
eminent police officers from India, who was also a member of the National Police Commission,
had the following to observe: “Now we come to the extremely widespread evil of non
registration of cognizable offences….. The poor and weaker sections of the society who live in
villages are … the main victims of this evil.”4
The police have developed numerous ways to avoid registration of complaints. It is easy for
them to practice these while dealing with poor people, who are not aware of their rights or lack
the ability to prevent violations. One common practice is to intimidate and threaten the
complainant to dissuade him from registering his complaint. He is accused of fabricating the
case or told that the case is full of lies and will not hold out in the court of law. One subterfuge
employed is to make pretence of registering his complaint without actually doing so. This is
done by making an entry in the General Diary of the police station and giving the complainant
a copy of that entry. The complainant goes under the false impression that the police have
registered his complaint while in reality, they have not done so. Sometimes the complaint is
not registered on the ground that the offence has occurred in the jurisdiction of some other
police station.

If registration of complaints becomes unavoidable, the gravity of crime is sometimes

minimized. For example, an offence of robbery is reduced to an offence of theft or burglary or
an attempt to murder becomes a case of grievous hurt.

Proper and prompt recording of FIR and in time is of great evidentiary value under the Indian
system of jurisprudence. The police know it and sometimes add or delete the names of suspects
or witnesses or deliberately introduce wrong details in the FIR to mislead the investigation in
favor of the rich or influential people.
One major reason for the existence of this evil is that police performance is evaluated on the
basis of crime statistics. The department as well as the government is very keen to report that
crime is under control. One way to do so is to covey the government’s intentions to the police.
This is generally done very discretely, but sometimes even brazenly. One example of such
brazen attempt was seen recently in the state of Uttar Pradesh in India, where instructions to
bring down the crime figures were given to the police. “The Chief Minister, to drive home the
message, suspended quite a few officers of the rank of SP and DIG. What followed was
suppression and minimization of crime on a scale never before witnessed in the history of
independent India.”5
Later, the UP government inserted advertisements in the newspapers, extolling the Chief
Minister for her achievements, including that of bringing down crime in the state by 69% in
less than a year of her rule.

3 The National Police Commission, Government of India, Fourth Report, June 1980, p1
4 Saxena, N.S, India: Towards Dawn in Law and Order, 1985-1994, Rohilkhand Publications, Bareilly, UP, India, 1994, p 164

5
Prakash Singh, “Best Bakery or Mockery”, The Pioneer, dated July 12, 2003

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Incidence of crime and conviction figures is used to evaluate the performance of the police
station staff. This gives rise to questionable methods employed by them to bring down the
crime figures and to secure convictions by using means- fair or foul.
Corruption is another important reason for this practice. The accused bribes the station officer,
who ensures that the case is either not registered or the facts are twisted to save the guilty. If
the complainant or the accused happens to be poor, he suffers because of his inability to bribe
the police station staff.
Heavy crime load and inadequacy of staff also encourage non- registration of complaints.
Crime keeps on increasing but the strength of the police station does not increase
correspondingly. Consequently, the existing investigating staff comes under heavy pressure
and one way of avoiding additional investigation work is not to register complaints.
The police departments in different states have occasionally launched drives to ensure free and full
registration of complaints. Whenever such drives are launched, crime registers a big jump. Increase
in crime figures results in an outcry in the press and the legislature, causing considerable
discomfiture to the government. The police then revert to the old evil of concealing crime by not
registering it. Controlling crime by artificially manipulating crime figures only results in denying
justice to many, particularly to the poor and the ethnic minorities.
An important initiative to deal with the problem was taken in India when the Government
introduced the new Code of Criminal Procedure in 1973 to replace the old Code formulated
during the British days in 1898. The new Code introduced two new provisions in law. One
made it mandatory to provide a copy of the FIR to the complainant free of cost. The other laid
down that any person aggrieved by a refusal on the part of the officer in charge of the police
station to record his complaint could send its substance in writing to the District
Superintendent of Police, who would then take necessary action to ensure investigation of the
case.

The initiative did not succeed in curbing the malady. The malpractice still exists as has been
shown above. None of the two new provisions in law was of a penal character. The Law
Commission of India examined the subject and recommended the insertion of a specific penal
provision in the Indian Penal Code to prescribe that the officer in charge of the police station
refusing or without reasonable cause failing to record the FIR would be punished with
imprisonment for a term of one year or with fine or with both. The Government did not accept
the recommendation.
Recommendations made to deal with the problem include (i) increasing the strength of
investigating officers in the police stations, (ii) basing evaluation of police performance on
criteria other than crime statistics, (iii) improving the quality of supervision exercised over the
work of the police station staff and (iv) making non registration of a citizen’s complaint a
specific penal offence either in the penal code or in the Police Act.
These recommendations can work, but only if there is no pressure from the political executive
on the police to show ‘good results’ on the crime front.

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 2. ADOPTION OF CORRUPTION PRACTICES IN POLICING

A field study of corruption faced by the common man in India (March - April, 2002) revealed
that the police was by far the most corrupt of the ten sectors of public domain (like Education,
Health, Railways etc) covered in the study6.
Corrupt officers in the police everywhere are of two types. One category consists of “meat
eaters.” They are those who misuse their powers aggressively for personal gain and collect huge
pay offs, generally from persons who indulge in organized criminal activities like gambling,
prostitution, manufacture and sale of illicit liquor and narcotics. The other category is of grass
eaters and includes those who accept payments and favors that the ‘happenstances’ of police
work throw their way. The victims of both are poor people.

It is a mistake to think that the meat eating activities of corrupt police officers do not harm the
poor. To give only one example, in India, tragedies resulting in large number of deaths due to
consumption of illicit liquor keep on occurring with regular frequency and the victims in all
cases are poor people. It is mainly from the poor, unemployed and disadvantaged groups that the
organized crime gangs draw their recruits. However, the majority of corrupt police personnel
belong to the second category and it is their activities that cause considerable harassment to the
poor.

In India, police corruption has caused concern from early times. A century ago, the Police
Commission of 1902-03 found strong evidence of widespread corruption in the police and it
described very vividly the numerous forms in which the police practiced corruption in their daily
work and how badly it affected the common and poor people: “It manifests itself in every stage
of the work of the police station. The police officer may levy a fee or receive a present for every
duty he performs. The complainant has often to pay a fee for having his complaint recorded. He
has to give the investigating officer a present to secure his prompt and earnest attention to the
case….When the officer goes down to the spot to make his investigation, he
is a burden not only to the complainant, but to his witnesses, and often to the whole village.
People are harassed sometimes by being compelled to hang about the police officer for days,
sometimes by having to accompany him from place to place, sometimes by attendance at the
police station, sometimes by having him and his satellites quartered on them for days, sometimes
by threats of evil consequences to themselves or their friends (especially to the women of the
family) if they do not fall in with his view of the case, …..Sometimes by
unnecessarily severe and degrading measures of restraint. From all this deliverance is often to be
bought only by payment of fees or presents in cash.”7

6
Transparency International India: Corruption in India- An Empirical Study, December 17, 2002
7
Government Central Printing Office, Simla, Report of the Indian Police Commission, 1902-03, p 25

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After independence, the evil has not only continued to exist, as reported by different Police
Commissions appointed from time to time by the state governments, but flourished because of
enormous increase in opportunities.

The incidence of police corruption and its impact on poor people may vary from state to state,
but in addition to hafta, a few typical situations of police work in most states of India,
particularly in Northern India, that provide scope to the police to indulge in corrupt practices
are as follows:
1. Registration of complaints.
2. Use of discretion to arrest or not to arrest the suspect.
3. Release of the arrested person on bail or denial of bail.
4. Providing unauthorized facilities to persons in custody.
5. Threatening the poor and weaker sections with arrest, search and prosecution on flimsy
charges.
6. Unauthorized interference in civil matters between two parties by favoring the one with
power and riches and threatening the other from poorer or weaker sections with
involvement in criminal cases.
7. Fabricating false evidence to implicate innocent persons or to leave out the guilty
persons.
8. Obtaining free entertainment, goods and services from cinema houses, shops, hotels,
street vendors etc on threat of prosecution.
9. Collusion with hoarders, black marketeers and smugglers and tipping them off with
advance information about any intended raids or searches. Sometimes this collusion is a
part of an agreement allowing the police to seize some goods so that the public get
assured that action is being taken against anti social elements.
10. Overlooking violations of traffic rules and regulations.
11. Collecting money at the stage of recruitment to the police.

