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Source : Ram Pages

This Article has been authored by Saachi Shukla, a third-year law student at New Law College, Bharti Vidyapeeth, Pune


‘Power corrupts and absolute power corrupts absolutely’[1]and police brutality is one such indicator of an absolute arbitrary exercise of power. Police brutality in the form of custodial violence and encounters, highlights a complete disregard to the principle of Rule of Law embedded in the basic structure of the Constitution. This issue has emerged as a categorical violation of human rights and the fundamental cause for the gradual decline in the administration of criminal justice system in India. The pertinent question as to who will police the police[2]was raised by Justice V.R. Krishna in Prem Chand (Paniwala) v. Union Of India And Ors [3] which still remains unanswered in the present scenario. The pervasive spread of Police brutality in India highlights the fact that the custodians of law have become the perpetrators of this heinous crime, crushing the trust of common man and the fabric of democratic governance.

Police Brutality: License to Beat, Abuse and Kill

Police brutality refers to the unnecessary use of force by a police officer towards a civilian, public or an individual. The common instances of brutality by police personnel could be exercised in the form of torture in police custody or extra-judicial killings. This result is a gross violation of civil rights of an individual guaranteed under the provisions of the Constitution and overhauling of the powers vested in the authority. Police brutality is imposed by way of false arrest and detention, sexual harassment, racial discrimination and encounter killings. This dehumanising torture, assault and death of the victim by way of police brutality pose a serious question regarding the credibility of the administration of criminal justice system.[4]

Incidents of police brutality can be traced back to the dreadful abuse of power when the police stormed the gates of the Jawaharlal Nehru and Jamia Universities to forcibly allay the students protesting to repeal the Citizenship Amendment Act and National Register of Citizens.[5] Recently, the perpetrators in Khakhi were also caught brutally beating up hungry and homeless migrant-workers in Surat just a week into the nationwide lockdown in April, 2020. Another brazen display of police brutality was observed in Delhi wherein a 23-year-old Faizan was violently beaten and forced to chant the national anthem and rebuked for being born in a minority religion.[6] These appalling incidents not only violate basic human rights but also question the credibility of Rule of Law.

The Despicable Episode of Custodial Violence

Custodial violence primarily refers to violence in police and judicial custody which may extend to torture, rape and even death of the victim. It is an outright form of human rights violations and infringement of right to life. The alleged suspects of a crime are tortured physically, psychologically and sexually with methods raging from use of irritants like chilli powder on wounds, severe beating and even rape or sodomy. This form of police brutality in custody leaves an indelible psychological imprint on the minds of the victims. According to National Crime Records Bureau (NCRB) data, only 26 police personnel were convicted of custodial violence despite 1,727 deaths recorded in India between 2001 and 2018.[7]

The recent events that transpired in Tamil Nadu highlighted that appalling reality of custodial violence which is obtrusively widespread in the Indian context. On June19, 2020 a father-son duo named Jayaraj and Bennicks were arrested by police in Tuticorin district of Tamil Nadu for allegedly opening their cellphone shop beyond curfew hours amidst COVID-19 lockdown. The duo was later taken to the station and brutally assaulted following which they sustained multiple severe external and internal injuries and died in custody. The brazen death of Jayaraj and his son in police custody triggered a widespread rage from the entire nation and exposed the gruesome police brutality.

Landmark Judgments on Custodial Violence

In a recent landmark case of Yashwant and Others v. State of Maharashtra,[8] the Supreme Court found nine Maharashtra cops guilty in connection with a 1993 custodial death case under the provisions of Section 330 of the Indian Penal Code. Justices NV Ramana and MM Shantanagoudar upheld the conviction and extended their jail terms from three to seven years each. The Judges observed that, ‘with great power comes greater responsibility’ and it becomes relevant to ensure that such incidents do not erode the citizen’s confidence in the criminal justice system. In another leading case, [9] Honourable Justice J. Nazar acknowledged the dastardly act and observed that such acts would have an adverse impact on the reputation of the police department due to which the citizens will lose faith in the institution.

