Police Accountability in India: Protecting Protesters’ Fundamental Rights

Introduction: The Right to Protest Must Mean More Than the Right to Assemble

A democracy is tested not only by how it treats those who support the government but also by how it treats those who challenge it.

Across India, citizens take to the streets to demand justice, oppose public policies, protest against corruption, seek better working conditions and draw attention to grievances that they believe have gone unheard. Some demonstrations are peaceful and orderly. Others create difficult situations for the authorities, particularly when violence, property damage or serious threats to public safety arise.

The police have a legitimate and essential responsibility to maintain public order. They must protect life and property, prevent violence and ensure that one person’s exercise of liberty does not unlawfully deprive another of theirs.

But this responsibility comes with a corresponding obligation: police power must be exercised within the law.

When force is used against peaceful demonstrators without adequate justification, when an injured protester is denied timely medical assistance, when a journalist is assaulted while documenting police action, or when a serious complaint is investigated by an institution that lacks sufficient independence, the consequences extend beyond the individuals directly affected. Such incidents can undermine public confidence in law enforcement and weaken the credibility of constitutional institutions.

India is not without legal remedies for police misconduct. The Constitution, criminal laws, departmental mechanisms, human rights institutions and judicial decisions provide important safeguards. The difficulty is that these safeguards do not yet constitute a single, comprehensive and consistently effective framework specifically designed to prevent, investigate and remedy serious police misconduct during public assemblies.

This is the legislative gap that deserves serious attention.

India should consider enacting a dedicated Police Accountability and Public Assembly Protection Act. Its purpose would not be to weaken the police or make lawful crowd management impossible. It would be to establish clear standards, ensure independent investigation of serious incidents, protect evidence, provide effective remedies and hold both individuals and institutions accountable when unlawful conduct is established.

The central argument is simple: the authority to maintain public order and the duty to respect constitutional rights must operate together.

Also Read: Right to Protest in India: Can Delhi Police Stop a March to Parliament? Supreme Court Rules, Constitutional Law & Legal Analysis

1. The Constitutional Foundation of Peaceful Protest in India

The Indian Constitution protects peaceful assembly through a combination of fundamental rights.

Article 19(1)(a) guarantees freedom of speech and expression, while Article 19(1)(b) guarantees the right to assemble peaceably and without arms. Article 21 protects life and personal liberty, and Article 14 guarantees equality before the law and equal protection of the laws.

Articles 32 and 226 provide mechanisms for seeking constitutional remedies before the Supreme Court and High Courts.

Together, these provisions recognise that citizens must be able to express disagreement, organise collectively and communicate their grievances to the State.

Reasonable Restrictions on the Right to Protest

The right to protest, however, is not absolute. Article 19 permits constitutionally specified restrictions, including restrictions in the interests of public order. Authorities may regulate the location, timing and manner of assemblies in accordance with the law. They may also intervene when circumstances justify lawful action to prevent violence or protect the public.

The constitutional question is not whether the State can regulate demonstrations. It can.

The question is whether the restriction or use of force is lawful, necessary and proportionate to the circumstances.

A peaceful gathering cannot be treated as unlawful merely because its message is inconvenient to the government. Equally, the right to assemble does not provide immunity for assault, destruction of property or other criminal conduct.

The law must distinguish between peaceful dissent and unlawful behaviour. It must also distinguish between legitimate police intervention and an excessive response.

That distinction is fundamental to a constitutional democracy.

Key Constitutional Protections for Peaceful Assemblies

2. What the Supreme Court Has Already Established on Police Accountability

India’s higher judiciary has repeatedly addressed the relationship between public order, personal liberty and the limits of police authority.

Three judgements are particularly relevant to the proposed reform.

A. In Re: Ramlila Maidan Incident

In In Re: Ramlila Maidan Incident (2012) 5 SCC 1, the Supreme Court examined the events surrounding the police dispersal of a gathering at Delhi’s Ramlila Maidan during the night of 4–5 June 2011.

The judgement considered the constitutional rights of people assembled at the site and the legality of the action taken by the authorities. The Court scrutinised the manner in which the gathering was dispersed and addressed the consequences of the police action.

The case is significant because it demonstrates that the existence of police powers does not place their exercise beyond judicial review. Authorities must act within the law and remain answerable for unlawful interference with fundamental rights.

The judgement does not establish that every dispersal of an assembly is unlawful. It demonstrates why the circumstances, legal authority, manner of execution and impact on constitutional rights must be examined carefully.

B. Anita Thakur v. Government of Jammu and Kashmir

In Anita Thakur v. Government of Jammu and Kashmir (2016) 15 SCC 525, the Supreme Court considered police excesses during a protest.

The factual background requires careful treatment: the judgement recorded stone-pelting by protesters. Nevertheless, the Court found that the police had continued using force after the protesters had been overpowered and no longer posed the same threat.