It is obvious that in all such instances, it is the poor people who lose out because they cannot
pay. That is why people from poorer sections of society comprise the largest segment of
incarcerated population in India, both as ‘undertrials’ as well as convicts.

In India, the figures compiled by the Central Vigilance Commission (CVC) in 2001 showed
that 4,347 cases of officers found guilty of corruption belonging to different departments of the
Government of India, including some from the police, had been pending for long. 3,150 of
these were cases in which the Commission had recommended major penalty proceedings, but
the government had taken no action against them.8
Another example of impunity and lack of strong political will to deal with the problem of
corruption can be given from the Indian experience. The premier police agency of the central
government set up mainly to deal with corruption in government departments is the Central
Bureau of Investigation (CBI).

8
The Indian Express, New Delhi dated 9.6.2001

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 In December 1997, the Supreme Court of India, in a very significant judgement, ordered that
the Central Vigilance Commission should be given statutory cover and the authority to
exercise superintendence over the CBI should be transferred to the CVC from the central
government. It took the government more than five and a half years to enact the required
legislation. When numerous attempts made from time to time by the government to thwart the
implementation of the judgement failed, the Central Vigilance Act was passed this year, but
without giving effect to the judgement in full. The apex court had declared the Single
Directive9 null and void as being bad in law. However, the Central Vigilance Act, 2003 has
brought it back and given it legal sanctity, which it earlier did not have.

In India, the CVC recently launched a campaign against corruption in the country. A very
important initiative that formed a part of this campaign was to display on the CVC’s web-site
the names of officers, including the Indian Police Service officers, against whom penalty was
recommended by the CVC after inquires found them guilty of corruption charges. This was
done by the CVC with a four-fold objective in view.
1. Transparency being the key to accountability, the public should be informed about
senior public servants involved in corruption cases.
2. To build public confidence that action will be taken even against top officers.
3. To encourage deterrence.
4. To activate the government to take action in cases of proven corruption against the
guilty officers.

The display of names of corrupt officers on the website created a furor. While the public at large
welcomed the initiative,10 the officers felt that they had become victims of witch hunting and
were being condemned even before the government had decided about the departmental penalty
to be given or about the criminal prosecution to start.
The CVC’s efforts are laudable, but in a politicized culture of impunity prevailing in
government institutions, including the Police, it would take much more than such initiatives to
curb the menace.

The National Police Commission had hit the nail on its head when they concluded that the nexus
between money power and political power existing in India inevitably generated unhealthy
contacts down the line between different levels of administration on one side and political party
functionaries on the other. Mala fide exercise of power at different levels in the police is
induced by such links. The problem of police corruption cannot, therefore, be satisfactorily
tackled unless these links are broken.

3. ILLEGAL ARRESTS & DETENTIONS

Law empowers the police to arrest people and to use force for doing so if it becomes necessary.
There is enough data to show that the police do not use this power judiciously. For example,

9
Through this Directive, the Government had debarred the CBI from undertaking any inquiry against any officer of the rank of Joint
Secretary or above in the Central Government, including those in the public sector undertakings, Reserve Bank of India, SEBI and
nationalised banks, without the prior sanction of the concerned Ministry/Department.
10 93 % of the respondents in a poll conducted by the Hindustan Times (a national newspaper) supported the move

16
in India, the National Police Commission estimated that a large number of arrests made by the
police were not only unnecessary from the point of view of controlling crime, but needlessly
imposed avoidable burden on the state exchequer in the form of expenditure on harboring and
maintaining the arrested persons in jails. The arrests were for very minor offences and 43.2 % of
expenditure in the concerned jails was incurred on prisoners who “need not have been arrested at
all.”

A recent study conducted on the basis of empirical data collected from different states in India
confirmed these findings. It showed that the number of preventive arrests and arrests for petty
offences were substantially large; the percentage of undertrial prisoners was unusually high and
most of them were there because they were not able to post bail or furnish sureties.11

Law in all countries has safeguards to protect the rights of citizens. Almost all over the world,
it requires the police to do at least two things. One, the police must inform the citizens about
the grounds of arrest and two, they must produce the arrested person within a given period
before the judicial officer. The police succeed quite often in circumventing the legal provisions.
There is substantial evidence to prove that the police abuse the power to arrest, despite the
safeguards.
Illegality in arrest takes many forms, the most common and widespread of which is to detain
the arrested man in custody without producing him before the magistrate. This is done by not
showing the arrest in police records. It is during this period of illegal detention that the persons
concerned are subjected to torture and degrading treatment. The annual reports of the human
rights commissions in India are full of validated complaints, where the police picked up
persons from their residence or other places, brought them to the police stations, kept them
there illegally and subjected them to brutal treatment for extorting confessions or for
recovering stolen property or for collecting money. A large number of such cases are of poor
people and many of them end up in hospitals, some even in mortuaries.

In one such case documented by the National Human Rights Commission, a young man was
picked up by the police for questioning in a theft case reported by his employer, taken to the
police station and beaten mercilessly. According to the police, they had summoned him for
questioning on June 13, 1995, released him and again called him on June 14, 1995. The
investigation later revealed that the man was detained illegally in custody from June 8 to June
13. He consumed some poisonous substance on June 14, was rushed by the
police to the hospital where he was declared brought dead. The Commission was distressed to
see the “blatant manner in which the records had been tempered by the very people who were
duty bound to maintain law and order and to uphold the rule of law.”12
In another case investigated by the NHRC, a clerk of a bank was detained by the police in
illegal custody for 13 days in a case of theft reported by that bank and tortured as a result of
which he sustained fracture of his neck and femur bone of the leg.13
11
Law Commission of India: Consultation Paper on Law Relating to Arrest, November, 2000, pp 38 & 3 9
12 National Human Rights Commission, India: Annual Report, 1999-2000 ( Case No. 1460/95-96/ NHRC ), pp 91-92
13
National Human Rights Commission, India: Annual Report, 1999-2000 (Case No. 9302/95-96/ NHRC ) , p 108

17
Another illegal practice followed by the police is to detain the relatives of the person they are
looking for, if they cannot find him. When the police do not succeed in finding the person they
are looking for, they sometimes pick up his relatives and detain them in custody and ill-treat
them till the absconding person surrenders. In a typical case of this type, the police arrested the
father and brother of a suspect in a murder case and detained them illegally in their custody for
a day. When the National Human Rights Commission asked for a report from the authorities,
the Senior Superintendent of Police of the district denied the allegation and said that they had
been summoned to the police station for a brief interrogation. The NHRC’s inquiry showed this
to be false and established that the two had been illegally detained to force the surrender of the
suspect14.
The police get over the requirements of law by manipulating their records. They do so by
employing various methods, like leaving some space blank in the concerned registers and later
on filling it up with fabricated entries; getting signatures or thumb impressions on blank sheets
of paper; making false entries in records to show the investigating officer out of the police
station when in fact he was using the third degree methods at that time against the illegally
detained person etc.
A large number of victims of illegal arrests are generally poor people. In India, a recent report
on law relating to arrest clearly mentions: “very often it is the poor people who suffer most at
the hands of the police. Their poverty itself makes them suspects.”15
This becomes possible because the law of arrest gives very wide discretionary powers to the
police, which are open to abuse. For instance, in India, it empowers a police officer to arrest,
without warrant, any person “who has been concerned in any cognizable offence, or against
whom a reasonable complaint has been made, or credible information has been received, or a
reasonable suspicion exists, of his having been so concerned” or who has in his possession
“any implement of house breaking” or who may “ reasonably be suspected of having
committed an offence” by receiving property that may “reasonably be suspected to be
stolen”16
Then there are sections of law that allow the police to carry out preventive arrests. A police
officer has the power to arrest without warrant, any person who, “it appears to such officer,” is
designing to commit an offence. 17 There are also provisions in law that empowers the
authorities to require some persons to execute a bond to keep peace or to be of good behavior.18

The police arrest a large number of persons under these preventive sections of law, whenever
they carry out a crime control or order maintenance drive. In fact, there are occasions when
large-scale arrests are made by the police under such provisions just to boost up their record of
action taken to prevent crime. Most persons arrested happen to be poor people. It has been
rightly pointed out:

14
National Human Rights Commission: Annual Report, 1999-2000 ( Case No 15016/24/98-99/ NHRC.), pp 111-112
15
Law Commission of India: Consultation Paper on Law Relating to Arrest, November, 2000, p 9
16 The Code of Criminal Procedure, 1973, Section 41
17 Ibid, Section 151

18 Ibid, Sections 107 to 110

18
 “The vast discretion given by the CrPC to arrest a person even in the case of a bailable
offence…and...further power to make preventive arrests clothe the police with extraordinary
power which can easily be misused. Neither there is (sic) any in-house mechanism in the police
department to check such misuse or abuse nor does the complaint of such misuse or abuse to
higher police officers bear fruit except in some exceptional cases”.