The Supreme Court issued guidelines in the landmark case of D.K. Basu v. State of West Bengal[10] pertaining to the Constitutional and Statutory Safeguards to be followed in cases involving unlawful arrest and detention. The judgment framed a set of eleven comprehensive guidelines, detailing the rights of arrested persons particularly endeavouring to curtail the pervasive conduct of police officials. The two imperative facets of these guidelines were the Right to Know and the Right to Life. The Apex Court, with this judgment, sought to curb the power of unlawful arrest and ensure that the arrested person is well-informed of all critical information regarding his arrest.

In another significant judgment of Nilabati Behera @ Lalit Behera v. State of Orissa and others,[11] the Supreme Court observed that convicts, prisoners and under-trials are also protected under Article 21 and once an incumbent is taken into police custody and he sustains injuries on his body, the State will have to provide an explanation as to how he sustained injuries and compensation can be awarded accordingly under the public law remedy.[12] The Supreme Court observed in the leading case of State of Uttar Pradesh v. Ram Sagar Yadav and others[13] that the burden of proof in cases pertaining to custodial violence rest upon the Police personnel accused of heinous crime.[14] The Apex Court observed that at the time when a person is taken under police custody and he is subjected to any brutality, the police officer has to give evidence with regards to the circumstances in which a person has been injured in custody.

Encounters Killings: An Arbitrary Use of Power

Encounter killings is another instrument associated with police brutality and unjustified use of power. Extra-judicial executions by police personnel are allegedly done in private defence as provided under Section 96 of the Indian Penal Code, 1860 (IPC). This provision ensures that any act performed in the exercise of self-defence does not amount to an offence. Section 46 of the Code of Criminal Procedure, 1973 (CrPC) authorises the police to injure or kill the criminal for the sole purpose of self-defence or where it is imminently necessary to maintain peace and order.[15] However, due to absolute misuse of these provisions, extra-judicial killings have increased at an alarming rate wherein more than 119 suspects have died in these encounters since 2017.[16]

The reasons determined for the increasing rate of extra-judicial killings in India is complementary to the rewards received in the form of incentives or promotions for encounters, hero-worshipping by the society and political support where the party leaders associate the maintenance of law and order with the achievements in encounter killing rates. This makes it easier for the police to escape cold-blooded murders and in turn diminishes the faith in the role of judiciary. The mysterious and most controversial encounter killings have raised multiple questions on the unfettered abuse of police power giving them the license to kill and eventually blurring the definition of a perpetrator.

Harrowing Realities of Extra-Judicial Killings

The incidents of extra-judicial killings can be traced back to 1982 where the Bombay police launched the Manya Surve encounter operation (popularly known as “Shootout at Wadala”).[17] It took a total of five bullets and the provision of self-defence to escape the extra-judicial killing of Mumbai gangster Manohar Arjun Surve. The recent killing of Vikas Dubey by the Uttar Pradesh Police brought forth the issue of encounter and extra-judicial killings. Known to have been charged with 60 murder, kidnapping and robbery, the dreaded Vikas Dubey also murdered 8 policemen in Kanpur. After a five-day chase in four states, Vikas Dubey was arrested in Ujjain, Madhya Pradesh.[18] However, he was killed in custody soon before being handed over to the Uttar Pradesh Special Task Force. The Uttar Pradesh Police claimed that when one of the police cars overturned on the highway, Dubey allegedly grabbed a pistol from the police while attempting to escape and was killed in an act of self-defence. Dubey was killed in an ‘encounter’- the Indian euphemism for an extra-judicial killing by the police.[19]

In the brutal gang-rape of a young veterinarian, Priyanka Reddy, whose charred body was found in the outskirts of Hyderabad; the Telangana Police acted swiftly and arrested the four suspected rapists. The brutal rape could have been avenged by upholding the law and holding the suspects accountable in Court. However, all four alleged culprits were gunned down in a police ‘encounter’ while trying to escape in the dark of the night. Consequently, the Telangana police were glorified by the society and blatantly admitted that this was a fake encounter.[20] The Hyderabad encounter killing may have been applauded by the whole nation however it indicates the deplorable condition of the administration of criminal justice system in India. The dichotomy associated with both encounters is that Hyderabad rapist encounter was praised throughout the country while the Vikas Dubey extra-judicial killing was considered as an abhorrent violation of human rights.

