Power of Police in USA & India: - A comparative Study

International Research Journal of Management Sociology & Humanities ISSN 2277 – 9809 (online) ISSN 2348 - 9359 (Print) An Internationally Indexed Peer Reviewed & Refereed Journal www.IRJMSH.com www.isarasolutions.com Published by iSaRa Solutions IRJMSH Vol 14 Issue 8 [Year 2023] ISSN 2277 – 9809 (0nline) 2348–9359 (Print) Power of Police in USA & India: - A comparative Study Ms. Kavita Devi (Research Scholar) & Dr. Anand Kumar (Asstt. Professor) Department of Law BPS Women University Khanpr Kalan Sonipat Haryana. E mail- [email protected] Abstract Maintenance of law and order is one of the most important function of the State, moreover State guarantees to its citizens that there Constitutional as well as statutory rights are protected by the State. Under the Doctrine of separation of powers duty to maintain law and order was assigned to the Executive i.e. Police & other law enforcing agencies. Powers of police are well defined under Indian Penal Code 1860, Criminal Procedure Code 1973 and Indian Evidence Act. Earlier they are treated as barbaric colonial laws, but after the Independence these laws are redefined and interpreted in the light of Constitution of India now the powers of the police are treated as their duty to protect civilian rights. In USA powers of police are defined under federal laws and state Laws. In this article we will make a comparative study of USA and Indian Laws analyses the loophole in exercise of police powers. Key Words:- Police Power , Constitutional Right, Right of accused Person, Custodial torture. A. Introduction In a welfare state police was given the duty maintenance of law and order, to enforce law and order some special powers are given to police this includes search seizer, arrest, preventive detentions. These powers are not a blank cheque, but are under the control of well defined law and direction given by the courts from time to time. Above all police person are also human being they exercise excessive powers which result in violation human rights. B. Review of literature David Arnold (2017)1“ As an agency of state coercion and intelligence-gathering, the police were vital to Britain's attempts to hold on to power in India. The political potency of the police was most clearly and forcefully demonstrated by their systematic use against the Indian National Congress during the agitational movements of the 1920s and 1930s”. DH Balay (2015)2 “There are many kinds of police in the world, and many different kinds of functionaries who perform policing roles. By "police" I shall be referring to employees of the community, for the most part uniformed, whose special purpose is to en- sure that the community's 1 Arnold, D. (2017). Police power and the demise of British rule in India, 1930–47. In Policing and decolonisation (pp. 42-61). Manchester University Press. Available at https://www.manchesterhive.com/display/9781526123688/9781526123688.00009.xml/* 2 Bayley, D. H. (2015). Police and political development in India (Vol. 2307). Princeton University Press. Available at https://www.google.co.in/books/edition/Police_and_Political_Development_in_Indi/hkLWCgAAQBAJ?hl=en&gbp v=1&dq=power+of+police+in+india&pg=PP1&printsec=frontcover/* International Research Journal of Management Sociology & Humanity ( IRJMSH ) www.irjmsh.com Page 268 IRJMSH Vol 14 Issue 8 [Year 2023] ISSN 2277 – 9809 (0nline) 2348–9359 (Print) laws are observed and who do so by initiating the process through which sanctions are applied. The police may be distinguished from other agents of the community who enforce law, employ force, or wear uniforms by (a) having an exclusively domestic mandate and (b) being the initial point of contact between citizen and enforcement machinery. British and American policemen are prototypes of this model. So too are Indian policemen”. A Verma (1999)3 “Corruption within the Indian police organization is not a new phenomenon and folklore has always associated police with extortion and brutality. At present, corruption exists in many forms and in every rank and has reached an alarming stage where some practices are not even considered deviant. This paper argues that such pervasive corruption is an expression of the organizational culture that has its roots in the British Raj. The paper, based upon an insider’s viewpoints, describe some unusual forms of corruption and suggest how these emanate from organizational practices that have continued unchanged for more than a 100 years”. Anand Kumar (2022)4 “In the present scenario custodial death during an investigation (i.e. Vikash Dubey in UP & Hyderabad Police encounter) raise new challenges to the fundamental right provided under Article 20 of the Indian Constitution. Article 20(3) of the Indian Constitution provides that “No person accused of any offence shall be compelled to be a witness against himself” . The right to be free from selfdiscriminatory or self-harming statements and the Right to be silent is recognized as fundamental right in the Indian Constitution” A Chaturvedi (2017)5. “Under the Constitution, police is a subject governed by states. Therefore, each of the 29 states have their own police forces. The centre is also allowed to maintain its own police forces to assist the states with ensuring law and order. Therefore, it maintains seven central police forces and some other police organizations for specialized tasks such as intelligence gathering, investigation, research and recordkeeping, and training. The primary role of police forces is to uphold and enforce laws, investigate crimes and ensure security for people in the country. In a large and populous country like India, police forces need to be well-equipped, in terms of personnel, weaponry, forensic, communication and transport support, to perform their role well. Further, they need to have the operational freedom to carry out their responsibilities professionally, and satisfactory working conditions (e.g., regulated working hours and promotion opportunities), while being held accountable for poor performance or misuse of power”. C. Research Objective: To know whether the existing laws in India and USA are effective in maintaining equilibrium between human right and maintenance of law and order. 