On Police and Power | Abhinav Sekhri

The use of force by police officers is a subject that continues to draw constant attention the world over and India is no exception. It is fair to state that police forces across the country have not been transformed post-independence from an autocratic force into a service for citizens. While very few of us question the predominant form of governance where the State has a monopoly on the use of force, police violence brings citizens face to face with the reality of what such a monopoly entails. The ambiguity in response — outrage at the deaths of some, celebration in the case of others — is perhaps only reflective of society’s own troubled relationship with the use of force.

Those musings aside, this short post takes up the issue of police violence from three specific viewpoints. First, I discuss why the abuse of powers by police officers matters and should matter. Second, I describe the excessive use of force as not an episodic problem which we witness only in cases of, say, custodial deaths and encounters, but as something that is deeply ingrained in every fibre of how the coercive state apparatus works in India. Third, I consider some ways in which this overarching coercive apparatus can be made slightly less overbearing each time a citizen enters the police station, in whatever capacity that might be.

The Very Visible Strong-arm   

Bad conduct by government officials is part of several tea-stall conversations across India. There is, of course, an emotive issue here — the consequences of misuse of power are grievous bodily harm. At the same time, the police as a government service are different. The police force is the most visible and recognisable form of state authority for citizens. It commands your respect, and by extension, requires that you respect the laws that the police seek to enforce. The misuse of powers by this branch of government casts a much deeper resonance than any other because this branch is far more pervasive than any other in the lives of citizens. Be it a traffic stop, a theft, an affray, serious violence, or just random patrolling — it is all done by the police in their (usually) khaki dress. It is for this reason that no matter how often we read about it and how bogged down we are by it, we must keep talking about how citizens are treated by the police in the everyday.   

A System of Violence

A closer look at this treatment reveals many discomfiting facts about the relationship between police and the citizens that it is meant to serve. No matter what capacity the citizen is in, of complainant or defendant, the relationship is marked by a gross imbalance of power. A degree of imbalance is natural and perhaps difficult to redress. But the gap between the state and citizen in the Indian context is so large that it renders all encounters oppressive. 

A key element of this is the imbalance of knowledge. Let us talk about complainants first. Aggrieved citizens unfamiliar with procedures are made to feel helpless upon being confronted with red-tape. It is quite common for the complainant to suffer a harangue about what she did not do in an encounter where she has approached the police for help. If she is lucky, the harangue might yet be followed by help. But alas, many of us are not that lucky, and we are only provided proof that our woes have been made part of the official record with no promise of action.

Naturally, things are much worse if you are a defendant or a suspect. This imbalance of knowledge is expressed by taking persons into custody and not informing them about the charges despite constitutional imperatives. It also involves questioning persons for hours on end without sufficient breaks; the questioning notably more coercive where the person is under arrest and in “police custody”. The use of force or placing a person under exacting mental pressure are common tools to extract desirable statements in pursuit of what is believed to be the truth. All of this happens without the presence of a lawyer to ensure that this search for truth is not impeded by pesky legal advice. 

Why do we not talk about this when we talk about police violence? I would argue that rather than focusing on the sensational stories, the innumerable micro-aggressions (which are often at least mid-level or serious aggressions visited upon defendants in police custody) are far more problematic. Focusing on this would require unravelling an established body of precedent which not only privileges such use of force by treating police questioning as an exchange between equal parties, but also openly supports the unique “advantages” that sustained custodial interrogation brings to an investigation. In other words, there needs to be a concerted effort to build and strengthen safeguards into the process of interacting with the police to ensure that this power gap is reduced over time.

Slowly Tilting the Balance of Power

A big problem like police violence merits a lot of suggestions about what can be done to make the nature of interactions with the police less oppressive and improve accountability. I will only offer two here: Improve the standing of defence counsel, and make compensation for victims a reality. 

In an adversarial system of justice, as ours claims to be, the purpose of the system is to facilitate the emergence of a truth through a contest between parties. The system accepts there is no “the truth” to be had, but the closest approximation to it is what we can get by allowing parties to present their perspective before the arbiter. What the Indian criminal process does is to tie the hands of the defence behind its back till the case reaches court. This not only reduces the quality of the trial, but more pertinently to our discussion, it seriously reduces the ability of a defendant to negotiate with coercive state power. The mere presence of another figure of power in the interrogation setting helps reduce the possibility of the most obvious forms of violence in the process, and this is something that we must explore as a system.

There is only so much that pre-emptive tactics and criticisms can do. We need a system that ensures greater accountability and provides closure to the victims of violence. While closure is hard to ensure and may require larger conversations on our ideas of criminal justice and punishment, one way to improve accountability for police violence is through a robust compensation regime. At present, the most common compensation regime is through executive grants announced in the wake of a grisly death. This route is not premised on holding officers accountable and is therefore necessarily limited as an answer. The most substantial answer exists in the form of filing a writ for compensation which would entail ascribing responsibility in the process as well. However, using this writ-route requires significant wherewithal on part of the victim. It translates into a prohibitively high entry-barrier and denies many victims what should be legitimately their due. This needs to change. At the same time, we must broaden the idea of police accountability to perhaps move into a more general sphere which also allows redressal to victims of crime where their pleas go unheard for weeks. 

At India’s independence, it was hoped that the “bully boys of the Raj” would transform into the “willing servants” of the citizens. That transformation is still a long way off. It will continue to remain so until we tackle the problem of police violence in a systematic and holistic manner, and not as an issue we only think relevant each time it finds its place in the 24-hour news cycle.

Abhinav Sekhri is a lawyer practicing in the Supreme Court of India and the Delhi High Court. He regularly writes about Indian criminal law and procedure in scholarly journals, newspapers, and on his blog The Proof of Guilt

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