Cops cannot get away with it

A police officer suspected a bullion merchant to be a thief and confiscated his jewellery. By the time the merchant proved jewellary was his genuine property, the confiscated gold and silver was stolen by a constable. When the merchant sued, the Supreme Court held neither the police nor the State was liable until a specific law was made imposing such liability.

The judgment (Kasturi Lal Ratan Ram Jain vs State of UP, AIR 1965 SC 1039) manifests the worst legal position which put people in jeopardy and undue immunity to public servants giving them licence to violate rights of people till the judge-made law laid down liability of the State.

If a police officer mistreats a citizen, injures either deliberately or by his negligence, violates his/her rights with excessive acts or acting beyond the scope of law, the injured person has a right to recover damages from the concerned police officer, if he/she can prove that it happened due to negligence of police personnel.

This falls under category of State liability for torts (civil wrongs) caused to citizen through its agents, i.e., public servants like the police. The Supreme Court has decided in many cases that the State cannot claim sovereign immunity, under British archaic rule 'King can do no wrong', and shall be liable for any injury caused to citizen. If for any reason the police officer's action is justified, because of command of superiors or he was under critical situation created by irresponsible political government, the State should be held liable to compensate the injured citizen.

The recent 'Chalo Assembly' left its scars on Hyderabad, rights of several thousand were violated and two teenagers injured. The police, who claimed to have helped restoration of law and order which was perceived to be disturbed by 'agitators for Telangana', did not care to 'clean' the place after a scene of 'war' where the police successfully prevented Osmania University students from marching towards the Assembly building. That "war" resulted in burn injuries to children when they lit an explosive powder after extracting it from used teargas shells at Tarnaka area adjoining Osmania University. The teargas canisters were fired upon students by police personnel during a clash over the march.

Who was responsible for the violation of Article 21 of 13-year-old Santosh Reddy and 17-year-old Vinod Reddy who playfully extracted the explosive powder (ammonium nitrate) from the shells, and lit the powder resulting in sudden explosion?

The police accused the children of negligently handling the fired/used teargas shells, nitrate and other explosive material in the shells. It is most unfortunate that they forgot that they had a duty not to injure people by such negligent operations. They are supposed to clean it up. Why did they not remove all remains of possible explosives?

The children can themselves, or through their parents or friends, can sue the concerned police personnel seeking compensation for the injuries they sustained which resulted from breach of duty. Neither the police nor the State can wash off liability blaming the boys for negligence because by negligently leaving explosives, the police facilitated irresponsible handling.

Police liability A research scholar, R V del Carmen, who wrote a paper on 'Civil and Criminal Liabilities of Police Officers (From Police Deviance, P 405-423, 1991, Thomas Barker, David L Carter, eds. -- See NCJ-128045) explained that the police officers face many sources of legal liabilities, including State and Federal laws and both civil and criminal codes. Although lawsuits against police are directed mainly at field officers, supervisory officials and agencies are increasingly being named as parties or defendants with direct or vicarious liability.

He advised that their legal liabilities be kept to a minimum; police officers should always act within the scope of their duties, know and follow departmental rules and regulations, keep accurate written records in controversial cases, maintain good relations with the community, and consult legal counsel or supervisors if in doubt about a course of action. See website of National Criminal Justice Reference Service https:// www.ncjrs.gov/ App/ Publications/ abstract.aspx? ID=128063)

The US law Federal civil rights lawsuits arising from police misconduct are brought under a law called 42 U.S.C.S. 1983, or "Section 1983." Basically, this law states: Every person who, under color of any statute of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person � to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. In other words, Section 1983 says that if someone is deprived of his or her rights by a government official, that person has the right to sue for monetary or other damages.

Article 1 of the New York State Constitution lists the rights of all individuals in the State. They include the right not to be discriminated against "because of race, color, creed or religion �by the State or any agency or subdivision of the State" (Section 11); "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures" (Section 12); and "the right � to recover damages for injuries resulting in death" (Section 16).

A lawsuit is a way for people who have suffered from police misconduct to hold the police accountable for their actions. Authors of the Indian Constitution, however, did not mention this important right of the people and specify the duty of the State agencies, especially the police, to be made liable and accountable to pay damages from their personal purse, for their wrongful acts. The judiciary came to the rescue of the citizen who died or suffered at the hands of police and ordered the State to pay compensation. There again individual wrongful police officers were not held liable.

If the State pays from its exchequer, it means people pay for their injuries. Eminent judges M N Venkatachalaiah and Jeevan Reddy in National Commission for Review of Working of Constitution discussed this position and said in their report in 2002, it is apparent that the law (relating to liability of the State in tort in India) is neither just in its substance, nor satisfactory in its form. It denies relief to citizens injured by a wrongful act of the State, on the basis of the exercise of sovereign functions � a concept which itself carries a flavour of autocracy and high-handedness.

They added: One would have thought that if the State exists for the people, this ought not to be the position in law. A political organisation which is set up to protect its citizens and to promote their welfare, should, as a rule, accept legal liability for its wrongful acts, rather than denounce such liability. Exceptions can be made for exceptional cases � but the exceptions should be confined to genuinely extraordinary situations, exhorted the report.

The Right to Information Act imposed a personal liability up to Rs 25,000 for wrongfully denial of information to the citizen. Similarly, liability to compensate wronged citizen should be fixed against the police in place of present practical immunity. The police should be educated that they do not have any authority to physically lift, drag, injure, confine or kill the citizen for opposing policies and acts of the government.

From not permitting "chalo Assembly" to illegally arresting agitators and negligently injuring children, the State and its police violated rights en masse, which should be questioned in plethora of lawsuits. A specific law should be made to make the State and its servants like police and babus liable for their excessive misconduct against people. No police enjoy immunity for injuring the people, under any rule of law, except in 'democratic' India!

(The writer is Professor & Head, Center for Media Law & Public Policy, NALSAR University, Hyderabad)