It is strange that a democracy country such as India does not trust one of the most important administration organ of its elected government – THE POLICE . The ruling elite

and middle class citizens see them as political decoys and blame politicians for not letting

the police play their rightful roles in the society. The lower income classes , of course ,

feel intimidated by them and in constant fear of their convenient authority. It follows that

there is a grim lack of understanding about the nature and functions of the police in the country . The problems of the Indian police which run as deep as the design , structure ,

culture and leadership remain hidden. The Kerala police organization committee has

echoed these views vividly thus :

“The role of the police as guardians of law and order has undergone an important change

after the attainment of independence. The police force in the country was organised

nearly a century ago by a foreign government and during the stage for freedom by the

people, the police as the coercive arms of the government had to sub serve the interests of

the government then in power . They came to be looked upon with distrust and antipathy by

the people who considered them the instrument of aggression used by an alien

government “.Indian Police and its power : Res extra commercium is a doctrine

introduced by Chief Justice DAS of the supreme court of India in 1957 case,

state of Bombay v. R.M.D. Chamarbaugwala, which has the effect of constricting the scope of fundamental by rendering as constitutional outcasts certain purportedly “ immoral “ or “ noxious “ activities. It does this by blocking these activities from falling within the

purview of the protection of fundamental rights. At the core of this paper are three claims . First, it will be argue that though the court did not expressly spell it out, it was the doctrine of “ police power “( the specific conception of the doctrine advanced by justice Harlan of the U. S. Supreme court on Muffler v. Kansas ), which lies behind chief justice Das's invocation of res extra commercium. Second , it will be argue that chief justice Das did not openly invoke the police power doctrine in R.M.D. Chamarbaugwala because larger benches of the supreme court had earlier squarely rejected the important of the doctrine from American constitutional law ( including one earlier abortive attempt by Chief Justice DAS himself ) because of the structural differences between the Constitution of

united States and India as a result of which , at the time of decision in R.M.D. Chamarbaugwala was handed down , the jurisprudential climate was positively hostile to the doctrine. Curiously, however , the police power doctrine, now masquerading, as the

doctrine of res extra commercium has come to be well ensconced in the constitutional law of India virtually unchallenged for over four decades now. The reason for this anomaly will

be explored . Finally, the paper argues why the police power doctrine sought

to be imported by Chief Das under the verbal dressing of res extra commercium is incongruous with the scheme of the Indian constitution.Police personnel in India usually

subscribe two kinds of violations. The first is corruption against individuals or

institutes which usually target the income or livelihood of the victim. Traffic police extort money from drivers on a daily basis . Even hawkers, Street vendors and small time shopkeepers are familiar with the demand from the local police station . They are forced to

pay weekly payments or suffer extortion at the hand of policemen at frequent intervals simply to operate their business . Registration of cases , too ,requires a bribe to the police

station in charge . The second category of police is that of physical coercion

against suspects of crime or agitators. This misconduct is usually targeted at

lower income groups . These groups are

regularly subject to harsh physical treatment and even the innocent run the risk of having false cases registered against them . All custodial death are largely those of poor or lower class people. According to an ordinary fruit vendor Varanasi, the police , spurred by many

unrelated false charges, tortured him in an atrocious manner “ my hand and legs were tied; a wooden stick was passed through my legs. They started beating me badly on the leg within lathis and kicking me . They were saying , you must name all the members of the 13 person gang ‘. They beaten me until I was crying and shouting for help.

Ravi Nair , the man who heads the south Asia Human Rights Documentation centre said in a press conference that “ India has the highest number of custodial deaths among the democracies and the weakest law against torture. The police often operate in a climate of impunity , where torture is seen as routine police behaviour to extract confessions from

small pickpockets to political suspect”. In the aftermath of the emergency , a

period which saw great atrocities committed upon the citizenry by the police , there was a hue and cry against the police and demand for dismantling the central police organizations . The government of India appointed for dress examination of the role and performance of the police both as the law enforcing agency and as an institution to protect the rights of the

citizens enshrined in the constitution. it came out with three reports. the national police commission submitted their 8 volume report between 1979 and 1981 which contained recommendation to reorganize the police and give them a new face, a new style of functioning, functional independence strict accountability professionalism. In their second report submitted in August 1979 the commission in chapter xv dealt with “ interference and with misuse of police by illegal or improper orders or pressure from political executive or other extraneous sources - Remedial Measures”. Except for the formation of police associations as a result of national wide police agitation which , as apprehended , have today deteriorated to being support organization of various political parties , not one recommendation was implemented .

