LEGAL ACCOUNTABILITY OF POLICE IN INDIA

SUBMITTED BY:

RAHUL VIKRAM PATHY

ROLL NO.- 26
EXAM ROLL NO.- 2110121021
LL.M- (CRIM.)- 2021-23

DATE OF SUBMISSION: 19.12.2022

,
MADHUSUDAN LAW UNIVERSITY CUTTACK
 DECLARATION

I, Rahul Vikram Pathy, student of LLM (Crim.) 2021-23, Madhusudan Law University,
Cuttack, hereby declare that the assignment submitted to the Madhusudan Law University,
Cuttack is a record of precise work done by me.

RAHUL VIKRAM PATHY

ROLL NO.-
26 EXAM ROLL NO.-
2110121021 LL.M- (CRIM.)-
2021-23

i
 ACKNOWLEDGEMENTS

I would specially like to thank my faculties 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
Madhusudan Law University, Cuttack. I owe my deepest gratitude to the library staff of the
college.

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.

RAHUL VIKRAM PATHY

ROLL NO.-
26 EXAM ROLL NO.-
2110121021 LL.M- (CRIM.)-
2021-23

ii
 LIST OF ABBREVIATIONS

AIR All India Reporter

Cri. LJ Criminal Law Journal

NHRC National Human Rights Commission

SCC Supreme Court Cases

iii
 Legal Accountability of the Police in India P-VIII

TABLE OF CONTENT

LIST OF ABBREVIATIONS................................................................................................................3

I: INTRODUCTION..................................................................................................................................5

II. PUBLIC AND PRIVATE LAWS.........................................................................................................7

III. The Police Complaints Authority.....................................................................................................15

IV. NHRC AS AN EXTERNAL MECHANISM OF POLICE ACCOUNTABILITY......................17

CONCLUSION.........................................................................................................................................20

BIBLIOGRAPHY.....................................................................................................................................21

4
 Legal Accountability of the Police in India P-VIII

I: INTRODUCTION

Given the reported failure of the state and central government to fully implement the
directions of the Supreme Court in Prakash Singh v. Union of India 1, in this paper we explore
the option of whether a judicial remedy in the form of a cause of action against police
officers in their individual capacity for violations of constitutional rights might enhance
oversight conducted by the Police Complaint Authorities.

In approaching this question, we discuss three broad mechanisms of external police

accountability- First, the establishment of independent police oversight boards in
accordance with Prakash Singh v. Union of India2 judgment of Supreme Court of India.
Second, it will deal with a judicial remedy in the form of cause of action against police
officers for violation of constitutional rights as a means of enhancing police accountability. It
will explore the judicially enforceable forms of accountability that flow from existing
criminal laws, public laws and private laws. Third, the National and State Human Rights
Commission (NHRC/SHRC) as a remedy for police misconduct are also briefly discussed in
the document. The memorandum will assess whether a shift towards a mechanism of
independent police oversight boards is to be preferred to the court based remedy under
criminal, private or public law. Before we begin with this discussion, it may be useful to
make a brief note of the quasi-federal nature of the Indian police organisation and some of the
developments on police reforms initiated in the recent years.

Under Article 246 of the Indian Constitution, ‘Police’ falls in the State List of the 7 th
Schedule, therefore it is within the scope of the respective State Governments to make laws to
regulate the police in their State. Although there is a strong federal character to police laws,
India is largely a quasi-federal nation and so the Central Government is also involved in the
regulation of police forces. For example, the recruitment of senior police officers of the
Indian Police Service (IPS) is a centralized process regulated by the All-India Services; there
are also several paramilitary forces such as Central Reserve Police Force or the Border
Security Force that fall under the Central Government; the Ministry of Home Affairs oversees
the police as well. The Indian Police Act, 1861 is the central statute governing the police in
India; most States either adopt this central law or have statutes that are modelled on it.

1
(2006) 8 SCC 1
2
Id.
5
 Legal Accountability of the Police in India P-VIII

In the past three decades, several measures have been initiated to make serious police
reforms. The National Police Commission submitted eight reports between 1978 and 1981
making various recommendations, but little action was taken to implement them. In the case
of Vineet Narian v. Union of India3 the Supreme Court noted the urgent need for
implementation of these reforms, following which the Ribeiro Committee submitted two
reports, in 1998 and 1999, the Central Government appointed Padmanabhaiah Committee
Report in 2000 and Malimath Committee Report in 2002. All of these reports culminated in
the Prakash Singh v. Union of India4 judgment of the Supreme Court. The judgment broadly
deals with three aspects of police organisation- autonomy, accountability and efficiency.5 The
Supreme Court gave detailed directions which are to be followed by the Centre and State
Governments until legislations in this regard are enacted.6 The directions include :- (1) each
State Government must constitute a State Security Commission to ensure that police are
protected from illegitimate political interference.