The case illustrates a principle that should guide any modern protest-policing law. Even where some participants engage in violence, the police do not acquire unlimited authority to use force against everyone present.

The justification for force must be assessed in relation to the actual threat, the conduct of the individual concerned and the circumstances at the relevant time.

A lawful response to violence cannot become punishment inflicted indiscriminately on a crowd.

C. Prakash Singh v. Union of India

In Prakash Singh v. Union of India, (2006) 8 SCC 1, the Supreme Court issued directions aimed at structural police reform. These included measures concerning security of tenure, police administration and the establishment of Police Complaints Authorities at state and district levels.

The judgement recognised the importance of independent mechanisms for examining serious complaints against police personnel.

However, it would be incorrect to treat the judgement as though it had already created a uniform, fully functioning statutory system for independently investigating every serious incident of police misconduct at a public assembly.

The distinction matters. Judicial directions established an important foundation for reform, but the practical operation of oversight mechanisms remains a separate question.

Key Lessons from Supreme Court Judgements

The three judgements collectively support a clear proposition: police authority is constitutionally limited, serious excesses are legally reviewable, and institutional accountability is essential to making those limits meaningful.

3. India’s Existing Legal Framework: Protection on Paper and Protection in Practice

A credible reform proposal must begin by acknowledging what Indian law already provides.

Criminal Law

The Bharatiya Nyaya Sanhita, 2023, contains offences that may apply to unlawful conduct such as causing hurt, wrongful restraint, wrongful confinement and other criminal acts, depending on the facts.

The Bharatiya Nagarik Suraksha Sanhita, 2023, provides the procedural framework for criminal investigations and proceedings, subject to its provisions and other applicable laws.

These statutes are important. But the existence of criminal offences and investigation procedures does not, by itself, create an independent oversight authority dedicated to investigating serious police misconduct during public assemblies.

Nor does criminal law alone establish a complete system of preventive standards, evidence-preservation duties, systemic review and public reporting.

The proposed legislation should complement the existing criminal justice framework rather than duplicate or displace it.

Constitutional Remedies and Compensation

A person whose fundamental rights have been violated may, where the legal requirements are satisfied, approach the constitutional courts.

In appropriate cases, the Supreme Court and High Courts may award public-law compensation for violations of fundamental rights. Such relief is distinct from a criminal conviction and does not automatically determine criminal guilt.

The Supreme Court’s decisions in Nilabati Behera v. State of Orissa, (1993) 2 SCC 746, and D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, are important authorities in the broader development of protections against unlawful state action and custodial abuse.

These decisions should not be overstated as establishing an automatic compensation entitlement for every allegation of excessive force at a protest. Their relevance lies in the recognition that constitutional rights must have effective remedies.

Human Rights Institutions

The Protection of Human Rights Act, 1993, provides for the National Human Rights Commission and State Human Rights Commissions.

These institutions can play an important role in examining alleged human rights violations, making recommendations and promoting compliance with human rights standards within their statutory mandates.

However, their existence does not eliminate the need to examine jurisdictional limits, available resources, investigative arrangements and the practical effect of their recommendations.

Departmental Proceedings

Police departments also have internal disciplinary procedures. These may be appropriate for certain forms of misconduct and are necessary for professional standards.

The difficulty arises when the seriousness of an allegation calls for scrutiny independent of the police organisation concerned.

Internal proceedings and independent investigations serve different purposes. A well-designed legal system should allow them to operate together, with appropriate coordination and safeguards against prejudicing criminal proceedings.

The Need for a Coherent Police Accountability Framework

The problem, therefore, is not the complete absence of law. It is the lack of a sufficiently coherent system that combines prevention, independent investigation, evidence preservation, transparent reporting and effective remedies.

Summary of India’s Existing Legal Framework

4. The Implementation Gap: What the Evidence Shows

The case for reform becomes stronger when it is supported by evidence rather than general assertions.

In December 2023, the Commonwealth Human Rights Initiative published an assessment of Police Complaints Authorities in India. Its findings raised substantial concerns about the functioning of these oversight mechanisms.

According to CHRI’s published summary:

• State Police Complaints Authorities were reported as functional in only 14 states and Union Territories.
• Eleven states and Union Territories were reported as not having State Police Complaints Authorities.
• Of the 14 described as functional, CHRI identified 11 as operational, while three had been constituted relatively recently, in 2022–2023.
• In four states, police oversight functions associated with State Police Complaints Authorities had been assigned to other authorities or officials.
• CHRI also reported that seven states or Union Territories had not responded to its information-gathering exercise, and their authorities’ existence or functioning could not be evidenced through websites.

These are CHRI’s findings from its 2023 assessment. They should not be presented as a verified account of the position in every state today. A publication making claims about the present position should obtain updated information from official state sources and subsequent assessments.

