On 27 April 2015, the Supreme Court of India (SC) passed judgment in D.T. Virupakshappa v. C. Subhash, a case concerning government sanction prior to the prosecution of police officers for alleged criminal activity while on duty.

The police in India have an unenviable record when it comes to respecting the human rights of its citizens. One of several ways in which the legal accountability of Indian police is undermined is through the country’s criminal procedure. Sections 132 and 197 of the Code of Criminal Procedure 1973 prohibit the prosecution of certain categories of public officials, including any police officer, without the prior sanction of the state government. The SC, in a recent case, has been called upon to decide upon the necessity of such sanction in an instance of alleged custodial violence.

The victim was taken from his home by police, placed in custody, and informed that his release would be conditional upon confessing to the murder of an individual named Sanamma, the subject of an ongoing criminal investigation. When this proved unsuccessful, the victim, who was detained at the police station for over twelve hours, was then physically assaulted in an attempt to extract information from him The victim filed a criminal complaint against the police officers with the local magistrate, alleging wrongful confinement and grievous harm.

The police officers sought to quash the charges on the procedural grounds that sanction from the state government prior to criminal prosecution had not been obtained. The SC upheld the claim of the appellant, holding that the ‘offensive conduct’ was ‘reasonably connected with the performance of the official duty’ and quashed the criminal proceedings due to the absence of any prior sanction. In doing so, it failed to articulate the precise circumstances under which such ‘reasonable connection’ would be established. The judgment was also silent in answering whether all actions taken by a police officer, which are otherwise criminal in nature, are to be protected by the prior sanction requirement. While the court clarified that its judgment would not bar the victim from approaching the state government for sanction, this can often take considerable time and enable the officers accused to suborn witnesses and pressurise the complainant.

The SC reaffirmed the much criticised blanket prohibition against the criminal prosecution of most categories of public officials. The record of India’s apex court on this issue has not been entirely consistent though. Certain judgments have insisted that ‘all acts done by a public servant in the purported discharge of official duties cannot, as a matter of course, be brought under the protective umbrella of requirement of sanction’ since ‘performance of public duty cannot be camouflaged to commit a crime’. Yet, the court, has also held that if ‘there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the statutory protection.’

The philosophical origin of this protection to public officials lies in the dated doctrine of sovereign immunity, and judicial decisions in India have greatly reduced the spheres of protection available to public officials when acting in their official capacity.

In the case of the police, such a protection is designed to protect officers from vexatious and frivolous claims filed against them in criminal courts. In its 8^th Report in 1981, the National Police Commission noted the inefficacy of this protection for police officers and recommended that it be repealed. However, it also opined that the legal fees for the defence of accused police officers be borne by the government. A 2009 report from Human Rights Watch entitled ‘Broken System: Dysfunction, Abuse, and Impunity in the Indian Police’, also recommended that the Indian parliament repeal Section 197 or, alternatively, retain the provision but delineate the boundaries of what constituted ‘official duty’. It urged that ‘unconstitutional conduct such as arbitrary detention, custodial torture and ill-treatment, and extrajudicial killings’ be specifically excluded from its scope.

While these suggestions have gone unheard by the Indian parliament, a criminal law amendment in 2013 has removed the requirement for prior government sanction in cases where a public official stood accused of sexual offences.

Cases involving excess in police custody often involve complicated questions of law and fact, which can only be weighed against clear judicial precedent. However, there is a marked reluctance from the judiciary to determine a specific and consistent formula for assessing when the act of a police official falls outside the ambit of statutory protection. The SC in this case may have ceded a crucial opportunity to better define the contours of permissible, and therefore protected, conduct during police investigations.