(2) fixing the selection and minimum tenure of Chief of Police (DGP); (3) minimum tenure
of other police officers including Inspector General of Police (IGP), Deputy IGP,
Supreintendents of Police in-charge of districts and Station Officers; (4) separation of
investigation function from ‘law and order’ functions; (5) setting up a Police Complaints
Authority; (6) setting up a National Security Commission; (7) setting up a Police
Establishment Board which will decide issues concerning transfers, postings, promotions and
other service related matters of officers below rank of Deputy Superintendent of Police.
Given the scope of this memorandum, we shall limit our discussion to the Police
Complaints Authority. Review of the applicable laws and rules, as well as the reported case laws on
this issue from various legal forums and have traced the evolution of principles in these precedents.
We have also reviewed the recent reports and studies on the police in India which provide a rich
source of empirical and statistical data, several articles on the subjects and relevant books, 7 although
there are few that focus entirely on the legal aspects of the police organisation in India. We now turn
to the first section of the memorandum which shall focus on the court-based judicial remedies.
This will be followed by a discussion on Police Complaints Authority post- Prakash Singh and in the

3
(1998) 1 SCC 226
4
(2006) 8 SCC 1
5
Mihir Desai “Red Herring in Police Reforms” in EPW (Vo. XLIV, No. 10; 2009) 9
6
Report: Seven Steps to Police Reform (Commonwealth Human Rights Initiative, 2010) Available at:-
[Link]
7
See for example; Sankar Sen “Enforcing Police Accountability through Civilian Oversight” (Sage, 2010); Kirpal
Dhillon “Police and Politics in India: Colonial Concepts, Democratic Compulsions” (Manohar, 2002); K.S.
Dhillon Adoption of Accountability and Oversight Mechanisms: The Case of the Indian Police in “Global
Environment of Policing” ed by: Darren Palmer, Michael M. Berlin and Dilip K. Das (CRC Press, 2012)
6
 Legal Accountability of the Police in India P-VIII

final section, the National Human Rights Commission (‘NHRC’) as a mechanism of police
accountability.

II. PUBLIC AND PRIVATE LAWS

One of the forms of external mechanism for holding the police accountable for misconduct is
through the courts, where complainants can directly sue police officers for alleged abuse of
powers. The police can be held liable under criminal law, public law or through private
tortious liability. Criminal law liability can be traced from inter alia the Criminal Procedure
Code, 1973 and the Indian Penal Code, 1860. Public law liability against police misconduct is
largely derived out of the Indian Constitution and administrative law, while liability in private
law against the police through torts has hardly taken hold in India as yet.

A. PUBLIC LAW LIABILITY

Public law liability with respect to police forces finds its source in the Constitution of
India and administrative law. For violation of fundamental rights stated in Part III of the
Constitution, such as right to life and liberty, protection against arbitrary arrests and illegal
detention, protection from discrimination and unequal treatment etc, the courts have
repeatedly held the police liable under public law and have imposed pecuniary liability on
the State as compensation for the harm caused. A series of Supreme Court judgments
beginning from the early 1980’s laid the foundational principles for holding the State liable
for police misconduct and abuse of power, making pecuniary compensation a significant
remedy for such violation of fundamental rights.

The precedent can be traced to the crucial 1983 case of Rudul Sah vs. State of Bihar8,
a three judge bench of the Supreme Court under writ jurisdiction, passed an order of
compensation for the violation of Article 21 and Article 22 of the Indian Constitution. In this
case, the petitioner was unlawfully detained in prison for 14 years even after his acquittal.
On finding that his detention was wholly unjustified, he demanded compensation for the
illegal detention. Although an ordinary remedy through a civil suit was available to the
petitioner for claiming compensation, the Supreme Court held that it wouldn’t be doing
justice merely by passing an order of release from illegal detention and in fact had the power
to direct the State Government to pay compensation. It ordered a sum of Rs 30,000 to be
paid by the State within two weeks of the order. In the two cases that immediately followed,

8
AIR 1983 SC 1086
7
 Legal Accountability of the Police in India P-VIII

in 1984, of Sebastian Hongray vs. Union of India9, the Supreme Court awarded
compensation for torture, agony and harassment of two ladies whose husbands had been
missing after they were taken to an army camp by army officials in Manipur, and for the
failure of the detaining authority to produce the missing persons. Exemplary costs were
awarded for the same and the single judge bench did so following Rudul Shah but without
indicating any further reasons. Similarly, in Bhim Singh vs. State of Jammu and Kashimr10,
the single bench Supreme Court awarded compensation to the petitioner for his illegal arrest
by the police. Bhim Singh was a member of the State Legislative Assembly of Jammu and
Kashmir. He had been illegally detained with the object of preventing him from attending the
session of the Legislative Assembly which was scheduled to be held on 11 September, 1985.
When efforts to trace him proved futile, his wife acting on his behalf filed a writ of habeas
to direct the respondents to produce him before the court and to declare his detention illegal.
The court concluded that “there was a clear violation Article 21 and 22(2) by the police
officers, who were in turn executing the orders they had received from higher echelons”. But
once again by merely relying on the precedents of Rudul Shah case11and Sebastian Hongray
case12, the court ordered the State of Jammu & Kashmir to pay Bhim Singh a compensation
of Rs. 50,000. Nor was any reasoning given on how the amount of compensation was fixed.