Even with that qualification, the findings identify a serious institutional concern: the existence of a judicially directed oversight mechanism does not guarantee its establishment, accessibility or effective operation everywhere.

The Practical Questions

The practical questions are straightforward.

• Can an injured protester identify an independent authority to which a serious complaint can be submitted?
• Does that authority have the resources and powers necessary to obtain relevant evidence?
• Can it act without undue interference?
• Are its findings followed by reasoned decisions?
• Can the public assess its performance?

Where the answers are unclear, the law needs stronger institutional arrangements.

This is not merely an argument about administrative efficiency. It concerns the practical ability of citizens to obtain accountability when public power is allegedly misused.

5. What International Experience Can Teach India

Several jurisdictions have created external oversight mechanisms or legal procedures for addressing police misconduct. Their systems differ substantially, and none should be treated as a perfect model.

The useful question is not which country India should copy. It is which institutional principles can be adapted to India’s constitutional structure.

United States: Addressing Patterns of Unlawful Policing

Under 34 U.S.C. § 12601, the United States Attorney General may pursue civil action to obtain appropriate equitable and declaratory relief to eliminate a pattern or practice of unlawful conduct by law-enforcement agencies that deprives people of protected rights.

The provision is especially relevant to systemic misconduct. It recognises that repeated unlawful force, discriminatory enforcement or defective institutional practices may require remedies extending beyond an individual incident.

India could consider a similar principle: where credible evidence points to repeated serious violations, an investigation should examine not only the conduct of individual officers but also training, command decisions, supervision and institutional practices.

The American provision is not, however, a general individual compensation mechanism. It authorises federal civil enforcement against patterns or practices. Other legal provisions govern individual civil-rights claims, which face their own procedural and substantive limitations.

Lesson for India: A police-accountability framework should be capable of identifying and correcting systemic failures, not merely processing individual complaints.

United Kingdom: Independent Police-Conduct Oversight

In England and Wales, the Independent Office for Police Conduct operates under the Police Reform Act 2002, as amended.

The IOPC provides an external oversight structure for police complaints and serious incidents. Its role should not be confused with arrangements elsewhere in the United Kingdom, where different institutions operate.

Its statutory framework illustrates the value of clearly defining an external body’s responsibilities, membership, investigative role and relationship with police forces.

India could adopt the principle that specified serious incidents must be referred for independent scrutiny rather than being left entirely to internal police processes.

Lesson for India: The law should define mandatory referral thresholds, investigation procedures and reporting obligations, rather than relying on general promises of accountability.

South Africa: Independent Police Investigative Directorate

South Africa’s Independent Police Investigative Directorate was established under the Independent Police Investigative Directorate Act 2011.

In July 2024, the South African government announced that the President had assented to legislation intended to affirm IPID’s institutional and operational independence and empower it to investigate serious alleged offences committed by police officers, whether on or off duty.

This development is particularly relevant because it addresses the independence of the investigative institution itself.

India could consider an authority with a clearly defined statutory mandate, secure funding arrangements, appropriate appointment safeguards and sufficient powers to obtain evidence.

Lesson for India: Independence must be built into the institution’s legal structure and working arrangements. It cannot depend solely on the goodwill of the authorities being investigated.

New Zealand and Other Jurisdictions

New Zealand’s Independent Police Conduct Authority provides another example of external scrutiny of police conduct.

Canada and Australia also have oversight mechanisms, although their arrangements vary by province, territory and state. They should not be described as having one uniform national model.

A detailed comparative study should examine not just the name of each institution but its legal powers, independence, investigative procedures, access to evidence, reporting duties and relationship with prosecutors and courts.

Comparative Overview

Key Principles for India’s Police-Accountability Framework

The comparison points towards a set of common principles:

• Independent scrutiny of serious incidents.
• Reliable evidence.
• Clear procedures.
• Reasoned outcomes.
• The ability to identify institutional failures.

India should adapt those principles rather than transplant foreign legislation without regard to federalism, constitutional rights and existing institutions.

6. International Human Rights Standards

International standards provide a useful framework for designing domestic legislation.

Article 21 of the International Covenant on Civil and Political Rights recognises the right of peaceful assembly. India is a party to the Covenant and must consider its obligations under international law, while the domestic legal effect of particular treaty provisions depends on the applicable constitutional and statutory framework.

General Comment No. 37: The Right to Peaceful Assembly

In General Comment No. 37, adopted in 2020, the UN Human Rights Committee explained that peaceful assembly is central to democratic participation and the collective expression of views.

The Committee also addressed the obligations of authorities to facilitate peaceful assemblies and the requirements governing restrictions on them.

International Principles on the Use of Force and Firearms

The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted in 1990, provide additional guidance. They state that law-enforcement officials should, as far as possible, use non-violent means before resorting to force. Where force is unavoidable, they should exercise restraint, act proportionately to the legitimate objective, minimise injury and ensure that medical assistance is provided promptly.