3 Verma, A. (1999). Cultural roots Tucson, AZ. f police corruption in India. Policing: an international journal of police strategies & management, 22(3), 264-279.Available at https://www.emerald.com/insight/content/doi/10.1108/13639519910285044/full/html/* 4 Recent Kumar Anand & Smt. Kavita (2022) Constitutional Safeguard Against Self Incrimination :Issues And Challenges vol. 8 issue 3. Gradiva review Journal Available at http://gradivareview.com/VOLUME-8-ISSUE-3-2022//* 5 Chaturvedi, A. (2017). Police reforms in India. PRS Legal.Available https://prsindia.org/files/policy/policy_analytical_reports/Police%20Reforms%20in%20India.pdf/* International Research Journal of Management Sociology & Humanity ( IRJMSH ) www.irjmsh.com at Page 269 IRJMSH Vol 14 Issue 8 [Year 2023] ISSN 2277 – 9809 (0nline) 2348–9359 (Print) D. Research Methodology:- Doctrinal research methodology is used to complete the study. E. Limitation of the research:- This research is based on secondary data available. F. Comparative Study of India and USA Laws USA laws Indian Laws “The Fourth Amendment of the U.S. Section 102 in The Code Of Criminal Constitution: This amendment protects Procedure, 19737 individuals against unreasonable searches 102. Power of police officer to seize certain and seizures and requires the police to have property. probable cause before conducting a search (1) Any police officer, may seize any property which may be alleged or suspected to have or makingan arrest”6. been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. (2) Such police officer, if subordinate to the officer in charge of a police station, shall forthwith report the seizure to that officer. (3) Every police officer acting under subsection (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same. “Title 18 of the U.S. Code 1948 : This is the “The Indian Police also have the power to federal criminal code and contains arrest an accused person under certain provisions that outline the powers and duties conditions outlined in Section 41 of the of the police, including the authority to Cr.P.C”10. “An arrest can be made without a make arrests and enforce federal laws”8. warrant if the police have reasonable This code also governs the process for grounds to believe that the person has making arrests, conducting searches and committed a cognizable offence. In cases 6 Available at https://www.law.cornell.edu/wex/fourth_amendment/* Available at https://indiankanoon.org/doc/648213/* 8 Available at https://www.ojp.gov/ncjrs/virtual-library/abstracts/federal-criminal-law-handbook-federalrules-criminal-procedure/* 10 Available at https://indiankanoon.org/doc/1899251/* 7 International Research Journal of Management Sociology & Humanity ( IRJMSH ) www.irjmsh.com Page 270 IRJMSH Vol 14 Issue 8 [Year 2023] ISSN 2277 – 9809 seizures, and procedures9. other criminal justice The Police Powers and Responsibilities Act 200014: This act outlines the powers and duties of police officers at the state level, including the authority to make arrests, detain individuals, and use reasonable force to maintain order and protect the public. (0nline) 2348–9359 (Print) where the police do not have the authority to make an arrest without a warrant, they may obtain one from a judicial magistrate under Section 44 of the Cr.P.C”11. In addition to these powers, the Cr.P.C. also provides for various checks and balances to ensure that the powers of the police are not misused. For example, Section 50 of the Cr.P.C12. requires the police to inform the arrested person of the grounds for his/her arrest, and Section 56 requires the police to produce the arrested person before a magistrate within 24 hours of the arrest13. The Indian Police are entrusted with the responsibility of maintaining law and order and investigating criminal cases. The powers and responsibilities of the Indian Police are governed by the Code of Criminal Procedure, 1973 (Cr.P.C.). The Civil Rights Act of 196415: This act prohibits discrimination based on race, colour, religion, sex, or national origin, and grants the police the authority to enforce these provisions. The Americans with Disabilities Act 199016: This law prohibits discrimination against individuals with disabilities, and the police have a role in enforcing this law as well. G. Comparative Study of Role of Judiciary in India and USA. 9 Available at https://www.govinfo.gov/content/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18.pdf/* Available at https://indiankanoon.org/doc/120844/* 12 Available at https://indiankanoon.org/doc/1848903/* 13 Available at https://indiankanoon.org/doc/1670784/* 14 Available at Police Powers and Responsibilities