In Saheli vs. Commissioner of Police, Delhi13, a nine year old child was
severely beaten up by the police and later died. It was a clear case of misuse of sovereign
power. But this division bench judgment is a slight exception because unlike the previous
cases, it relies upon the decisions of Joginder Kaur vs. State of Punjab14and State of
Rajasthan vs. Vidhyawati15, to hold that the Delhi Administration is liable to pay
compensation of Rs. 75,000 to the mother of the deceased child. Here, State of Rajasthan v.
Vidhyawati was relied upon in order to argue that the State is responsible for the tortious acts
of its employees. Again, no reasoning was given as to why the compensation was fixed at Rs
75,000 other than stating that PUDR v. Delhi Police Headquarters and Anr16where a labourer
doing some work in the police station was severely beaten to death, and the court in that case
had directed the Delhi administration to pay Rs 50,000 as compensation.

9
AIR 1984 SC 571 and AIR 1984 SC 1026
10
AIR 1986 SC 494
11
AIR 1983 SC 1086
12
AIR 1984 SC 1026
13
AIR 1990 SC 513
14
[1969] ACJ 28 at 32
15
[1962] Supp 2 SCR 989 at 1007
16
(1989) 4 SCC 730 (Division Bench)
8
 Legal Accountability of the Police in India P-VIII

In State of Maharashtra vs. Ravi Kant Patil17, an under-trial prisoner was

handcuffed, arms tied with a rope and paraded through the streets, being subjected to
humiliation and indignity. The Supreme Court relying on Rudul Shah agreed with the
decision of the High Court that a compensation of Rs 10,000 be paid by the State
Government. The court however deliberated over the question of who is to pay the
compensation- whether the individual police officer is to be held liable or the State. Making
an argument of vicarious liability, the court stated that “He has acted only as an official and
even assuming that he has exceeded his limits and thus erred in taking the under-trial
prisoners handcuffed, still we do not think that he can be made personally liable.”

Nilabati Behara vs. State of Orissa18is a case of custodial death where the
mother reported the death of her son as a result of multiple injuries inflicted on him while he
was in police custody. A three judge bench of the Supreme Court in 1993 concluded that the
cause of death was police brutality which was a violation of fundamental rights and
hence awarded compensation under Article 32 of the Constitution. This is a crucial
judgment for crystallizing the principle by which erstwhile precedents ordered compensation
for violation of fundamental rights due to police misconduct. Clarifying the principle behind
this order as well as the precedents such as in Rudul Shah and Bhim Singh, the court observed
that award of compensation is a remedy available in public law based on strict liability for
contravention of fundamental rights. It went on to state that the principle of sovereign
immunity is inapplicable in cases that are in contravention to fundamental rights, even
though doctrine may be applicable as a defence in private law in an action based on torts. It
therefore directed the State of Orissa to pay a compensation of Rs 1,50,000/- to the petitioner
and a sum of Rs 10,000 as costs paid to the Supreme Court Legal Aid Committee, an amount
much higher than what the Supreme Court previously ordered.

In PUCL vs. Union of India19 the issue before the Supreme Court was
whether it is open to the State to deprive a citizen of his life and liberty otherwise than in
accordance with the procedure prescribed by law and yet claim an immunity on the ground
that the said deprivation of life occurred while the officers of the State were exercising the
sovereign power of the State. The Court concluded in the negative. Relying on the Nilabati
Behara case20, the court ruled that monetary compensation is an appropriate and indeed an

17
AIR 1991 SC 871 (Single Bench)
18
AIR 1993 SC 1960
19
AIR 1997 SC 1203
20
AIR 1993 SC 1960
9
 Legal Accountability of the Police in India P-VIII

effective remedy in case of infringement of the fundamental right of life of a citizen by a

public servant of the State who is vicariously liable for their acts. The claim of the citizen is
based on the principle of strict liability to which the defence of sovereign immunity is not
available and the citizen must receive the amount of compensation from the State. In A.V.
Janaki Amma And Ors. vs Union Of India21the court has observed that “it has been well
established that for violation of fundamental rights guaranteed under Article 21 of the
Constitution of India, public authorities, officials and the State are liable to pay
compensation. Public law courts in India exercising powers under Articles 32, 136 and 226 of
the Constitution of India can award compensation in public law. Such remedy is in addition
to the remedy in tort in private law.”

Exercising its epistolary jurisdiction, in Sube Singh v. State of Haryana 22, a writ under
Article 32 was instituted in the Supreme Court, based on a letter it received from the
petitioner alleging illegal detention, custodial torture and harassment to family members of
the petitioner. The three judge bench of the Supreme Court furthered the principle in Nilabati
Behra23 by asserting that compensation as a remedy will be available only if the violation of
Article 21 involving custody death or torture is “established or is incontrovertible” as
opposed to cases where the violation is “doubtful or not established”. It suggested that courts
must although zealously protect fundamental rights of those illegally detained or subject to
custodial violence, but should also stand guard against false, motivated and frivolous claims
and to enable the police to discharge their duties fearlessly and effectively (para 45).