The Principles also prescribe particularly stringent safeguards for firearm use. They state that firearms should not be used against persons except in specified circumstances involving serious threats, and that intentional lethal use may be made only when strictly unavoidable to protect life.

Domestic Legal Effect of International Human Rights Standards

These international instruments must be described accurately. They are not all domestic statutes, and their legal status differs from that of an Act of Parliament. Nevertheless, they provide authoritative standards for developing rules that protect both public safety and fundamental rights.

The proposed Indian law should translate appropriate standards into clear legal duties that officers, commanders and members of the public can understand.

7. The Proposed Police Accountability and Public Assembly Protection Act

A new law should address the full cycle of protest policing: preparation, management of the assembly, use of force, investigation of serious incidents and remedies after a violation.

It should not simply create another authority and leave its powers unclear. Its provisions must be specific enough to guide police conduct and enable meaningful review.

A. Independent Investigation of Serious Incidents

The Act should identify incidents that trigger mandatory referral to an independent investigative authority.

These should include, at a minimum:

• Death or serious injury allegedly caused by police action during a public assembly.
• Credible allegations of torture or serious custodial abuse connected with the policing of an assembly.
• Alleged unlawful firearm use or other potentially lethal force.
• Credible allegations of widespread or repeated excessive force.
• Serious allegations of evidence destruction, witness intimidation or deliberate obstruction of an investigation.

The statutory threshold should be clear. Referral should not depend entirely on the discretion of the police unit whose conduct is under scrutiny.

The law should also explain how the independent investigation interacts with criminal investigations, prosecution decisions, departmental proceedings and judicial review.

The independent authority should not replace the criminal courts. Its role should be to investigate, establish relevant facts within its mandate, identify institutional shortcomings and refer matters to the competent authorities where necessary.

B. An Independent Oversight Authority

The proposed law should establish a statutory oversight body with safeguards for independence.

Its appointments should follow a transparent procedure. Removal should be permitted only on specified grounds and through fair procedures. Funding should be adequate to enable independent investigations, forensic examination, regional coverage and secure evidence management.

The authority should have clearly defined powers to obtain relevant documents, request recordings, interview witnesses and examine operational records, subject to appropriate legal protections.

It should also be required to publish regular reports on complaints received, investigation timelines, findings, referrals and follow-up action.

The law must specify the legal effect of its findings. Where the authority makes a recommendation, the responsible institution should be required to provide a reasoned response within a prescribed period. If the authority is to issue binding remedial directions in defined circumstances, that power must be expressly granted by statute and accompanied by procedural safeguards and judicial review.

Independence without resources is ineffective. Investigative powers without accountability are equally problematic.

C. Clear and Enforceable Standards for the Use of Force

The law should establish a framework governing police use of force during public assemblies.

Force must have a lawful basis and must be necessary and proportionate to the legitimate objective being pursued. Officers should consider de-escalation and reasonably available, less harmful alternatives where circumstances permit.

Where dispersal is legally authorised, the police should ordinarily communicate the order clearly and provide a reasonable opportunity to comply. The law should recognise exceptions where an immediate threat makes advance warning impracticable or unsafe.

The use of force must not become a means of punishment or retaliation.

The law should provide specific safeguards for batons, chemical irritants, projectiles and firearms, recognising that different methods create different risks. Firearm use should be governed by strict statutory rules consistent with the applicable law and relevant international standards.

The framework should also require appropriate medical assistance for injured persons and prompt reporting of serious incidents.

Clear rules protect citizens from unlawful force and officers from uncertainty about the limits of their authority.

D. Mandatory Preservation of Evidence

Investigations cannot be independent in any meaningful sense if relevant evidence is unavailable, destroyed or withheld without adequate explanation.

The Act should require the preservation of available evidence relating to serious incidents, including:

• CCTV and body-camera footage;
• recordings from police vehicles;
• wireless and control-room communications;
• deployment orders and operational instructions;
• incident reports and relevant station records;
• medical records and forensic material; and
• available recordings from other lawful sources.

The legislation should prescribe secure storage, audit trails, retention periods and procedures for access and disclosure.

Where required equipment was not activated or relevant recordings were lost, the circumstances should be documented and examined. The law should not automatically presume guilt merely because a recording is missing. Instead, it should permit a fair inquiry into whether the failure was accidental, negligent, deliberate or otherwise justified.

Where evidence is under the control of the police, preservation duties should be enforceable and non-compliance should have clearly defined consequences.

E. Accessible Complaints and Protection Against Retaliation

A person who has been injured or unlawfully treated should not face unnecessary procedural obstacles before being able to complain.

The authority should accept complaints through accessible channels, including appropriate electronic methods. Procedures should accommodate people with disabilities, language barriers and other practical difficulties.

