Police deviance: legal restraints and the Supreme Court's police reforms

1. Forms of police deviance

• Custodial violence: torture to extract confessions, custodial rape, custodial deaths.
• Illegal arrest and detention: arrest without need, detention beyond twenty-four hours without production, unrecorded detention.
• Fake encounters: extra-judicial killings presented as self-defence.
• Refusal to register FIRs, especially by the poor, women and Dalits, or registration of false cases against them.
• Corruption and extortion: bribes for registering or not registering cases, for bail opposition, for “protection” of illegal business.
• Collusion with criminals and with politicians; partisan conduct during riots and elections.
• Fabrication of evidence and planting of recoveries.

Causes: the colonial structure of the Police Act, 1861, built for control rather than service; political interference in transfers and postings; pressure for quick results; poor training in scientific investigation; heavy workload; the inadmissibility of police confessions, which tempts officers to use force to obtain “recoveries” instead; and the rarity of prosecution of police officers.

2. Constitutional restrictions

• Article 20(3): no person accused of an offence shall be compelled to be a witness against himself.
• Article 21: life and personal liberty, read to include freedom from torture and cruel treatment, the right to a fair investigation and the right to dignity in custody.
• Article 22(1) and (2): the arrested person must be told the grounds of arrest, may consult a lawyer of his choice, and must be produced before the nearest magistrate within twenty-four hours.
• Articles 32 and 226: habeas corpus and, since Nilabati Behera v. State of Orissa, 1993 INSC 113, (1993) 2 SCC 746, compensation as a public law remedy for custodial death, on the basis of strict liability of the State, to which sovereign immunity is no defence.

3. Statutory restrictions

Bharatiya Nagarik Suraksha Sanhita, 2023 (old CrPC sections in brackets):

• Arrest without warrant only on the conditions in section 35 (ss.41, 41A), including the notice of appearance in place of arrest for offences punishable up to seven years.
• Duties of the arresting officer, section 36 (s.41B): visible identification, arrest memo attested by a witness and countersigned by the arrested person.
• Right to meet an advocate during interrogation, section 38 (s.41D).
• Communication of grounds and right to bail, section 47 (s.50); information to a relative or friend, section 48 (s.50A).
• Medical examination of the arrested person, section 53 (s.54).
• No detention beyond twenty-four hours without a magistrate's order, section 58 (s.57); remand only under section 187 (s.167).
• A Magistrate's inquiry, in addition to the police investigation, whenever a person dies or disappears, or a woman is alleged to have been raped, in police custody, section 196(2) (s.176(1A)).
• Sanction to prosecute a public servant for acts done in official duty, section 218 (s.197), which courts have held does not protect torture, since torture is no part of duty.

Bharatiya Sakshya Adhiniyam, 2023: a confession caused by inducement, threat or promise is irrelevant (section 22, old Evidence Act s.24); a confession to a police officer, or made in police custody except before a magistrate, cannot be proved (section 23, old ss.25 and 26).

Bharatiya Nyaya Sanhita, 2023: voluntarily causing hurt or grievous hurt to extort a confession (section 120, old IPC ss.330 and 331); wrongful confinement to extort a confession (part of the section 127 group, old s.348); custodial rape is an aggravated form of rape (section 64(2)).

Other law: the Protection of Human Rights Act, 1993 (the National and State Human Rights Commissions, which must be informed of every custodial death); the State Police Acts (in Karnataka, the Karnataka Police Act, 1963); departmental discipline.

4. The judicial guidelines

• Joginder Kumar v. State of U.P., 1994 INSC 170, (1994) 4 SCC 260: no arrest merely because the power exists; the officer must be able to justify it; the arrested person may have a friend or relative told.
• D.K. Basu v. State of West Bengal, 1996 INSC 1508, (1997) 1 SCC 416: eleven requirements on arrest and custody, now largely enacted in the BNSS; failure exposes the officer to departmental action and contempt.
• Lalita Kumari v. Government of U.P., 2013 INSC 748, (2014) 2 SCC 1: registration of an FIR is mandatory where the information discloses a cognizable offence.
• Arnesh Kumar v. State of Bihar, 2014 INSC 463, (2014) 8 SCC 273: a checklist before arrest for offences punishable up to seven years, and magistrates not to authorise detention mechanically.
• Paramvir Singh Saini v. Baljit Singh, 2020 INSC 672, (2021) 1 SCC 184: CCTV cameras with night vision and audio in every police station, including entry points, lock-ups and interrogation rooms, and in the offices of central agencies that arrest and interrogate (CBI, ED, NIA and others).

5. Police reforms: Prakash Singh

In Prakash Singh v. Union of India, 2006 INSC 642, (2006) 8 SCC 1, a petition by a former Director General of Police, the Supreme Court found that the police were exposed to political interference and that the recommendations of the National Police Commission (1977–81) had not been implemented. It issued seven directions, to operate until new Police Acts were passed:

1. A State Security Commission in each State to ensure the Government does not exert unwarranted influence on the police and to lay down broad policy.
2. The Director General of Police to be selected from among the three senior-most officers empanelled by the UPSC, with a minimum tenure of two years.
3. A minimum tenure of two years for operational officers: IG of a zone, DIG of a range, SP of a district and SHO of a police station.
4. Separation of investigation from law and order, beginning in towns of ten lakh population or more.
5. A Police Establishment Board to decide transfers, postings and promotions of officers of and below the rank of Deputy Superintendent.
6. Police Complaints Authorities at State and district level to inquire into serious misconduct, including custodial death, grievous hurt and rape in custody.
7. A National Security Commission at the Union level for the selection of chiefs of central police organisations.

Compliance has been uneven. Many States passed Police Acts that adopt the directions only partly, and the Court has had to keep monitoring them, including later orders on the appointment of acting DGPs.

How this is examined

January 2026: trace the constitutional and other legal provisions imposing restrictions on abuse of police power (10 marks). June 2025: explain the police reforms directed by the Supreme Court referring to decided cases (10 marks). February 2025: a note on police deviance. For the first, take Constitution, BNSS, BSA, BNS and other law in that order, then the guideline cases. For the second, Prakash Singh's seven directions are the core, supported by Joginder Kumar, D.K. Basu, Lalita Kumari, Arnesh Kumar and Paramvir Singh Saini.