Police reform and the crucial judicial actor

Paper:

Main: General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.

Context:

  • The newest episode of sensational brutality has gripped public imagination.
  • Righteous indignation abounds on social media and the press.
  • Underneath that gloss, grief and agony probably crowd out every other emotion.
  • At my vantage point as someone working in the criminal justice system, the only emotion that the seemingly senseless act of violence inside a police stationin Thoothukudi, Tamil Nadu, evokes, is of extreme weariness.

Key Details:

  • The fatal violence by the police is a reminder of the problem of police violence and how little reform has happened in the domain of policing.

Judicial measures taken:

  • The Supreme Court of India through its various judgments has been working towards police reforms in India.
  • In cases such as Joginder Kumar v. State of UP and D.K. Basu v. State of West Bengal, important guidelines were passed to try and secure two rights in the context of any state action — a right to life and a right to know. Through the guidelines, the Court sought to curb the power of arrest, as well as ensure that an accused person is made aware of the grounds of the arrest.
  • These judicial guidelines were given statutory backing through the Code of Criminal Procedure (Amendment) Act, 2008.
  • The Supreme Court, in the Prakash Singh v. Union of India case, pushed through new legislation for governing police forces to be passed by States across India. A key component of the new legislation was a robust setup for accountability that contemplated a grievance redress mechanism.
  • Judicial concern with police violence is also witnessed in the judicial support for scientific investigations. The support for techniques such as narcoanalysis, ensuring video recording of investigations, passing orders for installing closed-circuit television cameras inside police stations, is based on the possibility of police employing physical force to obtain evidence. Through technology, the hope is to gradually delegitimise and dismantle a set of archaic practices reliant upon the use of force as a means to extract evidence.

Concerns:

Custodial deaths:

  • Despite several existing guidelines and laws, there are reports suggesting that across India there are as many as five custodial deaths a day.
  • This may point towards a culture of impunity among the state actors.
  • Constitutional courts have tried to change the reality of police brutality for well over two decades. The judiciary’s approach of simply passing directions and guidelines has not been very effective.
  • Despite criminal laws being struck down as unconstitutional, they continue to be enforced in various parts of the country by local police.
  • The practice of remanding accused persons to further custody (both the police and judicial), has become the norm instead of being an exception.
  • The overworked magistrate, struggling with an ever-increasing number of cases, is very often in a rush to get done with the “remand case”, rather than treat an arrested person with the care and consideration that he/she deserves and is entitled to.
  • The issue of police reform ranks very low in the scheme of things for governments. There is continued institutional apathy towards the issue of police reform. There was inordinate delay in implementing guidelines issued through the Prakash Singh case and still, several States remain in contempt of the Supreme Court’s judgment.

Way forward:

  • Rather than limiting itself to passing more guidelines, constitutional courts must seriously contend with the concrete cases that come their way and take a hard stand.
  • Passing compensation claims or ensuring timely prosecutions in such cases could help break the sense of impunity. The Courts could also consider sanctions at a larger scale and impose monetary penalties at the district level, to drive home the message that the erring actions of one officer must be seen as a failure of the force itself.
  • The constitutional courts could reorient their guidelines to try and change the practices of magistrates, over whom they exercise powers of superintendence.
  • The ordinary magistrate is the judicial actor wielding real power to realise a substantial change in police practices.
  • It is the local magistrate before whom all arrested and detained persons must be produced within 24 hours, and thus becomes the point of first contact for a citizen with the constitutional rule of law.