Complainants and witnesses should be protected against retaliation for making a complaint in good faith or participating in a lawful investigation.

At the same time, safeguards should exist against knowingly false allegations and deliberate abuse of the process. Those safeguards must be proportionate and must not become a tool for intimidating genuine complainants.

The authority should acknowledge complaints, communicate the applicable procedure and provide updates within prescribed time limits, subject to legitimate restrictions required to protect witnesses or the integrity of an investigation.

F. Effective Remedies and Compensation

Where unlawful police action and resulting harm are established, the legal system should provide appropriate remedies.

Depending on the circumstances and the powers of the relevant institution, these may include compensation, medical or rehabilitative support, correction of official records, disciplinary action, criminal referral and measures to prevent recurrence.

The legislation should clarify that a public-law compensation claim, where legally available, is distinct from criminal liability. It should not require a criminal conviction as a universal precondition where the applicable law recognises a separate constitutional or statutory remedy.

However, compensation must follow fair procedures and a sufficient evidentiary basis. An allegation alone should not automatically establish liability.

The objective is to remedy proven violations while preserving the distinction between administrative findings, public-law responsibility and criminal guilt.

G. Accountability of Commanders and Institutions

Serious misconduct is not always the result of one officer’s isolated decision.

Operational instructions, inadequate training, defective crowd-management plans, poor supervision or a failure to respond to known risks may contribute to unlawful outcomes.

The proposed law should permit examination of the conduct of commanding officers and other responsible officials where the evidence indicates that they ordered, authorised, knowingly tolerated or negligently failed to address unlawful conduct, applying the appropriate legal standard.

Where repeated incidents reveal systemic problems, the authority should be able to recommend corrective action involving training, deployment procedures, supervision, equipment or internal reporting.

The responsible institution should be required to respond with reasons and report on implementation. Any binding remedial power should be carefully defined and subject to judicial review.

Accountability should identify not only who carried out an unlawful act, but also whether institutional decisions made it possible or likely.

H. Fair Treatment of Police Officers

A credible accountability system must protect officers from arbitrary or politically motivated allegations.

An allegation is not proof. Officers should receive fair procedures, an appropriate opportunity to respond and the protections available under criminal law and service rules.

Investigations should be impartial, and findings should be based on evidence. Criminal guilt must be determined through the proper criminal process. Disciplinary consequences must follow the applicable procedural safeguards.

The proposed Act should not interfere with legitimate operational decisions merely because they are unpopular. It should scrutinise whether those decisions were lawful and whether force was justified in the circumstances.

A fair system benefits both sides: it offers victims a credible route to accountability and gives officers a way to demonstrate that their actions were lawful.

8. The Constitutional Question: How Can Parliament Legislate?

Any serious proposal must address the division of legislative powers under the Constitution.

Entries 1 and 2 of the State List in the Seventh Schedule concern public order and police. These subjects fall primarily within the legislative competence of the states.

It would therefore be legally unsound to assume that Parliament can regulate every aspect of state police administration simply because the proposed legislation concerns fundamental rights.

The proposal must be designed around the Constitution, not in disregard of it.

Route One: Legislation Under Article 252

Article 252 provides a mechanism through which two or more state legislatures may pass resolutions requesting Parliament to legislate on a State List matter.

Parliament may then enact a law for the participating states. Other states may adopt the law through the process prescribed by Article 252.

This offers a possible route for creating common statutory standards concerning serious police misconduct and public assemblies, provided the proposed provisions fall within the relevant State List subject matter and the constitutional requirements are satisfied.

Participating states could begin by agreeing on core principles, including:

• Independent investigations.
• Evidence preservation.
• Minimum use-of-force standards.
• Public reporting.

Route Two: Harmonised State Legislation

States could also enact their own legislation based on a carefully prepared model Act.

This approach would allow each state to address local institutional arrangements while preserving common minimum safeguards.

A model law should avoid merely repeating general declarations about human rights. It should contain operational provisions, mandatory referral thresholds, investigative powers, reporting duties and enforceable deadlines.

Route Three: Legislation Within Parliament’s Independent Competence

Parliament may legislate on matters that fall within its own constitutional powers. The precise scope of such legislation would depend on its subject matter and legal design.

Article 253, which concerns implementation of treaties and international agreements, may be relevant to particular measures. However, it should not be treated as an unrestricted power to legislate on every matter otherwise assigned to the states.

The constitutional basis for each provision should be examined before the Bill is introduced.

The most defensible proposal is therefore a coordinated legislative programme: a model law for states, Article 252 legislation for participating states where appropriate, and central legislation limited to matters within Parliament’s independent competence.

This approach would strengthen national standards without pretending that India’s federal structure does not exist.

9. Addressing the Principal Objections

Are Existing Laws Not Sufficient?

Existing laws are essential and must continue to operate. The proposal is not based on the claim that India has no remedies for police misconduct.

