Legal principles to reduce custodial deaths

Part of: GS-II- Governance POLICE REFORMS (PT-MAINS-PERSONALITY TEST)

Understanding the background of the problem

• In wake of custodial deaths in Tamil Nadu, the debate on the Roman dilemma: “Who will guard the guardians” rises again. Torture is anathema to democracy and cannot be tolerated in a civilized society.
• Answer to the prevention of torture can be found in multiple sources like Royal Commission in the UK, Law Commission reports and Police Commission reports in India and also Supreme Court’s progressive case law, like Joginder Kumar (1994) and Nilabati Behera (1993).
• However, the basic loophole which exists even today is that most torture is done before the arrest is recorded by the police. Safeguards obviously kick in only after the arrest is shown. This is a perennial, insoluble dilemma and all devious police forces globally use it.

Supreme Court judgement in DK Basu case

• The DK Basu judgment since 1987 is crucial in dealing with the issue of custodial deaths.
• The judgement has its origin from a letter complaint in 1986, which was converted into PIL.
• 4 crucial and comprehensive judgments — in 1996, twice in 2001 and in 2015 — lay down over 20 commandments, forming the complete structure of this judgement.

Details of judgment:

First, 11 commandments in 1996, focused on vital processual safeguards:

• All officials must carry name tags and full identification, arrest memo must be prepared, containing all details regarding time and place of arrest, attested by one family member or a respectable member of the locality.
• The location of arrest must be intimated to one family or next friend, details notified to the nearest legal aid organisation and the arrestee must be made known of DK Basu's judgement.
• All such compliances must be recorded in the police register, the arrestee must get a periodical medical examination, an inspection memo must be signed by the arrestee also and all such information must be centralised in a central police control room.
• Breach to be culpable with severe departmental action and additionally contempt also, and this would all be in addition to, not substitution of, any existing remedy.
• All of the above preventive and punitive measures could go with, and were not alternatives to, full civil monetary damage claims for constitutional tort.

8 other intermediate orders till 2015 sought:

• Precisely detailed compliance reports of above orders to be submitted by all states and UT and any delayed responses looked into by special sub-committees appointed by state human rights body.
• Also where no SHRC existed, the chief justice of the high courts to monitor it administratively.
• It emphasised that existing simple but potent powers for magisterial inquiries under the CrPC were lackadaisical and must be completed in four months, unless sessions court judges recorded reasons for extension.
• It also directed SHRCs to be set up expeditiously in each part of India.

The third and last phase of judgment ended in 2015:

• Stern directions were given to set up SHRCs and also fill up large vacancies in existing bodies.
• The power of setting up human rights courts under Section 30 of the NHRC Act was directed to be operationalized.
• All prisons had to have CCTVs within one year.
• Non-official visitors would do surprise checks on prisons and police stations.
• Prosecutions and departmental action to be made unhesitatingly mandated.

Where do we lack?

• In operationalising the spirit of DK Basu judgment, in punitive measures, in last mile implementation, in breaking intra-departmental solidarity with errant policemen and in ensuring swift, efficacious departmental coercive action plus criminal prosecution.
• A 1985 Law Commission report directing enactment of section 114-B into our Evidence Act, raising a rebuttable presumption of culpability against the police if anyone in their custody dies or is found with torture, has still not become law, despite a bill introduced as late as 2017.
• We still have abysmally deplorable rates of even initiating prosecutions against accused police officers. Actual convictions are virtually non-existent.

Consider the question “Custodial torture is an anathema to democracy. Examine the issues related to custodial torture and how is it against the basic fundamental rights? What steps should be taken to prevent such acts by the police functionaries?”

Conclusion

Monitoring and implementation of DK Basu by independent and balanced civil society individuals at each level, under court supervision, is sufficient to minimise this scourge. It is high time we take actions in this direction.

Need for Police reforms in India

Part of: GS-II- Governance POLICE REFORMS (PT-MAINS-PERSONALITY TEST)

Context: The Police system in India and its sorry state once again came to the fore recently when a father-son duo, namely P Jeyaraj (58) and Fenix (31) respectively, died in Police custody in Tamil Nadu. The relatives and protestors fear this to be a case of police brutality. The reason for their arrest was that they kept their shop open beyond the permitted time (restrictions placed in the light of COVID-19).

Historical Background

• The Police System is a colonial legacy. The first Police commission was set up in 1857 soon after the mutiny. First Indian Police Act was enacted in 1861-(PT)
• Post – independence, we are still governed majorly by Indian Police Act (IPA) of 1861 which was drafted as a direct consequence of the Revolt of 1857.
• Sir A H L Curzon commission was established in 1902-03 for Police Reforms and to look into issues arising because of Indian police Act 1861. It recommended the appointment of local people at officer level in the police system.
• National Police Committee, 1978 was the first commission at the national level after independence.
• It had a broad term of reference covering the police organization, its role, functionality, accountability, relations with the public etc.
• It produced eight reports including Model Police Act, between 1979-81. But the majority of recommendations of NCP have remained unimplemented.