A few recommendations to deal with the problem emerge out of the above analysis. Since a
large number of arrests are not necessary for preventing crime or for maintaining order, a list of
offences where arrests are avoidable can be prepared and law amended to proscribe
the police to arrest people in such offences. In India, this initiative has already been taken by its
Law Commission, which has recommended that the police should not be allowed to arrest
people involved in certain categories of offences.

Some element of discretion in exercising their powers to arrest will have to remain with the
police to enable them to deal with wrong doers effectively. What is required is to circumscribe
the powers by prescribing safeguards. This was done by the Supreme Court of
India through one of its landmark judgements in a very famous case. 19 Knowing that torture is
practised on a person when he is incommunicado, the judgement attempted to make the entire
process of arresting a person and detaining him in custody and interrogating him transparent.
The judgement made it mandatory for the police officers to:

• bear accurate, visible and clear identification and nametags with their
designations at the time of arresting a citizen;
• prepare a memo of arrest mentioning the date and time of arrest and attested by
an independent witness and countersigned by the arrested person;

• inform the arrested person of his right to have a friend or relative informed
about his arrest and the place of custody and to inform the friend or relative if
he lives outside the district or town;
• make an entry in the diary at the place of arrest and detention;
• get the arrested person, if he so requests, examined at the time of arrest and
record his injuries in an Inspection Memo and to give a copy of the Memo to the
arrested person;
• subject him to medical examination every 48 hours during his detention in
custody; and
• send information of the person’s arrest and detention to the police control room
in district and state headquarters.

This judgment delivered in 1997 did not succeed in stopping the misuse of powers of arrest, as
the safeguards were not followed. The state governments did not establish any mechanisms to
monitor the implementation of the judgment; nor did they incorporate the safeguards in relevant
laws or police manuals.

19
D.K.Basu vs. State of West Bengal (AIR 1997 SC 610)

19
Despite the procedural safeguards mandated by the Supreme Court in D.K. Basu, police
frequently hold individuals without charge or opportunity to notify outsiders.20
A Bangalore inspector, who admitted detaining suspects for more than 24 hours before
producing them before court said: “We do use some extra-legal methods. You might disagree,
but we cannot do all work by the book. Then the police would be completely ineffective.”21

Police say they do not permit suspects to meet with relatives and lawyers because evidence
would be destroyed. A sub-inspector in Bangalore said: “If we allow them to talk to lawyers, the
suspect will send word to their co-conspirators to hide evidence, and to go into hiding. The
lawyers are not supposed to act as couriers of information but in effect that is what they do,
making our work impossible. So, yes, we don’t think it is very good to let them meet lawyers
until we have questioned them.”22
These periods of unregulated and incommunicado detention render suspects vulnerable to police
torture and other ill-treatment.23

4. TORTURE AND OTHER MISTREATMENT

The Indian Supreme Court has said “dehumanizing torture, assault and death in custody” are so
“widespread” as to “raise serious questions about credibility of rule of law and administration of
criminal justice.”24
India’s commitments under international law—having ratified the ICCPR and signed the
Convention against Torture, both of which prohibit torture and cruel, inhuman, and degrading
treatment—are reflected in domestic laws that condemn torture and, to some

20 In 2002, the Law Commission of India noted an amicus brief filed before the Supreme Court suggesting that “according to the information
received from various States, it was clear that D.K. Basu guidelines are not being followed in most of the States.” The Commission continued:
“Can anybody assure that in India, the Police invariably would inform a person in detention that he has a right to call a lawyer at the time of his
interrogation? Even if we introduce a rule to that effect and even if the Police record in their diary that such an opportunity was given, one
cannot say how much credence can be given to such a noting in India.” Law Commission of India, “180th Report on article 20(3) of the
Constitution of India and the Right to Silence,” May 2002,http://lawcommissionofindia.nic.in/reports/180rpt.pdf (accessed June 16, 2009), p.
11.
21
Human Rights Watch interview, ( Details not available), Bangalore, 2009
22
ibid
23
The Law Commission of India noted the long-standing problem in 1994, in its only report on custodial crimes: “Members of the
weaker or poorer sections of society, are arrested informally and kept in police custody for days together without any
entry of such arrests in the police records. During the informal detention they are subjected to torture, which at times results in
death.” Law Commission of India, “152nd Report on Custodial Crimes,” 1994, http://lawcommissionofindia.nic.in/101-
169/Report152.pdf (accessed June 16, 2009), para. 1.5; see also supra note 181.
24 Dalbir Singh v. State of U.P. and Ors., WRIT PETITION (Crl.) NO. 193 OF 2006, decided 2/3/2009, paras. 8-9. The Court noted that
procedural safeguards for arrest and detention established in D.K. Basu v. State of West Bengal, JT 1997 (1) SC 1) “seem[] to have caused not
even any softening attitude to the inhuman approach in dealing with persons in custody.” Several human rights organizations in India have
documented widespread police torture. Between January 2006 and August 2008, the National Project on Preventing Torture in India
documented 6,063 cases of police torture in 47 districts across nine states. People’s Watch, “Torture and Impunity in India,” November 2008,
http://www.pwtn.org/tortureandimpunitybook.htm (accessed July 15, 2009). In several reports, the Asian Centre for Human Rights has
examined patterns of torture by police, discussing cases it has documented and analyzing media reports of torture. See ACHR, Torture in India
2009 (New Delhi:
ACHR, June 2009); ACHR, Torture in India 2008 (New Delhi: ACHR, June 2008); ACHR, India Human Rights Report 2009 (New
Delhi: ACHR, May 2009), ACHR, India Human Rights Report 2008 (New Delhi: ACHR, May 2008)

20
 extent, provide for procedural safeguards against it.
For instance, the Supreme Court has interpreted the constitutional right to liberty and human
dignity as an “an inbuilt guarantee against torture or assault by the State or its
functionaries.”25 Directives issued in D.K. Basu v. West Bengal also establish detention
procedures.