Act 2000 - An invitation for your comment (cabinet.qld.gov.au)/* 15 Available at Legal Highlight: The Civil Rights Act of 1964 | U.S. Department of Labor (dol.gov)/* 16 Available at https://www.ada.gov/* 11 International Research Journal of Management Sociology & Humanity ( IRJMSH ) www.irjmsh.com Page 271 IRJMSH Vol 14 Issue 8 [Year 2023] ISSN 2277 – 9809 (0nline) 2348–9359 (Print) Under The Doctrine of separation of powers, power of judicial review and interpretation of laws were given to judiciary. Now the judiciary under umbrella of judicial activism can suo motto examine any case where the police powers are misused. Some the landmark judgments which give new direction to powers of police are discussed below, H. Landmark Judgment of USA Courts ▪ Mapp v. Ohio17 –“The case originated in Cleveland, Ohio, when police officers forced their way into Dollree Mapp's house without a proper search warrant. Mapp was arrested for possessing the pictures, and was convicted in an Ohio court. At the time of the case unlawfully seized evidence was banned from federal courts but not state courts. The U.S. Supreme Court ruled in a 5-3 vote in favor of Mapp that evidence obtained in violation of a person's Fourth Amendment rights ▪ (protecting against unreasonable searches and seizures) cannot be used in a criminal trial”. Terry v. Ohio18 - “This Case was a landmark U.S. Supreme Court decision in which the Court ruled that it is constitutional for American police to "stop and frisk" a person they reasonably suspect to be armed and involved in a crime. Specifically, the decision held that a police officer does not violate the Fourth Amendment to the U.S. Constitution's prohibition on unreasonable searches and seizures when questioning someone even though the officer lacks probable cause to arrest the person, so long as the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime”. ▪ ▪ Miranda v. Arizona19 - This case dealt with the issue of self-incrimination and established the "Miranda warning" which requires police officers to inform a suspect of their right to remain silent and their right to an attorney before questioning them in custody. New Jersey v. T.L.O.20 – “In a New Jersey high school, a teacher found two girls smoking in the bathroom and took them to the principal's office. One girl admitted to smoking but the other, known as T.L.O., denied it. The principal demanded to see the girl's purse and found evidence that she was also selling marijuana at school. T.L.O. was taken to the police station where she admitted to selling marijuana. The court sided with the school, and T.L.O. took her case to the New Jersey Supreme Court, which later found that the search was unreasonable and the evidence could not be used. In 1985, the Supreme Court, by a 6-3 margin, ruled that New Jersey and the school had met a "reasonableness" standard for conducting such searches at school. The high court said school administrators don't need to have a search warrant or probable cause before conducting a search because students have a reduced expectation of privacy when in school”. 17 367 U.S. 643 (1961) Available at https://www.uscourts.gov/about-federal-courts/educationalresources/supreme-court-landmarks/mapp-v-ohio-podcast/* 18 392 U.S. 1 (1968) Available at https://supreme.justia.com/cases/federal/us/392/1/* 384 U.S. 436 (1966) Available at https://www.uscourts.gov/educational-resources/educationalactivities/facts-and-case-summary-miranda-v-arizona/* 20 469 U.S. 325 (1985) Available at https://www.uscourts.gov/about-federal-courts/educationalresources/supreme-court-landmarks/new-jersey-v-tlopodcast#:~:text=In%20a%20juvenile%20court%2C%20T.L.O.,evidence%20could%20not%20be%20used./* 19 International Research Journal of Management Sociology & Humanity ( IRJMSH ) www.irjmsh.com Page 272 IRJMSH ▪ Vol 14 Issue 8 [Year 2023] ISSN 2277 – 9809 (0nline) 2348–9359 (Print) Illinois v. Caballes21 - “Justice John Paul Stevens delivered the Court's 7-2 opinion that Caballes' Fourth Amendment rights were not violated. The Constitution did not require police to have reasonable suspicion to use a drug-detection dog on a car during a legal traffic stop. No legitimate privacy was at risk, the Court argued, because the dog only alerted to an illegal drug”. I. Landmark Judgment of Indian Courts. State of Haryana v. Bhajan Lal22This case is related to the power of the police to arrest and detain a person during the investigation of a case in India. The Supreme Court of India has indeed held that the police must have reasonable grounds to arrest a person and that the arrest must be made in accordance with the provisions of the Code of Criminal Procedure (Cr.P.C.), which is the main statute governing criminal procedure in India. The court has also held that the police must take the accused person before a magistrate within 24 hours of the arrest. This is a safeguard against arbitrary detention and ensures that the accused person is produced before a judicial authority as soon as possible. The Supreme Court has further held that if the police fail to comply with these requirements, the accused person is entitled to be released on bail. In addition, the court has emphasized the importance of the right to personal liberty and the need to balance it with the interest of society in the investigation and prevention of crime. Overall, the case highlights the importance of following due process of law and respecting the rights of the accused in