The concern is that criminal law, departmental procedures, human rights institutions and constitutional litigation do not necessarily provide a coordinated system of independent investigation, mandatory evidence preservation and institutional review for serious incidents at public assemblies.

The proposed Act would fill that institutional gap rather than abolish existing remedies.

Would a New Authority Demoralise the Police?

A poorly designed authority could create unnecessary duplication or uncertainty. That is an argument for careful drafting, not for abandoning accountability.

The new body should focus on specified serious incidents and systemic failures. It should not take over routine police operations or replace the chain of command.

Clear rules can strengthen professional policing by making the boundaries of lawful conduct more predictable.

What About Violent Protesters?

Violence by protesters must be addressed under the law. Police officers have the right to protection while performing lawful duties, and the State has a responsibility to protect members of the public.

But violence by some individuals does not automatically justify indiscriminate force against an entire gathering. The response must be assessed against the actual threat and the applicable legal standards.

The proposed law should protect peaceful assembly while preserving lawful powers to address violence.

Would the Reform Be Too Expensive?

Independent investigations, forensic resources, secure recording systems and trained personnel require funding.

But the cost of ineffective accountability should also be considered. Serious incidents may result in litigation, compensation claims, prolonged disputes, damaged public confidence and avoidable harm.

The financial assessment should compare the cost of an effective oversight system with the legal, institutional and social consequences of leaving serious complaints inadequately addressed.

Could Complaints Become Politically Motivated?

Yes, the possibility of false or politically motivated complaints must be taken seriously.

The solution is to require independent, evidence-based investigations and fair procedures for both complainants and officers. Complaints should neither be accepted as automatically true nor dismissed because they concern politically sensitive events.

The credibility of the system depends on its ability to distinguish substantiated allegations from unsupported ones.

10. A Practical Roadmap: From Proposal to Legislation

The reform should follow a defined sequence rather than remaining a general call for accountability.

Phase One: Evidence and Consultation — First Six Months

The Union Ministry of Home Affairs, in consultation with state governments and appropriate independent institutions, should commission a comprehensive review of the existing framework.

The review should examine:

• The legal status and actual functioning of state and district Police Complaints Authorities;
• Vacancies, staffing, funding and investigative powers;
• Procedures for handling serious complaints arising from protests;
• Existing police use-of-force rules and operational manuals;
• Evidence-preservation practices;
• The time taken to complete investigations and implement recommendations; and
• The relationship between police complaints mechanisms, human rights commissions and criminal investigations.

The review should draw on official state records, legislative materials, judicial decisions and credible civil society research, including CHRI’s work.

Its findings should be published so that the reform is based on evidence rather than assumptions.

Phase Two: Drafting a Model Act — Months Six to Nine

A drafting committee should prepare a model Police Accountability and Public Assembly Protection Act.

The committee should include constitutional and criminal-law experts, former judges, police representatives, human rights specialists, forensic experts and representatives of civil society.

The draft should specify the authority’s independence, jurisdiction, mandatory investigation triggers, evidence-preservation duties, use-of-force standards, complaint procedures, remedies and reporting requirements.

It should also explain how the proposed institution would interact with existing authorities to prevent duplication.

Phase Three: Constitutional and Legislative Review — Months Nine to Twelve

The draft should undergo a detailed constitutional review.

This should identify which provisions may be enacted by states, which could form part of an Article 252 law and which, if any, fall within Parliament’s independent legislative competence.

The process should also identify amendments required to existing laws and rules.

Phase Four: State Participation and Enactment — Following the Review

States willing to proceed could consider resolutions under Article 252 where constitutionally appropriate. Other states could enact harmonised legislation based on the model law.

The Union government should publish a legislative roadmap identifying the provisions, responsible institutions and proposed timetable.

Phase Five: Implementation and Public Reporting

After enactment, the law should require annual public reporting.

Performance indicators should include:

• The number and nature of complaints received;
• The time taken to investigate serious incidents;
• The proportion of cases in which relevant evidence was preserved;
• The number of findings referred for criminal or disciplinary action;
• The time taken for institutions to respond to recommendations;
• The proportion of corrective measures implemented; and
• Identified systemic problems and steps taken to address them.

The law should also provide for periodic independent evaluation.

The measure of success should not be the number of complaints alone. A rise in complaints could reflect increased misconduct, improved public awareness or greater confidence in the system. The data must be interpreted carefully.

The objective is to establish whether serious incidents are investigated fairly, whether remedies are effective and whether institutional practices improve over time.

11. Why This Should Be a National Reform Priority

Police accountability is sometimes framed as a conflict between law enforcement and civil liberties. That framing is misleading.

A professional police service needs public confidence. People are more likely to cooperate with law enforcement when they believe officers act within the law and that credible complaints will be investigated impartially.