These legal protections are insufficient because too many police continue to view the use of
force to obtain confessions and information as an acceptable and necessary tool for
investigating crime and enforcing the law. Police also sometimes physically harass and beat
members of vulnerable populations, with no apparent fear of prosecution.
Police beatings with lathis, or batons, over varying periods of time is the most common type
of abuse described by victims and local human rights groups. Victims of street abuse report
that police dragged them by their hair along the street toward police vehicles, and
thatconstables beat them with lathis in front of bystanders. Victims of abuse in police stations
and chowkis describe severe and recurring violence.
A man who worked in U.P. Police for five years as a volunteer described common methods
police use to elicit confessions, which were consistent with those recounted by victims and
described in reports by local groups:

• Beating of the soles of victim’s feet, this causes excruciating pain but does not
leave visible marks. It is most commonly used against petty criminals to elicit
information regarding the stolen property or the identity of others involved;
• Waking the victim at 2 a.m., or in the midst of a deep sleep, and beating the victim
with lathis. Wooden rods known as “rollers” may be pressed and rolled on the
victim’s legs to cause extreme pain;
• Shock treatment administered by using a car’s electrical generator, or dynamo, and
applied to ear lobes, nipples, and genitals. This is said to be most commonly used in
theft cases;
• In the “Bombay treatment,” tying the victim’s hands and forcing the victim to squat on
a rod balanced between two tables. Pressure builds up on the ankle nerve. While the
abuse leaves no visible marks, if the victim is left in the position for longer than an
hour they may suffer permanent nerve damage;
• In the “aeroplane treatment,” using lathis or other rods to hang a person upside
down and beat them.26

Individuals who are poor and socially or politically marginalized are particularly

25
Dalbir Singh v. State of U.P. and Ors., WRIT PETITION (Crl.) NO. 193 OF 2006, decided 2/3/2009, para. 8.
26 People’s Watch,“Preventing Torture in India,” undated, http://www.scribd.com/doc/15075637/EU-FNS-Presentation-

21
vulnerable to police torture and mistreatment. Poor criminal suspects are unable to bribe
police to secure their release and are unlikely to have connections to local political figures
who can intervene. As a result, they are targets for prolonged detention and repeated
violence.
Women and girls, especially those who are poor, are at risk of abuse by police when in
custody as criminal suspects, especially when being escorted by male police to court. Some
socially and politically marginalized communities are subject to frequent physical
harassment and street beatings by police, in some cases explicitly sanctioned by senior
police.
Police sometimes detain and beat family members and friends of criminal suspects when they
are unable to apprehend the suspects. Even when initially detained for information, family
members of criminal suspects are vulnerable to police ill-treatment and extortion. For example,
when police were unable to locate Vikram, a suspect for a petty crime, they detained his
brothers, Vinod and Stalin, demanding that they reveal Vikram’s whereabouts. But once
Vikram surrendered himself at the police station, the beatings continued. Vikram’s brother
Vinod told a news channel:
“When Vikram came, the SI made us stand in a triangle and slap each other. The SI said,“If
you don’t beat each other, I’ll beat you all with lathi.” They swore at us, calling
us“mother***er.” We were standing just outside the lockup. There were four or five
constables, including two women. They didn’t do anything. The SI said to us, “I should not
see you in [village name withheld] area, otherwise I’ll put a false case against you.” Then the
SI directed constables to place the brothers in chairs, stand on their thighs, and beat the soles
of their feet. Vinod watched police beat his brother Stalin’s back and hands, until he was
bleeding. Vikram was beaten for the rest of the night. The SI told Vinod and Stalin that he
would file the same charges against them as he had against Vikram. But after their family
borrowed 7,000 rupees (about US$150) to pay the SI, they were released.

A common reason police beat criminal suspects is to obtain confessions or other

information27 Police sometimes use confessions when they initially produce a criminal
suspect before a magistrate. They are required to produce suspects within 24 hours of
making an arrest, and too often rely on the confession, or information gleaned from or
planted in it, to justify keeping the suspect in police custody for continued

27 The Supreme Court recognized the prevalence of the practice in its 1997 landmark D.K. Basu decision, noting: “Experience show that
worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence confession
often resorts to third-degree methods including torture.” D.K. Basu v. State of West Bengal, (1997) 1 SCC 416. In 2000, the government-
sponsored Padmanabhaiah Committee on Police Reforms reported: “[Police] resort to torture for 'professional objectives' - to extract
information or confession in order to solve a case.” Report of Padmanabhaiah Committee on Police Reforms, quoted in REDRESS,
“Reparation for Torture: A Survey of Law and Practice in 30 Selected Countries (India Country Report),” May 2003,
http://www.redress.org/studies/India.pdf (accessed July 15, 2009), p. 4.

22
 questioning.28
Police also use confessions to “solve” crimes, that is, to clear cases and support prosecutions.
Confessions made in police custody are ordinarily not admissible as proof of guilt. However, a
suspect’s statements to police are admissible as corroboration of other evidence, a “back door”
that leads to police reliance on confessions. For example, if a suspect confesses that he stole a
mobile phone, it was the color red, and he stashed it in his closet, the red phone police recover
from his closet is admissible and so is the suspect’s statement that the phone was red and in his
closet, although his confession that he stole it is not.29

5. EXTRAJUDICIAL KILLINGS BY POLICE

The Indian police can be broadly categorized as committing two types of unlawful killings.
In the first, suspects die during custodial torture or by execution and police deny all
responsibility, claiming instead that there were other causes for the deaths. In the second,
known as “fake encounter” killings, the police acknowledge the killings but falsely claim
they acted in self-defense or to prevent victims from fleeing arrest.
In parts of India, police commit both kinds of killings with impunity. Efforts by the
media and NGOs to document hundreds of such killings during the past decade have been
hampered by systematic police denials. The absence of records including post-mortem
examinations and registries of arrest and detention ordinarily makes it
difficult if not impossible to disprove police accounts.30
Police often deny responsibility for killings, even when evidence suggests a victim died
in police custody.
For instance, the police deny any involvement in the August 13, 2008, death of
Krishnamurthy, a building contractor in the Kolar Gold Fields area in Karnataka,
although he was last heard from while in police custody.31Police refusal to take a body
for a post-mortem examination makes it virtually unfeasible to investigate possible police
involvement in killings. That is particularly true in cases where victims have reason to
suspect police officials of having committed the crime but no one witnessed

28
Criminal Procedure Code Section 167. “Due to the present wording” of the provision, “some conventions and practices have developed
in several states for the magistrates not to grant police custody unless the investigating officer pleads that
the accused has already made a confession and his continued custody is necessary to recover the property.” DP Khanna, “Reform Areas
in Criminal Law” in P. J. Alexander, ed.,Policing India in the New Millennium(New Delhi: Allied Publishers, 2002).
29
Indian Evidence Act of 1872, Sec. 27.
30 For instance, in 2007 magisterial or judicial inquiries were conducted in 73 of 118 reported deaths in police custody, but only seven cases were sent for
trial and no police were convicted of wrongdoing. National Crime Records Bureau, Ministry of Home Affairs, “Crime in India
2007,”http://ncrb.nic.in/cii2007/home.htm (accessed March 28, 2009).
31 TOI, Aug 15, 2008

23
 police apprehending the victim or the killing itself.32
In some cases where witnesses can attest that police took custody of an individual later
found dead, police have admitted they had custody but claimed that the death resulted
from sudden illness or heart attack.33

Another police tactic is to claim that the detained individual committed suicide.34 While
in the cases described so far police deny responsibility for killings, in other
cases police publicly acknowledge killing individuals, often alleged organized crime
figures, terrorists, and violent criminals. In dozens of cases, police have been accused of
killing these individuals, who are often petty criminals, in “fake encounter” killings, or
fabricated shoot-outs, to win public favor or in furtherance of police officers’ own
political or criminal ties.
The term “encounter killing” emerged in the late 1980s following a spate of police
operations against individuals alleged to be involved in organized crime. “Encounter
specialist” police officers often made only faint gestures toward firing in self-defense
because they enjoyed vast public support for what the media depicted as vigilante-style
heroism in courageously hunting and gunning down criminals. The government awarded
gallantry medals and promotions to police who “scored” dozens of encounter deaths,
crediting the deaths, rather than arrests, with breaking organized crime’s stronghold on
Mumbai and Delhi, and reducing gang violence in Bangalore.35 In this narrative, the
police officer as judge, jury, and executioner was necessitated by the impotence of a
clogged court system that, given its low conviction rate, was out of touch with the reality
of escalating levels of violence.