Some other relevant encounters that highlight police brutality are the Manipur encounter killings in 2010,[21] Batla House encounter in 2008,[22] an alleged encounter of 19-year-old Ishrat Jahan[23] who was suspected to be associated with Lashkar-e-Taiba planning to kill then-Gujarat Chief Minister Narendra Modi and the famous extrajudicial killing of Veerappan in 2004 which was observed to be a staged encounter as the Special Task Force had tricked him in getting an ambulance and later fired 338 bullets out of which three hit Veerappan.[24]

Legal Remedies Against Police Brutality

The existing Indian legislation provides statutory remedies for protection against police brutality in the event of custodial violence and encounters. The Supreme Court has laid down explicitly in a catena of judgments that police brutality is a ruthless form of deprivation of basic fundamental rights and the victim can move to the Court under Article 32 and 226 of the Constitution in case of any infringement. The golden remedy for illegal arrest or detention by police personnel has been provided under Articles 20, 21 and 22 accompanied with Sections 41 to 60 of CrPC. These provisions protect the rights of person against conviction, right to be free from any torture and four fundamental rights guaranteed to arrested persons including right to be informed of the grounds of arrest, defended by a legal practitioner of his choice, preventive detention laws and production before the nearest Magistrate within 24 hours of arrest of the person.[25]

In order to keep a check on the alarming rate of encounter killings, the Supreme Court laid down 16 pertinent guidelines in the landmark case of PUCL v. State of Maharashtra.[26] The Bench comprising of the Chief Justice R.M. Lodha and Justice R.F. Nariman observed that every person has a right to life and even the State cannot violate that right and obligation to follow procedure established by law under Article 21. The Bench highlighted that encounter killings must be investigated independently as they directly affect the credibility of rule of law and administration of criminal justice system.[27]

The other statutory safeguards include Sections 24 and 25 of the Indian Evidence Act, 1872 wherein any confession obtained by threats or torture from a person in authority will be considered as irrelevant in criminal proceedings. This highlights that although custodial torture is not expressly prohibited by law, the evidence obtained by illegal means of physical torture will not be admissible in courts. Apart from this, the Sections 193- 200 of the IPC provide the remedies and punishment for falsification of evidence which obstructs the administration of justice in any case.[28] Furthermore, Section 176 (1A) of the CrPC was amended to include mandatory judicial inquiry related to cases of death, disappearance, rape, etc. in police and judicial custody.[29] Additionally, the provisions of the Indian Police Act also elaborate the dismissal, penalty or suspension of police officers who are derelict in performing their duties or unfit to execute the same under Sections 7 and 29 of the Act.


The police authority is vested with the power to provide a sense of security to the ordinary citizens by maintaining law and order of the society. Contrary to this opinion, instances of hideous police brutality are prominent in India. The Supreme Court, in the landmark case of Prakash Singh and Ors v. Union of India and Ors[30] directed states to establish Police Complaints Authorities at the State and District levels. However, due to the weak implementation, these directions of the Apex court fell on deaf ears. Apart from merely flagging concerns, it is necessary to take policy actions that deconstruct police brutality and curb its regulation. As the eminent Jurist Nani Palkhivala had observed, “We need to strike on the senses in order to awaken the system”.[31]Therefore, there is a growing need for a lawful authority that will monitor exercise of police powers and enforcement of laws.

The Lok Sabha had passed The Prevention of Torture Bill in 2010 which went for further deliberations to the Rajya Sabha. However, due to the dissolution of the Lok Sabha the Bill lapsed twice in the session. Therefore, the Government should take strong initiative to pass the Bill along with implementing the reforms suggested by The 113thLaw Commission Report. Additionally, both the performance of the police as an organization as well as the behaviour of police officers as individuals need constant monitoring. It is imperative to understand the existing loopholes in the criminal justice administration so as to ensure that the issue of police brutality is redressed effectively. The carte blanche enjoyed by the police officials must be urgently reformed so that only rule of law succeeds and not the rule by force.

