Exploitation of police immunity

Justice was half-delivered when the court convicted Derek Chauvin, a former American police officer, of the murder of a 46-year-old Black man named George Floyd on May 25, 2020. Videos that surfaced on the internet showed how Chauvin pressed his knee against Floyd’s neck, while he was handcuffed and his face down on the street, for up to nine and a half minutes, which made him unable to breathe and eventually led to his death.

No doubt, it triggered the biggest outcry against racial injustice in the US in generations. Notwithstanding this, the court imposed a sentence which fell short of the 30 years that the prosecutors had requested. With good behaviour, Chauvin, 45, could be paroled after serving two-thirds of his sentence, or about 15 years. Though the court cracked the whip of law on the culprit, it failed to deliver justice to the victim.

As several activists said, the extraordinary case begged amendments to laws and policies of the country to prevent atrocities in future on innocent persons. Apart from racial injustice, the case also reveals how authorities and political leaders exploit procedural immunities granted to police officers against the weaker sections of society.

In India too, a procedural immunity is granted under Section 197 of the Code of Criminal Procedure, 1973. By virtue of it, if any police officer is accused of any offence committed while performing duty, the court cannot initiate proceedings against them without the government's sanction.

An instance of exploitation of this provision was recently observed in India when P Jeyaraj, 62, and his son, J Bennix, 32, were beaten up for hours in the police station. Both died in hospital after a few days due to injuries inflicted by the cops. There are numerous Jeyaraj and Bennix who die due to torture and ill-treatment of police officers.

It is time now to seek changes in criminal laws to protect weaker sections from the exploitation of unreasonable criminal immunity granted to police officers. The question is: Why is it unreasonable? It is usual that authorities, especially for political reasons, deny sanction without any reasoned orders. Recently, the Gujarat government denied sanction to prosecute police officers accused in the Ishrat Jahan fake encounter case. Thus, it is an instrument which an authoritative government uses to achieve its ends with the help of police officers.

Even when a victim approaches the trial court for a remedy, he/she is asked to get the sanction first. And if the trial court somehow takes up the case for consideration, it is faced with the difficulty of determining whether the act committed by police was done during the discharge of official duties. Since police officers serve to maintain law and order by preventing crime and apprehending suspects, the act of police brutality on the accused or suspect is wrongly and consistently declared as an act committed in the discharge of public duties by trial courts.

Thus, it is usual that lower courts don't allow the prosecution of police officers for want of sanction. In exceptional circumstances, the cases reach the higher courts which allow them to prosecute the officers declaring that the act was not committed in the discharge of public duty. There are numerous victims of police brutality who are living without any redressal of their grievance.

This provision has caused more damage than serving the purpose it was enacted for. In Matajog Dobey v H C Bhari, it was held that public servants have to be protected from harassment in the discharge of official duties while ordinary citizens not so engaged do not require this safeguard. However, today, the situation is reversed. It is the ordinary person of the country who faces harassment from police officers and they need to be protected.

An instrument to harass

The government of the day, too, is reluctant to abolish the immunity because of the reason that police help it to achieve its political goals. Using police brutality, the government indirectly harasses activists and people who speak against its interests. The situation becomes worse when the accused is detained under anti-terror laws like the UAPA, where police custody can be extended to 30 days. It is now trite to say that today, the government has started invoking anti-terror laws against simple acts like organising protests against it.

The reason is that anti-terror laws make it near-impossible to get bail, and police custody gets extended beyond the normal period as provided under the Code of Criminal Procedure. Keeping its opposition in custody helps the government to take revenge through the channel of police officers. Apparently, under the current government, it seems impossible to get the law abolished.

The Supreme Court is considered as the guardian of fundamental rights. Any provision which infringes on any fundamental right needs to be set aside. Today, to say that the police stand on a different footing and thus, the equality code of Article 14 does not apply rather compounds the problem of inequality, especially for weaker sections. Today, it is not the police but the ordinary citizen who needs to be protected from the harassment of police officers and the government which commits torture through the channel of police.

Thus, the Supreme Court can abolish this law which infringes on Article 14 by granting already empowered police officers the immunity from prosecution. In addition, it infringes on Article 21 by depriving people of their liberty because of police torture and ill-treatment. The court can take the help of Article 39A which directs the state to ensure that the legal system works so as to promote justice on the basis of equal opportunity. By abolishing it, the court can prevent the usage of this weapon by the police and the government to commit atrocities on their opposition.

(The writers are students of Campus Law Centre, University of Delhi)