32
306 The Supreme Court has recognized the problem, noting: “Rarely in cases of police torture or custodial death, there is [sic] any direct ocular
evidence of the complicity of the police personnel[,] alone who can only explain the circumstances in which a person in their custody had died.” Dalbir
Singh v. State of U.P. and Ors., WRIT PETITION (Crl.) NO. 193 OF 2006, decided
2/3/2009, para. 10.
33 In such cases, medical personnel may corroborate the account of police officers by delaying the post-mortem exam or writing a false or
incomplete post-mortem report. In 1993, the NHRC recognized the problem and directed the states to videotape all post-mortem reports in
custodial death cases, but this does not appear to be common practice. Even obviously fabricated or incomplete post-mortem reports may cripple
attempts to prosecute police because magistrate and departmental inquiries nevertheless rely on them. For instance, in 2007 the Gujarat High
Court noted that a 4-year-long magistrate inquiry into the 1994 death of Rasiklal Jaiswal credited the police’s account that he died of a heart
attack, despite finding “obvious negligence” on the part of medical personnel who delayed the post-mortem examination and conducted it
improperly. Premilaben W/O Deceased Rasiklal Motilal Jaishwal v. B.M. Jadeja Police Inspector (Spl. Cri. Appln. No. 328 of 1998),
http://gujarathc-
casestatus.nic.in/gujarathc/briefcasevdetails.jsp?cs=R&ct=SCR.A&cn=328&cy=1998&ctstval=r45hht56nhhj768778&qrytypr
34
See, e.g., The Hindu, “Youth ‘stabs himself,’ in police station, dies,” July 22, 2004 (police claim man stabbed himself with glass shard
believing he would be released from custody); The Hindu, “Man accused in theft case dies in police custody,” August 26, 2005 (police claim
man accused of robbery hanged himself from a ventilator grill)
35
For instance, Mumbai sub-inspector Daya Nayak claimed in 2004 to have killed 83 individuals in encounters during the previous four years;
his life was apparently the basis for the 2004 film Ab Tak Chhappan. Calcutta Telegraph, “The decline and fall of encounter specialists,” July
20, 2008

24
 India’s Criminal Procedure Code invites abuse by authorizing police to use all necessary
force to effect arrest, without regard to whether a suspect is armed.36 The Code thus enables
police to kill suspects under the pretext of attempting to make an arrest, even if police
initiated the exchange of fire and even if the suspect was unarmed. Similarly, police are
authorized to use deadly force to make an arrest whenever a suspect “attempts to evade the
arrest,” regardless of whether the suspect is armed or dangerous.37 Because little is required
to justify police use of deadly force, police can easily fabricate evidence to substantiate their
accounts.38

36
Criminal Procedure Code, sec. 46, authorizes police to use “all means necessary to effect the arrest” of any person who “forcibly resists
the endeavour to arrest him, or attempts to evade the arrest.” However, it adds: “Nothing in this section gives a right to cause the death of a
person who is not accused of an offence punishable with death or with imprisonment for life such police officer or other person.”
37
Ibid
38
Criminal Procedure Code, sec. 46, authorizes police to use “all means necessary to effect the arrest” of any person who “forcibly resists
the endeavour to arrest him, or attempts to evade the arrest.” However, it adds: “Nothing in this section gives a right to cause the death of a
person who is not accused of an offence punishable with death or with imprisonment for life such police officer or other person.”

25
 CHAPTER-III
HINDERANCES TO THE PROSECUTION OF POLICE

While allegations of police abuses are frequently reported in the Indian media, only 28 percent of the
all the complaints filed against police between resulted in police departmental, magisterial or judicial
inquiries, according to the Indian government. Further, prosecutions of 8, 736 officers were initiated,
but only 1,070 trials were completed and 264 officers convicted. 39 While not conclusive, this data
suggests that despite high-profile and successful prosecutions of some abusive officers, many police
operate in an environment where impunity is still the norm.
Independent investigations are critical to reducing impunity for police human rights violations. Internal
police investigations in India have not fulfilled this role. In some states, internal disciplinary proceedings
are hampered by the lack of a police ombudsperson or dedicated internal monitoring unit. In 2006 the
Indian Supreme Court ordered the states to create police complaints authorities to investigate complaints
of police misconduct, but only about half the states have done so. Most existing bodies do not function
properly, and, according to the Commonwealth Human Rights Initiative, none have staff to conduct
independent investigations.40
Community-led protests in response to particular incidents of police violence sometimes trigger
temporary suspension or transfer of junior- and low-ranking police. Government data shows that
internal disciplinary proceedings do not ordinarily result in serious disciplinary actions against
perpetrators.41 There is no official nationwide data disclosing how frequently internal proceedings
identify higher-ranking police who either ordered or tolerated the alleged abuse.
Internal police investigations are hampered by an informal police “code of silence” that makes police
unlikely to disclose incriminating evidence.341 External agencies too often charge police themselves
with conducting investigations, or defer to police reports, enabling police to insulate themselves from
liability. In the absence of an independent investigation, officers who issue illegal orders or pressure
subordinates to carry out abuses can lay the blame exclusively on their subordinates.42

39 National Crime Records Bureau, Ministry of Home Affairs, “Crime in India 2007,”http://ncrb.nic.in/cii2007/home.htm

40
In Prakash Singh, the Supreme Court required each state government to set up a Police Complaint Authority, with a state- level body to
investigate complaints of “serious misconduct” by high-ranking police and district-level bodies to investigate any complaints against low-
ranking police. Prakash Singh v. Union of India, (2006) 8 SCC 1. According to the Commonwealth Human Rights Initiative (CHRI), as of
December 2008 only 15 states had established such bodies. While these bodies have the authority to summon and enforce witness attendance,
they are practically limited by a lack of sufficient staff; many do not even have office space. Moreover, contrary to the Supreme Court’s
directions, state governments have directly appointed the members of the authorities. According to CHRI: “As these members are essentially
political appointees, they are much more likely to behave in accordance with what the executive wishes and do nothing that would displeased
the government or the police.” CHRI, Feudal Forces: Reform Delayed (New Delhi: CHRI, 2008), pp. 40-43.
41
According to the National Crime Records Bureau, police departments initiated action disciplinary proceedings against
19,187 officers in 2007. Proceedings were completed with regard to only 8,595 officers. Of these, only 665 officers were dismissed and
4,650 officers faced “major punishment.” National Crime Records Bureau, Ministry of Home Affairs, “Crime in India 2007.”
42
“[T]o ensure a modicum of loyalty,” senior police sometimes fail to order investigations into complaints against lower- ranking
police. P.D., Malaviya, “Structural Trouble in Police,” in P. J. Alexander, ed., Policing India in the New Millennium (New Delhi: Allied
Publishers, 2002), p. 34.

26
 Some victims of police abuse did not pursue criminal cases against police because they feared
retaliation. The potential for police intimidation or harassment of individuals complaining of abuse is
high because registration of the FIR may require a visit to the very station where the abuse occurred, or
interaction with the offending officer. Police motivated to cover-up an abuse can refuse to register an
FIR or inaccurately record it and witness statements.43 In a custodial death case, police can delay
registering the FIR until after the body is cremated so that a post-mortem examination cannot be
ordered.
Another major hindrance to criminal prosecution of police is Section 197 of the Criminal Procedure
Code, which requires state government’s approval for prosecution of state police.44

WHO CAN PROMOTE POLICE REFORMS

There are multiple ingredients of the modern Indian society who can advance their support to
promote and facilitate reforms in the working of the Police so as to safeguard various rights
guaranteed to an individual by multiple municipal statutes and International legislative
framework. Most prominent of them are discussed here under:
▪
THE POLICE

The impetus for police reforms has to come from within the police department. There are quite a
large number of conscientious and honest policemen in every police force and they feel very
frustrated at the quality of policing that is provided to the majority of people in the country. They
want the system to improve, but their voices are not heard in the regimes where the dishonest and
politicking types flourish. This is presently happening because the bad policeman, under the
system of patronage flowing from his nexus with corrupt and criminal politician, is able to abuse
his power with impunity, while the good policeman is getting increasingly disregarded and
isolated. To survive, the latter must keep his head down to remain out of harm’s way and turn a
blind eye to the malfeasance of his superiors as well as inferiors. In any case, it is the public, who
suffer the consequences of wrong and venal policing. Police personnel showing courage of
conviction and sticking to principles while performing their duties must get full support and
protection from all quarters. Once this happens, Police will be able to play a very significant role
in catalyzing reforms from within. The police being a hierarchical and disciplined organization,
sizeable and significant reforms can be brought about even within the existing framework of
laws.