[1] NA, Power And Authority, Acton Institute, Acton Research, [2] Aadhyaa Khanna, Chetan Chawla, The Enshrinement of Custodial Violence in India, Bar and Bench, (Jul. 17,2020, 10:40 AM IST), [3] Prem Chand (Paniwala) v. Union Of India And Ors, AIR 1981 SC 613 [4] Munshi Singh Gautam v. State of Madhya Pradesh, Appeal (Crl.) 919 of 1999 [5] Preeti Ahluwalia, Perpetrators in khakhi: licensed to beat abuse and kill?, Lex Gaze, (Jul. 04, 2020, Issue 3), [6] Naina Elizabeth Matthew, Police Brutality in India: George Floyd and Faizan, Jurist, (Jul. 01, 2020, 02:53 AM), [7] NA, Custodial Violence, Drishti, [8] Yashwant And Others v. State of Maharashtra, (2018) 4MLJ (Crl)10 (SC) [9] J. Prabhavathiamma v. The State of Kerala & Others, WP(C) No. 24258 of 2007 (K) and CRL. R.P.2902 OF 2007 [10] D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 [11] Nilabati Behera @ Lalit Behera v. State of Orissa and others, (1993) 2 SCC 746 [12] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 [13] State of Uttar Pradesh v. Ram Sagar Yadav and others, (1985) SCC 552 [14] Gahna Rajani and Himanshu Bhargava, Police in India: Protectors against Injustice or Perpetrators of Injustice?, The Criminal Law Blog, National Law University, Jodhpur, 9Jul. 13, 2020), [15] NA, Extra-judicial Killings, Drishti IAS, [16] Tarini Mehta, Vikas Dubey and the Problem of ‘Encounter Killings’ in India, The Diplomat, (Jul. 17, 2020), [17] NA, The first encounter in the history of Mumbai, Daily hunt, (May 08, 2:24 AM), [18] Zee Media Bureau, Main Vikas Dubey hoon Kanpur wala: UP gangster’s words after his arrest in Ujjain, Zee News, (Jul. 09, 2020, 11:25 AM IST), [19] Rohan Venkataramakrishnan, Gangster Vikas Dubey’s death represents the failures of Uttar Pradesh Police- not its success,, (Jul. 10, 2020, 10:10 AM), [20]Rasheeda Bhagat, Cheering ‘encounters’ is a dangerous trend, Business Line, (Dec. 10, 2019), [21] Extra judicial Execution Victim Families Association (EEVFAM) & Ors v. Union of India & Ors, Writ Petition (CRL.) NO.129 of 2012 [22] Deepshikha Ghosh, Batla House encounter Verdict today: ten facts of the case, NDTV, (July 25, 2013, 12:05 pm IST), [23] Revathi Krishnan, Veerappan, Ishrat Jahan, Batla House- India’s 10 most controversial ‘encounters’ since 2003, The Print, (Jul. 10, 2020, 4:28 PM IST), [24] Supra note 23, at 4 [25] Bhim Singh v. State of J.K., AIR 1986 SC 494 [26] People’s Union of Civil Liberties (PUCL) v. State of Maharashtra, CDJ 2014 SC 831 [27] Meera Emmanuel, Even State has no authority to violate Article 21: What the Supreme Court said about Encounter Killings back in 2014, Bar and Bench, (Dec. 6, 2019, 11:00 PM IST), [28] R.Rathinam v. Kamala Vaiduriam, 1993 CriLJ 2661 [29] Deeksha Saggi, Custodial Deaths and Role of Judiciary: A Critical Analysis, Latest, (Jul. 25, 2020), [30] Prakash Singh v. Union of India, (2006) SCC 1 [31] Piyush, The Sordid Saga of Custodial Death In Tamil Nadu, SamVidhi, (Aug. 1, 2020),

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