In effect, the Sube Singh judgment placed a limit to compensations to cases where (1)
the violation of fundamental rights is patent and incontrovertible; (2) the violation is gross
and of a magnitude to shock the conscience of the court. The court did not award any remedy
in this case on grounds of lack of clear and incontrovertible evidence or any medical report of
injury or disability caused thereby.

The following points are clear from a perusal of the aforementioned precedents.
Firstly, It is clear that a violation of fundamental rights due to police misconduct, can give
rise to a liability under public law, apart from criminal and tort law. Secondly, that pecuniary
compensation can be awarded for such a violation of fundamental rights. Thirdly, it is the
State that is held liable and therefore the compensation is borne by the State and not the
21
2004 (1) ALD 19
22
(2006) 3 SCC 178
23
AIR 1993 SC 1960
10
 Legal Accountability of the Police in India P-VIII

individual police officers found guilty of misconduct. Fourthly, the Supreme Court has held
that the standard of proof required for proving police misconduct such as brutality, torture
and custodial violence and for holding the State accountable for the same, is high. It is only
for patent and incontrovertible violation of fundamental rights that such remedy can be made
available. Fifthly, the doctrine of sovereign immunity does not apply to cases of fundamental
rights violation and hence cannot be used as a defence in public law. Largely, the nature of
cases where the Supreme Court has interfered have been of extreme police misconduct, such
as custodial deaths, police brutality, torture and forced disappearances. It is in cases of
clear and “gross violence that shocks the conscience of the court”24, that the Courts have
repeatedly ordered the State to compensate the victim and the victim’s family. No set
principle has evolved on how the quantum of compensation is to be calculated.

Unlike the vicarious liability in public law, criminal liability of police officers is personal in
nature.

B. Criminal Liability

For criminal liability, the Code of Criminal Procedure, 1973 (CrPC) gives procedural
safeguards to government servants in order to be able to prevent vexatious litigation against
an official who is performing a public function.25 Police officers have been held to have the
protection of Section 197 of CrPC and more narrowly, under Section 132 of the CrPC. The
requirement of the aforementioned section is that sanction be received from the Central or the
State Government before any criminal proceeding is instituted against a police officer alleged
to have committed a criminal offence “while acting or purporting to act within the discharge
of his official duty”. Similarly, Section 132 mandates sanction of the government against
prosecution of police officers for any act purporting to be done under section 129 to 131
CrPC, which deals with controlling an unlawful assembly that is alleged to have caused a
breach of peace. Under Section 132, if the accused police officer is able to show that he/she
attempted to disperse the unlawful assembly and on the failure of which, used force, then
he/she gets the protection under Section 132.26

P.P. Unnikrishnan v. Puttiyottil Alikutty27 is a case where two police officers were
accused of having kept a complainant illegally in lock-up for several days and torturing him.

24
(2006) 3 SCC 178
25
Jaysingh Wadhu Singh v. State of Maharashtra, 2001 CrLJ 456 at 473
26
Nagraj v. State of Mysore AIR 1964 SC 269
27
AIR 2000 SC 2952
11
 Legal Accountability of the Police in India P-VIII

The division bench of the Supreme Court had to deal with a defence raised by the police
officers under Section 64 of the Kerala Police Act wherein there are procedural safeguards
against initiation of legal proceedings against police officers acting in good faith in
pursuance of any duty imposed or authority conferred by the State. The Supreme Court
considered this provision to be based on the rationale of Section 197 of the CrPC. Therefore,
the Supreme Court discussing the scope of Section 197(1) held that “There must be a
reasonable connection between the act and the discharge of official duty; the act must bear
such relation to the duty that the accused could lay a reasonable, but not a pretended or
fanciful claim, that he did it in the course of the performance of his duty.” The court goes on
to give an example where, if a police officer wrongly confines a person in lock-up for more
than twenty-four hours without sanction of the court or assaults a prisoner, such police officer
is not only abusing his duty but is acting outside the contours of the duty and therefore would
not get the protection under Section 197 CrPC. A single bench of the Gujarat High Court
applied this interpretation of Section 197 in a case of torture in police custody that lasted for
three days. The accused police officers dragged the legal proceedings for years, inter alia on
the plea of protection of Section 197 CrPC.28 Relying on the Unnikrishnan judgment and the
inherent powers recognised in Section 482, CrPC 29 to make such orders as may be necessary
to prevent abuse of the process or to secure the ends of justice, it held that the accused police
officers would not get the protection under Section 197 because their acts of torture were
clearly outside the scope of their official duty.