In India, another component of this Police Mechanism is seen in the form of many retired police
officers who are willing to lend their time and experience in working for any agenda aimed at

43 Redress, “Taking Complaints of Torture Seriously,” September 2004, http://www.redress.org/publications/PoliceComplaints.pdf (accessed

April 5, 2009), pp. 51-52.
44
Criminal Procedure Code, Sec. 197 states: “No Court shall take cognizance of any offence alleged to have been committed by any member
of the Armed Forces of the Union whole acting or purporting to act in the discharge of his official duty, except with the previous sanction of the
Central Government.”

27
bringing about police reforms. In fact, it is two retired police officers in this country, who have
filed a public interest writ in the Supreme Court asking for directions to be issued to the
government to implement some important recommendations of the National Police Commission.
The problem is that of harnessing the talent and experience of these people for the cause of
police reforms by organizing them into groups working in their own areas for this cause.

▪
THE POLITICIANS i.e. LEGISLATORS

Attempts must be made to convince the politicians that police reforms are not only essential but
are urgently required. They must be persuaded to believe that implementing police reforms
would be in their own interests, as without reforms, the existence of the democratic polity itself
would be in jeopardy. In fact, it may even be better to appeal to the strong survival instincts of
the politicians showing how it is in their own interests to reform the police.

In India, the police have invariably been used as a stick with which to beat your opponents into
submission. The politicians in power tend to forget that the same stick can be used against
them too when they are out of power and this has been happening quite often now a day in
India. It is for the politicians to realize that they can be very unsafe once they are out of power
unless they take action to reform the police.
This constituency also needs to be told that a professionally efficient and an honest police force
can give far better returns in terms of winning public support for the political party in power
that a force, which is misused for selfish purposes. A misused police force gets
corrupt and brutalized and in turn abuses its powers. The victims of such abuses are always the
common poor people, who constitute the majority of India’s vote bank.

▪
HUMAN RIGHTS COMMISSIONS

Wherever Human Rights Commissions exist, they provide a good constituency through which
police reforms can be advocated. Most work done by the commissions is in the form of
unearthing human rights violations and providing redress to victims. The importance of this
work cannot be gainsaid, but this constituency can become an important catalyst for systemic
reforms in the police. In this way, human rights commissions can use their work and resources
coupled with their credibility and influence to steer the reform-making agenda towards larger
ends. Their charter needs to emphasis this; their independence has to be ensured and their
resources need to be augmented to enable them to work towards the end of reforming the
police.

▪
NON-GOVERNMENT ORGANISATIONS (NGOs)

This component of society in most parts of India is somewhat weak and its capability in the

28
area of police reforms work really needs to be built up. NGO’s workings in this area are
broadly of two types depending on the nature of activities carried out by them. One is to
inquire into violations of human rights committed by police personnel and the other is to
advocate for systemic reforms. The former group of activities, by bringing police atrocities out
in the open help in creating pressures on the government to take action against the police, but
these require systemic documentation of human rights violations in an authentic manner.
Documenting human rights violations committed by police personnel poses a major challenge
to the NGOs. The task is quite daunting not only because of the intimidating nature of work but
also because of lack of expertise in doing it efficiently. Most NGOS are really not well trained
in this work.

One problem faced by NGOs advocating for police reforms is the non-availability of
information about government’s plans and programmes concerning the police. This hampers
the NGOs’ efforts to make out a strong case for reforms in the police. The government also
feels that though the NGOs are ever ready and willing to condemn the police at the drop of a
hat, they have no alternative plans to suggest. The NGOs lack expertise and do not succeed in
advocating convincingly for alternative plans for restructuring or even for programmes for
action within the existing framework. The building up of this component should result in
improving their knowledge of how their police system is functioning, legal and other problems
affecting the delivery of justice, what has been successfully done to address policing problems
in other countries, and what resources can be mobilized, both within India and from abroad.

▪
THE MEDIA

The media is one of the most powerful tools that can really help in bringing about change. It
has enormous reach and power. Technological advances witnessed during the last few decades
have revolutionized the world of communications and opened frontiers, which were hitherto
unknown to the media or beyond its reach. Any violation of human rights occurring anywhere
in the country can be known to the rest of the country in no time. The media has shown interest
in reporting on human rights violations committed by police personnel. The exposure itself
helps in ensuring accountability. The media in some cases has shown missionary zeal in
investigating and exposing abuses of power.
Besides functioning as a watch dog, the media can contribute towards catalyzing a public
debate on police reform, and play a part in educating the public on the major issues linked to
police reform.

29
 CHAPTER-IV

DETAILED SUGGESTIONS TO GALVANIZE POLICING SYSTEM AND

SAFEGUARD HUMAN RIGHTS

The Indian government at the highest levels should work with state governments, the police, civil
society organizations, and the general public to bring about the needed change. Here is an account of
suggestions to its various integrated components to facilitate such change by promoting reforms in
policing mechanism and henceforth ultimately safeguarding Human Rights of every concerned
individual.

➢
THE UNION HOME MINISTRY, UNION TERRITORY POLICE, STATE
HOME MINISTRIES, AND STATE POLICE
They must,
1. Ensure registration of First Information Reports
a) The Director General of Police should issue clear, consistent, and unambiguous
directives to division and district supervising officers to ensure, consistent with
the Criminal Procedure Code, that an FIR be registered in every case in which
police receive information that on its face suggests the commission of certain
criminal offenses. Change police manuals to make failure to register an FIR a
ground for disciplinary action and repeal or revise provisions that create
unnecessary ambiguity, such as the directive that police not register FIRs for
“vague rumors.”
b) To reduce the pressure on police to “show” reductions in the crime rate through
non-registration of FIRs, institute household crime surveys such as the
International Crime Victim Survey.
c) Strictly enforce the requirement that a completed FIR be read to the complainant
and that a copy of it be given free of charge. Consider amending the Criminal
Procedure Code to require police to record complainant statements that dispute the
accuracy of the FIR registered on their behalf.
d) Establish that complaints made by phone are a proper basis for the recording of an
FIR. In cities and surrounding areas, consider establishing a central call center to
record complaints, assign and dispatch police and monitor police response.

e) Increase the availability of police to register FIRs by deputizing sub-inspectors

and head constables to do so under section 157 of the Criminal Procedure
30
 Code.
f) To reduce delays and malfeasance, require police to register an FIR for any
complaint, regardless of jurisdiction, before transferring a case to the
appropriate police station.
g) Abolish requirements that head constables in charge of police outposts forward
crime complaints to the nearest police station, rather than registering an FIR.

h) Monitor registration of FIRs through a program of “decoy visits,” with surveyors

posing as complainants attempting to register an FIR.
i) Require that when investigating officers exercise discretion to abstain from
investigating a case under section 157(1)(b) of the Criminal Procedure Code, they
record their reasons for doing so and provide a report to complainants. Make clear
that such discretion does not authorize police to refrain from registering an FIR.
Consider revising police rules and manuals to set explicit guidelines for the
exercise of discretion to abstain from investigation, particularly with regard to
petty theft cases and those involving what police may mistakenly regard as a
“private” or “civil” dispute.

2. Investigate complaints of gender-based crimes

a) Clearly and unequivocally signal, through statements and measures by state
officials and the highest-ranking police, that all police, including those at Crimes
Against Women Cells and other special departments, must inform women who are
victims of domestic violence and other crimes of their right to have an FIR
registered under section 498A of the Indian Penal Code and, if a woman requests,
must do so without delay.
b) Follow the example of the Andhra Pradesh police in establishing procedures in
accordance with the Protection of Women from Domestic Violence Act including
informing complainants of their rights to: make an application for relief including
shelter, medical care, and custody orders; access service providers and Protection
Officers; obtain free legal services; and have a complaint filed under section 498A
of the Indian Penal Code. Train police regarding these statutory duties and their
legal obligations to register an FIR for breach of a protection order and assist in the
implementation of such orders.
c) Increase the number of women police officers, their promotion opportunities, and
the number of women’s police stations to ensure appropriate personnel are
available to escort victims of gender-based violence, record their claims and

31
 interview them for the purpose of crime investigation.
d) Establish clear and explicit guidelines for police intervention in cases of domestic
and sexual violence, including standardized arrest policies for perpetrators, the
separate categorization of domestic violence in police records, protocols for
referring victims of domestic and sexual violence to social, legal and health
services, and procedures to protect the privacy and confidentiality of individuals
reporting gender-based violence.
e) Establish mandatory training for investigating officers regarding gender-based
crimes. Training should include investigative methods applicable to sexual and
domestic violence, including working with traumatized victims, protecting victims
from harassment, and collecting and preserving evidence.