criminal proceedings. Nandini Satpathy v. PL Dani23The court has also held that the judiciary has the power to supervise the investigation to ensure that it is conducted fairly and in accordance with the law. In addition, the court has emphasized the importance of preserving the rights of the accused and ensuring that they are given a fair trial. Overall, the case highlights the importance of maintaining the rule of law and ensuring that investigations are conducted in a fair and transparent manner. It also emphasizes the role of the judiciary in supervising the investigation to ensure that the rights of the accused are protected and justice is served. In the landmark case of D.K. Basu v. State of West Bengal (1997) which indeed dealt with the issue of police powers to arrest and detain a person during the investigation of a case in India. In this case, the Supreme Court held that the police must have valid reasons to make an arrest and that the arrest must be carried out in accordance with the procedures laid down in the Code of Criminal Procedure. The court also emphasized that the police must inform the person being arrested of the grounds for the arrest, and that the arrested person has a right to legal counsel and to be informed of their rights. 21 22 23 543 U.S. 405 (2005 Availale at https://www.oyez.org/cases/2004/03-923/* (1992) Supp. (1) SCC 335 (1978) 2 SCC 424 International Research Journal of Management Sociology & Humanity ( IRJMSH ) www.irjmsh.com Page 273 IRJMSH Vol 14 Issue 8 [Year 2023] ISSN 2277 – 9809 (0nline) 2348–9359 (Print) Furthermore, the court held that the police must produce the arrested person before a magistrate within 24 hours of the arrest, and that if the person is detained beyond that period, it is considered illegal detention. Overall, the case is significant because it provides a legal framework for protecting the rights of individuals during arrest and detention. It emphasizes the importance of due process of law and the need to balance the interests of the state with the protection of individual rights. Conclusion The powers of the police in India and the USA are different, and their use is subject to different legal frameworks. While the police in India have broader powers to maintain law and order, prevent and detect crimes, and investigate offenses, their actions are subject to judicial review and the requirement of due process. On the other hand, the powers of the police in the USA are more limited, and their actions are strictly regulated by the Fourth Amendment and other federal and state laws. While the Fourth Amendment provides a higher level of protection to individuals against unreasonable searches and seizures, the police have limited powers to detain or arrest a person without probable cause. Both countries could benefit from improving their laws relating to police powers by strengthening the oversight mechanisms and ensuring police accountability. In India, this could involve increasing the independence of the judiciary and implementing stronger safeguards against police abuse. In the USA, this could involve increasing transparency and accountability, improving the training and resources available to officers, and implementing measures to reduce excessive use of force and enhance de-escalation techniques. Ultimately, improving police accountability is critical to upholding the rule of law and protecting the rights of individuals in both countries. Suggestions In the end we can conclude with the following suggestion :1. It is important for police officers to be well-trained, accountable, and respectful of the law and the citizens they serve. Only then can they effectively carry out their duties and maintain public trust. 2. In addition, there should be effective oversight mechanisms to ensure that the police are held accountable for any abuses of power or misconduct. This can include independent civilian review boards, internal affairs investigations, and effective complaint and disciplinary procedures. Ultimately, a balance must be struck between the powers of the police and the rights of citizens to ensure a just and fair society. 3. Additionally, India has also created independent oversight authorities such as the National Human Rights Commission (NHRC) and State Human Rights Commissions (SHRCs) to monitor the functioning of the police and investigate cases of police abuse. These bodies can also issue recommendations to the government on improving police practices and International Research Journal of Management Sociology & Humanity ( IRJMSH ) www.irjmsh.com Page 274 IRJMSH Vol 14 Issue 8 [Year 2023] ISSN 2277 – 9809 (0nline) 2348–9359 (Print) policies. However, these oversight mechanisms have been criticized for their limited powers and inadequate resources, which hamper their effectiveness in holding police accountable. 4. In the USA, the police are generally accountable to the local government, with the mayor or city council having authority over the police department. However, some cities have also established civilian oversight boards, which are independent bodies composed of community members tasked with overseeing the police department's activities. These boards can investigate cases of police misconduct and make recommendations to the local government for improving police practices. The effectiveness of civilian oversight boards varies widely depending on their powers and resources. 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