Officers also benefit from clear operational rules. When standards are vague, decisions may be judged inconsistently after an incident. When rules are clear and evidence is preserved, it becomes easier to distinguish justified action from misconduct.

Benefits of a Dedicated Legal Framework

A dedicated legal framework would therefore serve several purposes simultaneously.

• It would give citizens a clearer route to accountability.
• It would strengthen the credibility of investigations.
• It would help identify institutional failures.
• It would establish more predictable standards for police conduct.
• It would reinforce the principle that public power must remain answerable to law.

This is not a demand for immunity for protesters or automatic liability for police officers. It is a demand for a system in which the facts are investigated independently and the law is applied fairly.

That is a standard worth pursuing regardless of which political party governs a state or the Union.

Conclusion: Accountability Is a Condition of Legitimate Authority

The police must be able to maintain public order. Citizens must be able to exercise their constitutional rights without facing unlawful violence.

Neither principle can be sacrificed to the other.

India has constitutional safeguards, criminal laws, human rights institutions and judicial decisions addressing police misconduct. Yet the evidence concerning Police Complaints Authorities demonstrates why the existence of a legal framework does not necessarily guarantee effective implementation.

The next step should be to bring greater coherence to the system.

A Police Accountability and Public Assembly Protection Act should establish independent scrutiny of serious incidents, enforceable evidence-preservation duties, clear standards for the use of force, accessible complaints procedures, protection against retaliation, effective remedies and mechanisms for correcting institutional failures.

The legislation must respect the constitutional division of powers. Article 252 offers a possible route for participating states, while model state legislation and carefully confined central provisions can form part of a broader reform programme.

The proposed law should also protect officers against arbitrary allegations, preserve due process and ensure that findings are based on evidence.

Ultimately, the issue is not whether the police should possess the authority to maintain order. They must.

The issue is whether that authority is exercised under clear rules, subject to credible scrutiny and accompanied by effective remedies when those rules are broken.

A democracy does not weaken its police by demanding lawful conduct. It strengthens the institution by ensuring that its authority rests on public trust rather than fear.

The right to protest must be meaningful. The power to police must be lawful. And when serious misconduct occurs, accountability must be more than a promise.

⚖️ Facing Police Misconduct or a Violation of Your Fundamental Rights?

When your rights are at stake, the right legal guidance can make a difference.

Whether you have experienced police excesses during a protest, unlawful use of force, wrongful detention, or a violation of your fundamental rights, understanding your legal remedies is the first step towards protecting your interests.

With over 25 years of legal experience, Adv. Tarun Choudhury, Supreme Court Advocate, brings a wealth of legal knowledge to the assessment of complex legal issues. Every matter deserves careful consideration of its facts, applicable laws and available legal remedies.

Do not leave important legal questions unanswered. Seek a professional assessment of your circumstances and understand the legal options available to you under Indian law.

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Frequently Asked Questions (FAQs)

1. What Is Police Misconduct in India, and What Legal Remedies Are Available to Victims?

Police misconduct in India includes unlawful detention, excessive use of force, custodial violence, abuse of authority, and violations of fundamental rights. Depending on the facts, victims may seek remedies under applicable criminal law, file complaints with senior police officials or Police Complaints Authorities where operational, approach human rights commissions, or seek relief from constitutional courts under Articles 32 and 226 of the Constitution of India. The appropriate remedy depends on the nature of the alleged misconduct and the available evidence.

2. Is the Right to Peaceful Protest a Fundamental Right Under the Indian Constitution?

Yes. The right to peaceful protest is protected by Articles 19(1)(a) and 19(1)(b) of the Constitution of India, which safeguard freedom of speech and expression and the right to assemble peaceably without arms. However, these rights are subject to reasonable restrictions permitted by the Constitution. Restrictions on public assemblies must be legally justified, and police action should be lawful, necessary, and proportionate to the circumstances.

3. How Can I File a Complaint Against Police Misconduct or Excessive Use of Force in India?

A person alleging police misconduct may submit a written complaint to senior police authorities, approach a relevant Police Complaints Authority where available, or contact the appropriate State or National Human Rights Commission, depending on the nature of the complaint. In cases involving alleged criminal offences or violations of fundamental rights, additional legal remedies may be available. Preserve relevant evidence, including medical records, photographs, videos, witness details, and complaint acknowledgements. Consider obtaining legal advice to identify the appropriate forum and procedure.

4. What Is the Need for a Police Accountability and Public Assembly Protection Act in India?

A dedicated Police Accountability and Public Assembly Protection Act could establish clearer safeguards for peaceful protests, independent investigation procedures for serious allegations of police misconduct, transparent complaint mechanisms, evidence-preservation requirements, and accountability for unlawful use of force. Although India already has criminal laws, constitutional remedies, human rights institutions, and departmental procedures, their effectiveness and implementation can vary. The proposed legislation aims to strengthen accountability and protect fundamental rights through a more consistent framework.