3. Enforce existing law regarding arrest and detention and establish further
safeguards
a) Clearly and unequivocally signal, through statements and measures by state
officials and the highest-ranking police, that the use of torture or other mistreatment
in police custody is unacceptable and will not be tolerated. All officers should
understand that force may only be used when strictly necessary for the maintenance
of security and order, or when personal safety is threatened. Denounce use of
threats of false arrest and “encounters” in interrogations as unlawful. Explicitly
define acceptable interrogation techniques in police rules and manuals.

b) Ensure that police officers implicated in torture and other ill-treatment, regardless of
rank, are disciplined or prosecuted as appropriate.

c) Strictly enforce guidelines on arrest and detention in the D.K. Basu and the Criminal
Procedure Code. In training and practice, emphasize the requirement that police record
all arrests and detentions, produce suspects before a magistrate within 24 hours and
provide medical examinations of suspects in police custody.

d) Consider requiring police, upon arrest or any informal detention of a suspect, to

recite the suspect’s rights under the Supreme Court’s D.K. Basu decision and the
Criminal Procedure Code. The Basu recitation should include a clear statement of
the charge and the suspect’s rights to consult with an attorney inform others of
detention, and to medical examination.
e) Allow independent monitoring of detention facilities including station lockups
and jails by human rights commissions and civil society groups. Detainees
should be permitted to meet privately with representatives of independent

32
 organizations conducting monitoring.
f) Consider requiring police in cities to videotape interrogations, particularly in
murder and other serious crimes, to prevent the use of torture and ill-treatment.
g) Work with civil society groups to train police on proper conduct toward women,
sexual minorities and children in custody.
h) Strictly enforce the provisions of the Juvenile Justice (Care and Protection of
Children) Act, in particular the requirement that an apprehended child be placed
immediately under the charge of a special juvenile police unit or a designated
police officer, and that the child must be produced before a Juvenile Justice Board
within 24 hours of apprehension.
i) Amend police laws and manuals regarding use of force in arrest to reflect
international legal standards, including the UN Code of Conduct for Law
Enforcement Officials, and the UN Basic Principles on the Use of Force and
Firearms by Law Enforcement Officials. In particular, require that police apply, as
far as possible, nonviolent means before resorting to the use of force, use force only
in proportion to the seriousness of the offense, and use lethal force only when
strictly unavoidable to protect life.

4. Implement procedures for custodial death and encounter killings

a) Adopt the Andhra Pradesh High Court’s requirement that an FIR be registered in
every case of death allegedly from an encounter killing.
b) Codify the NHRC’s revised guidelines regarding encounter deaths in police rules
and manuals, implement the prescribed procedures and train police accordingly. In
particular, immediately notify the NHRC and SHRC of any custodial death or
“Encounter killing.” Without exception, send the deceased’s body for post-
mortem examination. Provide a written copy of the post-mortem examination to
the deceased’s family within 24 hours of the examination.
c) Amend police rules and manuals to reflect the UN Principles on the Effective
Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions.

5. Establish police complaints authorities (PCAs) at the state and district level
as mandated by the Supreme Court
a) Ensure PCAs have the necessary capacity to effectively manage their caseloads.

33
 If a PCA sustains a complaint against an officer and the officer is not internally
disciplined, police should publicly provide a detailed justification. Sustained complaints
should automatically be forwarded to a local prosecutor for review.

b) Provide complainants with clear instructions, simple forms, and a telephone contact
to check on the status of the investigation. Consider creating an anonymous complaints
line for victims and other police to report police misconduct and abuses.

c) Establish a unit at the state level to address the legal, social, medical and
psychological needs of victims of police abuse and killings during the investigative
process.

6. Support external accountability mechanisms

a) Establish that under no circumstances should investigations ordered by external
agencies such as state human rights commissions be referred to police from the
same police station implicated in the complaint.
b) End the practice of transferring police alleged to have committed abuses; the
practice only endangers other residents. Establish that when a police officer is
identified in any FIR regarding conduct which occurred in the course of his duties,
the officer should be assigned desk duty or suspended with pay, depending on the
charge, until the incident is investigated and resolved.

7. Establish robust internal accountability mechanisms

a) Establish an independent internal affairs or “professional responsibility” unit at
the state level to promptly and impartially investigate, within a one-year
mandatory time limit, all cases of custodial torture and death, and all police
shootings that result in death. Internal investigations should be triggered by
allegations made to external government agencies such as the NHRC.
b) Monitor compliance with the D.K. Basu guidelines and similar provisions in the
Criminal Procedure Code. Authorize an independent internal affairs or
“professional responsibility” unit at the state level to conduct random checks on
police lock-ups and respond to allegations of ongoing or recurrent violations of the
D.K. Basu guidelines by police.

8. Establish responsibility of supervising police

a) Issue directives to police at the rank of superintendent advising that they are
responsible for identifying, preventing, and punishing abuses committed by

34
 officers under their supervision, and monitoring officers’ compliance with the D.K.
Basu guidelines.
b) Discipline or prosecute as appropriate superior officers who knew or should have
known of acts of torture and killings, and failed to prevent and punish them.

9. Reduce inappropriate influences on police behavior

a) End the practice of providing money rewards and out-of-turn promotions for
“special merit” services. Do not permit police to accept money rewards from
private persons or corporate bodies.
b) Strictly enforce the Supreme Court’s requirements in Prakash Singh regarding
fixed tenure for police officers and the establishment of a board to
monitor recruitment, appointment and transfer of police. Make information
on all transfers and postings available to the public.

10. Increase investigation resources and training

a) Increase the number of investigating officer (sub-inspector) positions, as
recommended by the 2000 Padmanabhaiah Committee on Police Reforms.
Implement the Supreme Court’s directive in Prakash Singh to separate
investigation and law order functions of policing by assigning a significant
proportion of trained officers exclusively to investigation duties.

b) Implement an investigating officer curriculum at police academies. Take steps to

attract instructors qualified to teach forensic science.
c) Instruct recruits and current investigating officers on the importance of physical
evidence, how it is to be found, collected, preserved and delivered to a forensic
laboratory. Considering current delays in forensic lab processing, teach
investigating officers at-the-scene forensic techniques including elementary
ballistic matching and trajectory identification, photography, and examination of
physical evidence such as fibers, footprints and debris.
d) Train investigating officers on modern, non-coercive techniques for suspect and
witness interviewing and questioning.

11. Address the acute shortage of police personnel

a) In major cities and surrounding areas, mandate frequent revision of “sanctioned
strength,” that is, necessary positions, by evaluating changes in population and

35
 crime rates. Develop a long-term plan to reduce the proportion of vacancies,
particularly at the rank of sub-inspector and below.
b) Establish requirements for the use of police as VIP escorts. Assess security
needs of applicants for VIP escort and set a danger or threat baseline for
deployment of police. End the practice of deploying officers above the rank of
sub-inspector as “ceremonial” VIP escorts.
c) End the practice of using constables as orderlies and personal servants. Increase use
of civilian staff for menial and unskilled positions, including clerical work.

➢
TO THE INDIAN POLICE SERVICE

• As the senior-most officers of the Indian police, send strong, consistent, and
unambiguous signals to the public and subordinate police that arbitrary arrest and
detention, torture and ill-treatment, and extrajudicial killings are illegal and
impermissible police tactics.
• Initiate and lead a campaign to professionalize the Indian police as a whole by, for
example, introducing stringent recruitment standards for lower-ranking police,
technical training, and increased development of specialized units.
• Take the lead in developing strategies that put the Indian police force in step with
changes in policing elsewhere in the world, with, for example, a focus on bringing
services to the community and replacing the colonial model of station-based
policing. Engage in, and urge the government to adopt, long-term planning to
integrate computer technology in police work.
• Embrace crime prevention and community partnerships as critical to effective police
work. Take the lead in envisioning structural changes, such as lengthening posting
periods for station house officers and assistant superintendent of police, to improve
police knowledge of the community, facilitating better community cooperation and
more efficient crime investigation.
• Give priority to the development of an extensive forensic science curriculum in the
National Police Academy.