The third report of national police commission, referring to the quality of arrest by the police in India mentioned that “power of arrest was one of the chief sources of corruption of the police , the report suggested by that largely nearly 60%of the arrest were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of expenditure of the prison department” .

The power to facilitate abuse by the police is firmly set by sections 101 to 114 of the Indian Evidence Act, 1872 which claim that it is for the prosecution to prove the essential

element are proved , it is for the accused to prove that the case fall within the general or special exceptions to criminal liability recognized by the criminal law . As the law stands at present , there is no special provision as to the burden proof where injuries were

received by a person in police custody.

The case of state of UP v. Ram Sagar yadav was central to the 113th report of

the law commission of India which discussed the issue of injuries in police

custody. Account to this case , a farmer named Brij Lal had some difference

with his neighbourhood, who , in turn , field a complaint against Brij Lal for

cattle trespass . The police officer concerned demanded money from Brij

Lal in return for hushing up the matter . After persistent demand, Brij Lal offered a sum of rs. 100 to the constable who was unsatisfied with this paltry sum. Brij Lal complained to the

superintendent of the police who in turn forward the case for inquiry to the

station house office , Hussain gunj .

Engaged at this bold step taken by Brij Lal , the station house officer decided

to teach him a lesson and sent two other constables to bring him the police

station. Brij Lal was brought to police station at ten in the morning . By noon,

he was in critical condition and had to be taken in a state of shock to the

additional district magistrate. He couldn’t even walk into the courtroom .

The additional district magistrate went out into the verandah and found the

Brij Lal had nineteen injuries on his body . The ADM was able to record the dying deceleration of Brij Lal in which he charged the station house officer

and two police Constables with having caused the injuries by beating him up

while he was in police custody. Brij Lal died that evening.

The supreme court, in this case stressed the need to adopt a different approach

in an incident that involves allegations against the police.

The supreme court was anxious that the enforces of law and order do not

use their position for oppressing innocent citizens who look to them for

protection. The court noted that police officers “ bound by the ties of a kind of

brotherhood “ often prefer to remain silent in these kinds of situations and “

when they choose to speak , they often put their gloss upon the facts and often prevent the truth “ . The supreme court was anxious that police officers who commit atrocities on person in the clarify of the police do not escape punishment for want of evidence. The following observation occur towards the end of the supreme court judgement. The parliament established the National Human Rights commission to deal with such abuses but police torture continues unabated . According to the latest available government data

, there were 1307 reported death in police and judicial custody in India 2002.

Prakash singh v union of India :

The judgement was the first tangible step towards reform , it was only an

initial step. The central government , along with most state government significantly failed to implement the court's orders suggesting that official have yet to accept the urgency of comprehensive police reform which includes the need to hold police accountable for human rights violations.

CONCLUSION :In his pioneering study on police and political development in India , Bayley

pointed out that the “police can play a normative role in political development by virtue of what they do , how they do it, what they are and what they do to each other “ , he expanded this thesis further and argued that the police affect political development through the things they do , the nature of action they perform. The criminal justice system and in particular, the police have remained unchanged for the last 140 years . There has been no difference in the behavioural aspect of the police personnel either . Police personnel see themselves as rulers and guardians of the state , emphasizing order maintenance rather than service of the people. India is a nation where bureaucrats of every rank involve in notorious dealings undaunted by the police , the so called enforces of law and order , because these officials are practised in the art of bribery and influence. It is needless to emphasize that

accountability , transparency and access to information are imperative as safeguard to prevent ant abuse of the power to arrest a citizen . In D. K. Bash’s case, the supreme court laid down certain requirements to be allowed in all the cases of arrest or detention. Maladministration is discriminatory and denies quick justice to the citizen. There is proverb in Malayalam which reads as “ the carpenter ‘ s ignorance and the wood’s defects” which means that both are at fault . Similarly , both the public as well as the people are responsible for the enforcement of Justice in society

Authored by


(B.A.,LLB.,3rd year )






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