Police Deviance And Superior Orders As A Defence: A Critical Examination Of Police Accountability, Obedience And The Boundaries Of Legal Responsibility Under Indian Criminal Law
P Pavithra, LL.M., The Central Law College, Salem
ABSTRACT
The defence of superior orders represents a significant issue in criminal jurisprudence because it raises a fundamental tension between institutional obedience and the individual accountability of public officials. Within policing, subordinate personnel may contend that their conduct resulted from instructions issued by senior officers and may attempt to rely upon such orders in cases involving custodial torture, unlawful arrest, fabricated encounters, or disproportionate use of force. This paper examines the doctrine of superior orders within the Indian legal framework through a doctrinal study of its statutory and judicial evolution. It examines the transition from Section 76 of the Indian Penal Code, 1860, to Section 14 of the Bharatiya Nyaya Sanhita, 2023, while also examining the historical development of the doctrine through the Nuremberg Trials and its subsequent recognition under Article 33 of the Rome Statute of the International Criminal Court. The analysis demonstrates that compliance with a superior’s direction does not constitute an unconditional defence under Indian criminal law. Legal protection arises only where the instruction itself is lawful or where the subordinate acted upon a bona fide and reasonable mistake of fact. Judicial decisions, including State of West Bengal v. Shew Mangal Singh, Chaman Lal v. Emperor, D.K. Basu v. State of West Bengal and Extra Judicial Execution Victim Families Association v. Union of India, indicate that police personnel cannot rely upon patently unlawful directions to avoid criminal responsibility. The paper further highlights deficiencies in the prevailing framework, particularly the absence of an explicit statutory procedure enabling officers to reject unlawful commands and the possibility of procedural safeguards concerning prior sanction for prosecution being misused. It concludes by recommending institutional reforms capable of preserving necessary police discipline while ensuring meaningful individual accountability for unlawful conduct.
Keywords: Police misconduct; superior directives; Section 76 IPC; Section 14 BNS; custodial abuse; command accountability; police responsibility.