Another case in point is Uttarakhand Sangharsh Samiti v. State of U.P.30 where a

division bench of the High Court of Allahabad was faced with a case of mass human rights
violations including firing by the police and paramilitary forces on an assembly of protestors,
resulting in the loss of twenty four lives, mass scale molestation and rape, illegal detentions
and incarceration of large number of persons. In this case, when the question of a sanction of
the State Government under Section 197 of CrPC came up, the division bench held that “it is
not every act done by a public servant while on duty which falls within the purview of S. 197
but only those acts which have direct nexus to the discharge of official duty.” Relying on
Privy Council as well as Apex Court judgments” 31 it was stated that acts of wrongful restraint
28
S.S. Khandwala (I.P.S.) Addl. D.G.P. and Ors v. State of Gujarat (2003) 1 GLR 802
29
See; Mary Angel v. State of Tamil Nadu AIR 1999 SC 2245 on the extraordinary power which is to be
exercised only in extraordinary circumstances.
30
(1996) 1 UPLBEC 461
31
H.H.B Gill v. The King AIR 1948 PC 128; Amrik Singh v. State of PEPSU AIR 1955 SC 309; MatajogDubey v.
H.C Bhari AIR 1956 SC 44; Balbir Singh v. D.N. Kadian AIR 1986 SC 345

12
 Legal Accountability of the Police in India P-VIII

and detention, planting weapons to show fake recoveries, deliberate shooting of unarmed
agitators, tampering with or framing incorrect records, commission of rape and molestation
etc are neither acts done, nor purported to be done in the discharge of official duties. No
sanction of the Government is required in ordering prosecution of such public officials. It
granted exemplary damages of Rs 10 lakhs to the 24 persons killed, Rs 10 lakhs to each of
the women raped and Rs 5 lakhs to each of the women molested.

Given the precedents, the following conclusions can be made. Firstly, the procedural
safeguard under Section 197 CrPC is available only if the accused police officer is able to
show that the alleged criminal act was in the course of performing an official duty. Hence, in
order to understand whether prosecuting a police officer requires sanction or not, hinges on
the question of whether the conduct of the offending officer was in the course of his/her
duties. Secondly, the test for whether the action of the police was in the course of
performance of duty is if the action has direct nexus to that duty or not. Thirdly, acts in
violation of fundamental rights have never been considered as being in course of official
duties by the Apex Courts.

However, it has to be noted that the procedural safeguards under Section 197 CrPC is
often misused by the police by not allowing the complaints or First Information Report
(FIRs) to be filed in the first place, thus being a major hurdle as an effective remedy for
misconduct.32

C. Liability in Private Law

There is no doubt that the State can be held accountable under private law through a civil
suit for compensation, for violation of fundamental rights caused by police misconduct. But
precedents suggest that it is writ petitions under public law that has been used as a remedy, to
the exclusion of private law. The courts have repeatedly clarified right from the Rudul
Shah33judgment, and later restated in Nilabati Behera v. State of Orissa that in cases of
violation of fundamental rights, the remedy of compensation available under the writ
jurisdiction, Art. 32 and 226 of the Indian Constitution, is distinct and in addition to the
available ordinary processes under a private law remedy.

The question of sovereign immunity came up again in front of a five judge bench of the

32
Report: Accountability For The Indian Police: Creating An External Complaints Agency (HRLN, 2009)10-11;
also see; Report: Torture in India 2011 (Asian Centre for Human Rights, 2011)
33
AIR 1983 SC 1086
13
 Legal Accountability of the Police in India P-VIII

Supreme Court in Kasturilal Ram Jain v. State of UP34 where a suit was filed against the State
of U.P. asking compensation for the missing gold ornaments that the police had lost due to
their negligence. In this case however, the Supreme Court applied the principle of sovereign
immunity and held that because it was in the course of employment of a government servant,
the police officers have sovereign immunity in such cases. Distinguishing itself from State of
Rajasthan v. Vidyawat35, it held that the duty of a government driver was not a sovereign
function, but the duty of a policeman was an exercise of sovereign power and therefore has
immunity from tortious liability. Although the Kasturilal judgment is yet to be overruled, it
has been largely criticised by authorities, and subsequent decisions of the Supreme Court
have greatly undermined its authority. The entire gamut of precedents discussed in this
memorandum, from the Rudul Shah judgment, and more directly, Saheli vs. Commissioner of
Police, Delhi36 and Nilabati Behara vs. State of Orissa which rely on State of Rajasthan v.
Vidyawati and distinguish themselves from Kasturilal Ram Jain v. State of U.P., do not
consider the defence of sovereign immunity in such cases of police misconduct.