5. Can I Take Legal Action Against Police for Illegal Detention, Police Brutality, or Violation of Fundamental Rights?

Yes, legal action may be available where police conduct violates applicable law or fundamental rights. Depending on the circumstances, remedies may include a criminal complaint, proceedings before a competent court, a constitutional petition under Article 226 before a High Court, or a petition under Article 32 before the Supreme Court for enforcement of fundamental rights. Public-law compensation may also be considered in appropriate cases. The available remedy depends on the evidence, the nature of the violation, and the applicable legal requirements.

Sources and Legal Authorities for the Article

The following references are especially important for publication and subsequent legal verification.

Indian Judgments

• Prakash Singh v. Union of India, (2006) 8 SCC 1 — Supreme Court directions concerning police reform and Police Complaints Authorities. Read the judgment. Indian Kanoon
• In Re: Ramlila Maidan Incident, (2012) 5 SCC 1 — judicial scrutiny of the dispersal of a public gathering. Read the judgment. Indian Kanoon
• Anita Thakur v. Government of Jammu and Kashmir, (2016) 15 SCC 525 — police excesses during a protest. The full judgment should be consulted before relying on any particular factual or legal proposition.

Implementation Evidence

• Commonwealth Human Rights Initiative, Police Complaints Authorities in India: Status, Gaps & Challenges, published December 2023. Read CHRI’s findings. Human Rights Initiative

Indian Legislation and Constitutional Framework

• Bharatiya Nyaya Sanhita, 2023. Official text on India Code. India Code
• Bharatiya Nagarik Suraksha Sanhita, 2023, and related criminal-law materials. Ministry of Home Affairs: New Criminal Laws. Ministry of Home Affairs
• Constitution of India, Article 252. Read Article 252. IndiaCode by eCourtsIndia

International and Comparative Sources

• UN Human Rights Committee, General Comment No. 37 (2020), on Article 21 of the ICCPR. Read the document. OHCHR Document Store
• UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Read the principles. OHCHR
• United States Department of Justice, 34 U.S.C. § 12601 and federal law-enforcement misconduct enforcement. Read the DOJ explanation. Department of Justice
• UK Police Reform Act 2002, including the statutory framework for the Independent Office for Police Conduct. Read the legislation. Legislation.gov.uk
• South African government announcement on the Independent Police Investigative Directorate Amendment Bill, 31 July 2024. Read the announcement. South African Government

Key Takeaways: Police Accountability and the Right to Protest in India

• Police Accountability in India Needs Strengthening: Although India has criminal laws, departmental procedures, human rights institutions, and constitutional remedies to address police misconduct, gaps in implementation and accountability highlight the need for stronger safeguards.
• The Right to Peaceful Protest Is a Fundamental Right: Articles 19(1)(a) and 19(1)(b) of the Constitution of India protect freedom of speech and expression and peaceful assembly, subject to constitutionally permissible reasonable restrictions.
• Police Misconduct Can Violate Fundamental Rights: Unlawful detention, custodial violence, excessive use of force, and arbitrary restrictions on peaceful protests may violate constitutional protections, including Articles 14, 19, and 21, depending on the facts and circumstances.
• Victims Have Legal Remedies Against Police Abuse: Depending on the nature of the alleged violation, affected individuals may approach senior police authorities, Police Complaints Authorities where available, human rights commissions, or constitutional courts under Articles 32 and 226.
• Independent Investigation Is Essential for Police Accountability: Serious allegations involving custodial deaths, grave injuries, or excessive use of force warrant credible, impartial investigation mechanisms that promote transparency and public confidence.
• India Needs Stronger Protection for Peaceful Public Assemblies: A dedicated Police Accountability and Public Assembly Protection Act could establish clearer standards for crowd management, the use of force, complaint handling, evidence preservation, and accountability for unlawful police action.
• Existing Police Complaints Mechanisms Have Implementation Challenges: Police Complaints Authorities and other oversight institutions play an important role, but their availability, independence, resources, and effectiveness may vary across jurisdictions.
• International Human Rights Standards Offer Valuable Guidance: The International Covenant on Civil and Political Rights and relevant United Nations standards emphasise the protection of peaceful assembly and the necessity and proportionality of force used in law enforcement.
• Police Accountability Must Protect Both Citizens and Officers: Effective legislation should safeguard fundamental rights while providing clear operational standards, fair investigation procedures, and due process for police personnel facing allegations.
• Constitutional and Legislative Planning Is Crucial: Since police and public order fall primarily within the State List under the Seventh Schedule of the Constitution, any proposed national framework must carefully consider legislative competence, state participation, and constitutionally appropriate implementation.

Conclusion

Strengthening police accountability in India is essential to protecting fundamental rights, safeguarding peaceful protests, improving public trust, and ensuring that law enforcement operates within constitutional and legal boundaries.

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