➢
TO THE INDIAN PARLIAMENT

• Amend or replace the Police Act of 1861 with legislation conforming to the
requirements of the Supreme Court in Prakash Singh. Peg police modernization grants
to states to their compliance with the Prakash Singh monitoring committee’s

36
 directions.
• Amend the Criminal Procedure Code with regard to FIR registration. To ensure prompt
police aid to crime victims, amend Section 154 to explicitly state that a police station
must register an FIR regardless of jurisdiction. Also amend it to permit low-ranking
police to record an FIR, in consideration of the police personnel shortage. Adopt the
2005 Police Act Drafting Committee’s recommendation to make failure to register an
FIR a criminal offense.
• Ratify the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment and the International Convention for the Protection of All
Persons from Enforced Disappearance. Specifically define torture and enforced
disappearances as criminal offenses in the Indian Penal Code.
• Amend the Evidence Act to make inadmissible any evidence obtained on the basis of a
police interrogation that involved the use of torture or cruel, inhuman or degrading
treatment or other illegal coercion.
• Improve police practices regarding violence against women by amending section
498-A of the Indian Penal Code to specifically define domestic violence as an offence.
Amend section 375 of the Code to include marital rape in the definition of rape.

• Reduce abuse of provisions of the (Prevention of Atrocities) Scheduled Tribes and

Scheduled Castes Act by amending it to clarify that failure to comply with
investigative procedure requirements is not grounds for dismissing a case.
• Reduce police extortion of and violence against members of the lesbian, gay,
bisexual and transgender (LGBT) community by repealing section 377 of the Indian
Penal Code, or amending it to decriminalize adult and consensual homosexual
conduct.
• Replace Section 197 of the Criminal Procedure Code, which requires government
sanction for the prosecution of police for criminal acts including arbitrary detention,
torture and extrajudicial killings. In the event that Section 197 is not replaced, define
“official duty” to exclude unconstitutional conduct such as arbitrary detention,
custodial torture and ill-treatment, and extrajudicial killings.
• Amend Section 36 of the Protection of Human Rights (Amendment) Act, 2006 to
permit the NHRC to inquire into violations pending before other commissions or
which occur more than one year before the date of the complaint in consideration of
the limited access victims may have to counsel and limited awareness of rights under
the Act. Empower the NHRC to issue binding orders, rather than non-binding
recommendations to the state governments and police.

37
➢
TO THE NATIONAL HUMAN RIGHTS COMMISSION
• Make public annual reports produced since 2005. Make future reports public no
more than two years after their production.
• Do not transfer cases filed with the NHRC to SHRCs unless given express consent to
do so by complainants, whose complaints may receive a more fair hearing by the
NHRC.
• End the practice of closing investigations upon ordering interim compensation to
victims of rights violations.
• Address the legal, social, medical and psychological needs of victims of police
violence and their families while investigation is ongoing.
• Monitor the implementation of guidelines on custodial torture and encounter deaths.
• Consider establishing field offices or placing NHRC staff at or near SHRC offices
to make the NHRC more accessible to affected communities.

➢
TO STATE HUMAN RIGHTS COMMISSIONS
• Create a unit devoted to oversight of the police that is authorized to respond to
complaints of ongoing violations by visiting police stations.
• Annually make public information on number of received and pending complaints,
and steps taken in response, in addition to annual reports.
• To facilitate independent investigations into alleged violations, increase the number of
investigative staff.
• Provide to complainants a copy of police response to complaints and give
complainants opportunity to respond.
• Train staff that performs complaints intake in domestic law and human rights legal
standards.

38
 CONCLUSION
Human Right violations are practiced by law enforcement agencies in India as a crude shortcut
for crime investigation. Investigating agencies justify the use of torture and other similar anti-
Human Rights activities, arguing that they often lack advanced training and equipment for crime
investigation. The concept of modern policing is still a mirage in India, where the police are
expected to function as a tool for social control rather than to serve citizens.

It can be argued that a large number of law-enforcement officers in the country believe that the
deterrence quotient against a crime is the possibility of being tortured, rather than the crime
being detected, prosecuted and punished in the legal process. Extensive delays in court
proceedings and the repeatedly demonstrated professional and intellectual paucity of the
country’s prosecutors appear to offer a layperson’s excuse for the widespread belief among law
enforcement officers that the only punishment a criminal might get in India is the torture at the
hands of the investigator.

This has led into a situation where torture is widely practiced, particularly in the police stations,
throughout the country. Police officers and other law enforcement officers generally consider
torture as an essential investigative tool for investigation. Policy makers and bureaucrats believe
that there is nothing wrong in punishing a criminal in custody, not realizing the fact that a person
under investigation is only an accused, not a convict and further, that even a convict must not be
tortured. This is due to the lack of awareness about the crime, its nature and seriousness.

As early as in 1981 the Supreme Court of India said, “...[n]othing is more cowardly and
unconscionable than a person in police custody being beaten up and nothing inflicts deeper
wound on our constitutional culture than a state official running berserk regardless of human
rights”45. Internationally, torture is considered as one among the most heinous crimes like
slavery, genocide and maritime piracy, against which there is an absolute prohibition and the
principle of jus cogens applies.

When torture is committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack, torture can also be treated as a crime against
humanity under the Rome Statute.

45
Kishore Singh v. State of Rajasthan, AIR 1981 SC 625

39
The National Human Rights Commission of India has repeatedly recommended that the
government criminalize torture. The commission once said “[d]aily the Commission receives
petitions alleging the use of torture, and even of deaths in custody as a result of the acts of those
who are sworn to uphold the laws and the Constitution and to ensure the security of its citizens.
Such a situation must end, through the united efforts of the Government...”

The UN Human Rights Committee as early as 1997 has expressed its concern about the
widespread use of torture by the law enforcement agencies in India. 46 The Committee on
Elimination of Racial Discrimination has expressed similar concerns (CERD/C/IND/CO/19) in
2007 and the Committee on Economic Social and Cultural Rights (E/C.12/ IND/CO/5) in 2008.

In a democratic framework, even a single incidence of Human Rights violation undermines

democracy and the rule of law. Open or clandestine use of force against innocent citizens by in
charged authorities undermines the fundamentals of democratic governance. A law enforcement
agency, particularly the police, practicing torture reduces itself into an instrument of fear.

This image and torture often reduce criminal investigation into the business of laying a charge
based on confession. Fair trial, an important part of the rule of law framework, has no place in
such an environment.

The practice of torture is not limited to policing. Paramilitary and military units also resort to
torture, often brutal. Whether torture is practiced by a military detachment or by the local police,
the possibility for a victim of torture to complain is very limited in India.

The absence of witness protection laws, proper investigation mechanisms, including medico-
legal facilities, and prosecution mechanisms, render complaint making suicidal for a victim. This
allows torture to also be used for blackmailing, as a form of revenge and for monetary gain.

An effective, stringent, unambiguous and comprehensive law against violation of Human Rights
by its most effective custodian i.e. Police, is thus required to deal with the central deficit in
India’s policing.

46
(CCPR/C/79/Add.81).

40
 BIBLIOGRAPHY

Books:

1. Ratanlal Ranchoddas and Dhirajlal Keshavlal Thakore, ‘Indian Penal

Code’ Published by LexisNexis, Edition 34th, (2014)
2. K.D.Gaur, Textbook on the Indian penal code Published by Universal Law Publishing
Co. Edition 4th (2009)
3. K.D.Gaur, Criminal law: cases and materials Published by LexisNexis Publications,
Edition 7th, (2013)
4. S.R.Myneni, Legal research methodology, published by Allahabad Law Agency, Edition
5th, 2012.
5. K.S. Subramanian, Justifying Police Attrocities
6. Dr. Anjali Nirmal, R.I.P. The Khakee

Websites:

1. http://www.sacw.net/
2. https://indiankanoon.org

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