Quantum of Punishment in Appeals From Disciplinary Proceedings

The police can be held liable for violating laws and rules through internal mechanisms of
remedial action such as those established under the Police Act, 1871 or any of the other laws
regulating them. The Police Act, 1871 for example lays down offences and processes such as
Section 7 of the Act which deals with the “Appointment, dismissal, etc of inferior officers” or
Section 29 that deals with “Penalties for neglect of duty etc”. Such proceedings usually take
place through internal disciplinary authorities that collect evidence and pass binding orders.
These orders can be appealed to the High Court and the Supreme Court. Concluding this
section, the following points maybe noted: Firstly, based on a reading of the precedents, it is
clear that for violation of fundamental rights, a writ under public law has been the most used
remedy as opposed to a civil remedy under torts. Second, in cases of violation of fundamental
rights, sovereign immunity is not available as a defence; Third, a civil remedy under torts is
more suitable when the claim to compensation is based on controversial facts. On the other
hand, public law remedies require a clear and gross violation of fundamental rights. Fourthly,
the punishment ordered in internal disciplinary proceedings can be appealed to the higher
courts but the power of these courts to interfere with the order is limited to testing the
punishment on grounds of proportionality.
34
AIR 1964 SC 1039
35
AIR 1962 SC 933
36
AIR 1990 SC 513, 1989 SCR 488
14
 Legal Accountability of the Police in India P-VIII

III. The Police Complaints Authority

The Police Complaints Authority (“PCA”) is a mechanism that was introduced in the Prakash
Singh v. Union of India judgment of the Supreme Court in 2006. As per the Model Act,
which incorporates the recommendations of the Supreme Court, the PCA is essentially a body
that can receive and hear complaints against officers of all ranks. It is to be established at the
State and the District level. The State level authority is suppose to look into allegations of
“serious misconduct” against officers of the rank of Superintendent of Police and above,
while the District level is to look into all complaints against police officers of and up to the
rank of Deputy Superintendent. Interestingly, there is a distinction between the types of
complaints that can be heard against officers; while for the higher level officers, only
complaints of serious misconduct can be entertained, against the lower level officers,
complaints of any nature can be heard. As per the Supreme Court judgment, the PCA can
take cognizance of complaints made either by the victim or the victim’s representative. Some
State laws allow the PCA to initiate inquiry suo moto. The authority is to have the powers of
the civil court under the Code of Civil Procedure, 1908 including power to summon witness,
compel appearance, inquiries, compel registration of First Information Report (FIR) against
errant officers or initiate departmental inquiries. Following the Soli Sorabjee report which
drafted the Model Police Act, it recommends that the Commission should have five members
– a retired High Court judge, a retired police officer, a person with minimum 10 years of
experience (judicial officer, public prosecutor, practicing advocate, or a professor of law), a
person of standing from the civil society member and a retired officer with public
administration experience.37 It also recommends that at least one member should be a woman
and the not more than one member should be a retired police officer in the rank of the DGP.

As the Commonwealth Human Rights report notes, much of the recommendations and
significant provisions of the model law have not been adopted. Till date, only eighteen
states have passed legislations in partial conformity with the Model Act and the Prakash
Singh judgment.38 Only six states- Assam, Goa, Haryana, Kerala, Tripura and Uttarakhand,
and four Union Territories- have PCA’s which are actually operational at the ground level,

37
See Section 160, The Model Police Act, 2006
38
Assam, Arunachal Pradesh, Jharkhand, Meghalaya, Bihar, Chhattisgarh, Goa, Gujarat, Haryana, Himachal
Pradesh, Kerala, Maharashtra, Rajasthan, Sikkim, Tripura, Orissa, Punjab and Uttarakhand. Report:
Accountability For The Indian Police: Creating an External Complaints Agency (HRLN, 2009)
15
 Legal Accountability of the Police in India P-VIII

while Kerala is the only state which has the PCA functioning at state as well as district
levels.39 As per the Supreme Court orders, the members of the PCA have to be chosen by the
government from a panel prepared by the Chief Justice and the State Human Rights
Commissions, the Lokayukta and State Public Service Commission. In practice however, all
present members of the functional PCAs have been appointed directly by the State
Governments, without exception.40

39
Police Reforms: Complaints Authorities in States a non-starter, The Hindu (April 11, 2013)
40
Report: Police Complaints Authorities: Reform Resisted (Commonwealth Human Rights Initiative, (2011)

16
 Legal Accountability of the Police in India P-VIII

IV. NHRC AS AN EXTERNAL MECHANISM OF

POLICE ACCOUNTABILITY
The National Human Rights Commission (“NHRC”) was established on October 12, 1993
under the Protection of Human Rights Act, 1993 (“Act”). Under the Act, the NHRC/SHRC’s
have the power to enquire suo motu or upon petitions filed on matters pertaining to human
rights violations. It may intervene in any judicial proceedings on human rights, summon or
seek attendance of witnesses, procure documents and evidence, visit prisons and detention
centres, make recommendations to the Government. Every death in police and judicial
custody is to be reported to the NHRC for its scrutiny irrespective of such death being natural
or otherwise.41 The Commission is constituted largely of retired Supreme Court and High
Court judges and two members are chosen from among people with knowledge of or
experience with matters involving human rights. The Commission, along with the various
State Commissions, has the power under Section 18(c) of the Act to grant compensation in
case of human rights violations by the police after an inquiry.42 As a norm, the NHRC grants
compensation as a form of relief in all cases of police misconduct. But the biggest limitation
of the Act is that, under Section 18, if the NHRC through inquiries has proven certain human
rights violations, the Commission is limited to advising the government to prosecute the
concerned persons or grant relief to the victim. This mere recommendatory power has made
NHRC a weak mechanism for accountability.
The NHRC for public information purposes, has categorised its cases into custodial
deaths, police excesses, fake encounters, cases relating to women/children, atrocities on
Dalits and minorities, bonded labour, armed/paramilitary forces and other cases. The only
available public information about NHRC is through its Annual Reports, and these Reports
provide only selective, limited and cursory information43. Further, none of the Annual
Reports from 2010 onwards are accessible. In 2002-2003, 68,779 cases were registered out
of which 67,354 were human rights violations, 1,340 were custodial deaths, 2 were custodial
rapes and 83 related to police encounters.44 By the end of 2003, 43,010 cases remained
pending while the NHRC ordered compensation amounting to Rs 31,40,000/- to be paid in
39 cases. Through 2004-05, 75,000 complaints were filed with the NHRC, and as on 31st
March, 2005, 50,000 were pending.45 90,946 cases were registered in NHRC in 2008-09
41
NHRC Guidelines on Procedure to be followed in case of Death during Police Action (12 May, 2010); NHRC
Booklet/Instructions of Custodial Deaths/Rapes (14 December, 1993)
42
Section 18(c), Protection of Human Rights Act, 1993
43
Section 20 Protection of Human Rights Act, 1993 mandates the submitting of Annual Reports
44
National Human Rights Commission Report (2002-2003) (New Delhi, 2003) 168, 169
45
Josh Gammon, “A Meek, Weak NHRC” in Combat Law (Vol. 6, Issue 4, 2007) 72
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 Legal Accountability of the Police in India P-VIII

while 82,021 cases were registered during 2009-2010. Of the cases that were registered
during the year 2009-10, 80,260 cases were complaints of alleged human rights violations,
1,599 cases were about intimations of custodial deaths and 111 pertained to encounters (104
encounters by Police and 7 encounters by Defence Forces).46 Further, the NHRC does not
seem to follow any set principle for the calculation of the compensation payable in the
various cases. In a case of police torture in Rajasthan in 1994, the NHRC awarded
compensation of Rs 50,000 to the dependents of the deceased, even though no external
injuries had been noticed in the inquest and the post-mortem report. 47 In another case in 1999-
2000, a complainant asked for compensation of Rs 6 lakh for the dependants of a labourer
who was beaten brutally by the police during a raid on a gambling place. Ultimately, the
NHRC granted compensation of Rs 2 lakh to be paid by the State government. 48
Compensation ranging from Rs 10,000 to 1 lakh is granted in most cases of custodial
violence and torture62 while in cases of false implication, the amount of compensation
awarded has tended to be on the higher side, ranging between Rs 10,000 rupees to Rs 10
lakhs.49 Compensation has also been awarded for causing mental agony, harassment and
humiliation to the complainant and members of her family.50

The Commission has also held that the grant of interim relief did not depend upon the
outcome of any trial proceedings, whether criminal or departmental, and that it has power to
grant immediate interim relief in those cases where a prima facie case was made out for
violation of the victim’s human rights.51 In this respect, the NHRC, in the case of custodial
torture of Zamir Ahmed Khan,52 observed as follows: “It is well-settled and hardly requires
any elaboration that the pendency of a case either in this criminal or civil court for any other
relief is no ground to keep in abeyance the disciplinary proceedings. Even otherwise, the
standard of proof required for taking action in any disciplinary proceeding is of ‘greater
probabilities’, as against ‘proof beyond reasonable doubt’ in a criminal proceeding. In the
present case, the mere fact that the magisterial inquiry has already recorded a finding as
above, is sufficient for the disciplinary proceedings to continue as well as for this
Commission to award “immediate interim relief” under section 18(3) of the Protection of
46
National Human Rights Commission Annual Report 2009-2010 at 15.
47
Police torture and death: Rajasthan (Case No. 144/93-94/NHRC)
48
Torture by Kerala Police which led to Death of Hussain (Case No.64/11/1999-2000)
49
Rajiv Rattan (Case No. 9302/95-96); Madhya Pradesh Case No.667/12/98-99-FC; Uttar Pradesh Case No.
13501/24/2000-2001; Case No. 144/93-94/NHRC
50
Sarita Sahu Case (Jharkhand Case No. 974/34/2001-2002)
51
Jagdish Kawale Case (Maharashtra Case No.1585/13/2001-2002); Jagannath Shaw Case (West Bengal
Case No.:118/25/2002-2003)
52
Uttar Pradesh Case No. 14071/24/2001-2002
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Human Rights Act, 1993, which jurisdiction is attracted the moment a strong prima facie
case of violation of human rights is made out.”
It awarded compensation of twenty thousand rupees to the victim, but the Uttar Pradesh
Government protested that the victim had not sustained any grievous injuries. The NHRC
condemned the attitude of the government:“The custodial torture is the clear finding reached
in the magisterial inquiry itself. The insensitivity depicted in the letter of the Government of
Uttar Pradesh where it says that payment of the amount does not appear to the proper
because there was no serious injury caused to the victim, is disturbing. Custodial torture even
without inflicting any visible injury would justify award of some compensation and
disciplinary action against the delinquent police personnel. It is not necessary to say
anything further in this connection except to reiterate the recommendation for payment of the
above amount to the victim which is done herby.”
Thus, the attitude of the NHRC with respect to awarding interim monetary relief in cases of
police abuse seems to be the norm rather than an exercise of discretion. However, the amount
of compensation awarded seems to be arbitrary, given the wide range of the amounts awarded
in particular species of cases, such as false implication and illegal detention. The NHRC also
stipulates in its orders that the State may recover the amount from the errant officer, but the
compensation to the victim/dependants must be paid by the State. Further, there is little
evidence to show whether the recommended compensation was actually administered or
not53. Independent reports that analyze the performance of NHRC, all suggest the necessity of
broad reforms.54 They indicate under-staffing, overwhelmingly large caseload and inefficient
management as some of the major causes for its lack of effectiveness.55

53
Report: National Human Rights Commission of India: Time to Stand Up and Speak Out (Asia Pacific Human
Rights Network, 2004)
54
See for example; Report: “Preparing for a Fresh Start” (McKinsey & Company, 1997); Staff Inspection Unit
Report (1999)
55
Josh Gammon, “A Meek, Weak NHRC” in Combat Law (Vol. 6, Issue 4, 2007) 73

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CONCLUSION

In this memorandum, we looked at three broad mechanisms of external police accountability-

1) Judiciary-based accountability 2) Police Complaints Authority and 3) National and State
Human Rights Commissions. Under Judiciary-based accountability, victims of police
misconduct have remedies either under public law, private law or criminal law.
Compensation is awarded to the victims or their representatives in all these three forums.
However, the public law remedy is the most commonly used platform almost to the exclusion
of private law remedies under tort. In private law, although the doctrine of sovereign
immunity is not considered a defence, but if it is argued that the action of the police is in
direct nexus and in the course of the duty, it is still considered a defence under tort law.
Private law remedies therefore are more suitable in cases where the cause of action and
evidence is more controversial and doubtful. Protection of fundamental rights of citizens
from police excesses has largely been restricted to the High Court or the Supreme Court
although even lower courts have jurisdiction to try these matters and pass orders of
compensation. The procedural safeguard available to police officers is a hurdle while
instituting criminal complaints against them. Although courts have held that sanction of
the government under Section 197 and 132 of the CrPC is not required, it is often a misused
provision, preventing lay-persons from registering FIRs against them. Police excesses often
cause harassment and injuries but may not necessarily amount to a violation of
fundamental rights. In such cases, criminal law and private law based remedies are more
suitable and hence have to be strengthened at the level of the lower courts, avoiding an
excessive reliance on the writ jurisdiction of the High Court and the Supreme Court. The
second mechanism of accountability we discussed is the PCA as suggested by Prakash Singh
judgment of the Supreme Court and incorporated into the model law. But only a limited
number of States have implemented these recommendations and hence, this mechanism has
not yet really taken flight yet. Although it provides the necessary institutional design for
being a potentially effective mechanism for police accountability, there are little signs of
political will to implement this on the ground level. Lastly, we discussed the NHRC and the
SHRC’s which have been functioning since 1993. In all their orders where police misconduct
has been proved, as a norm, compensation has been granted as a remedy. Yet they are also
beset with institutional problems such as a massive number of pending cases and a lack of
funding and capacity to handle the quantum of cases, understaffing, inefficient functioning
and lack of political will for reforms.
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BIBLIOGRAPHY
 Reports:

 Report: Accountability For The Indian Police: Creating An External Complaints

Agency (HRLN, 2009)10-11;
 Report: Torture in India 2011 (Asian Centre for Human Rights, 2011)
 Report: Police Complaints Authorities: Reform Resisted (Commonwealth Human
Rights Initiative, (2011)
 National Human Rights Commission Report (2002-2003) (New Delhi, 2003) 168,
169
 Report: “Preparing for a Fresh Start” (McKinsey & Company, 1997); Staff
Inspection Unit Report (1999)
 Report: National Human Rights Commission of India: Time to Stand Up and Speak
Out (Asia Pacific Human Rights Network, 2004)
 Articles:

 Josh Gammon, “A Meek, Weak NHRC” in Combat Law (Vol. 6, Issue 4, 2007) 73

 Josh Gammon, “A Meek, Weak NHRC” in Combat Law (Vol. 6, Issue 4, 2007) 72

 Police Reforms: Complaints Authorities in States a non-starter, The Hindu (April

11, 2013)
 Websites:




 [Link]
 [Link]
seven_steps_to_police_reform.pdf

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