Major issues with Police in India

• Risk to life: The risk to life in Police is very high. Policemen are killed in India in the performance of duties than in any other country of the world. There’s no indication that in future the risk element would be less.
• Police Infrastructure: The weaponry, vehicles etc. used by the police force at a lower level is obsolete and is unmatched with the modern weaponry used by the criminals and anti-social elements.
• Qualifications and training of police personnel: Police training methods have been outdated and aspects of human rights are largely ignored in training modules.
• The training of police officials is heavily biased in favour of higher-level officials. 94% of the total training expenditure is on IPS officers’ training.
• Unscientific criminal investigation techniques and lack of training in Human rights lead to inhuman techniques of investigation like the third degree which consists of hammering iron nails in the body, beating the soles of the feet, stretching apart the legs in opposite directions, hitting private part and other draconian acts.
• Huge vacancies: With the phenomenal expansion of the geographic area to be policed and the increase in the number of lives to be guarded, the Indian police, more than in many western democracies, have been stretched and outnumbered. There are only about 140 policemen per 100,000 people, a very poor ratio when compared to other modern democracies.
• Over-burden: Police force is over-burdened especially at lower levels where constabulary is forced to work continuously for 14-16 hours, 7 days a week. It adversely impacts their performance.
• Arduous nature of duties and working conditions: The nature of the duties is very uncertain and the police themselves say that policemen are on duty all the time – it’s a violation of Human Rights.
• The politicization of Police: Politicization of a police force is a major problem as it affects the autonomy of police force making them to subserve the interests of political executive at the cost of ordinary citizens.
• CID at the state level has failed to perform because of political cases led by the ruling parties against their opponents and because of excessive political interference by the political executives.
• Lack of coordination between centre and states is a matter related to the maintenance of law & order results in ineffective functioning of the police force. The dual command at district and state levels has resulted in the problem of coordination between the civil servants and police officials because of ego clashes and inconceivable personal differences.
• Ineffectiveness against new forms of crimes: The police force is not in the position to tackle present days’ problems of cyber-crimes, global terrorism, naxalism because of its structural weaknesses. Aversion towards usage of technology among police personnel
• Underutilisation of funds for modernisation: Both centres and states allocate funds for the modernisation of state police forces. These funds are typically used for strengthening police infrastructure, by way of the construction of police stations, and purchase of weaponry, communication equipment and vehicles. However, there has been a persistent problem of underutilisation of modernisation funds.
• Prevailing Corruption: The pay scales of police personnel especially at the lower levels are very low and they are forced to adopt corrupt means to earn their livelihood. Prevalence of the Rank system within the police force results in abuse of power by top-level executives over lower-level personnel.

Committee related to police reforms

• Gore committee on police training in 1971-73: The main thrust of the Committee’s recommendations was towards enlarging the content of police training from law and order and crime prevention to greater sensitivity and understanding of human behaviour.
• National police commission 1977, major recommendations were centred on the problem of insulating the police from illegitimate political and bureaucratic interference.
• In 2000, the Padmanabhaiah Committee on PoliceReforms was constituted to study, inter alia, recruitment procedures for the police force, training, duties and responsibilities, police officers’ behaviour, police investigations and prosecution.
• The Police Act Drafting Committee (PADC or Soli Sorabjee Committee) drafted a new model police bill to replace the colonial 1861 Police Act.

Supreme Court Judgments:

• The 2006 verdict of the Supreme Court in the Prakash Singh vs Union of India case was the landmark in the fight for police reforms in India. The Court provide the following directives to kick-start reforms:
  • Constitute a State Security Commission (SSC) to ensure that state government does not exercise unwarranted influence or pressure on the police.The main functions of the SSC were supposed to include drafting broad policy guidelines, evaluating the performance of the police and preparing an annual report to be placed before the legislature.
  • Ensure that the DGP is appointed through the merit-based transparent process and secure a minimum tenure of two years.
  • Police officers on operational duties (including SP and SHO) are also provided a minimum tenure of two years.
  • Separate the investigation and law and order functions of the police.
  • Set up a Police Establishment Board (PEB)to decide transfers, postings, promotions and other service-related matters of police.
  • Set up a Police Complaints Authority (PCA)at the state level to inquire into public complaints against police officers above the rank of Deputy Superintendent of Police.
  • Set up a National Security Commission (NSC) at the union level to prepare a panel for selection and placement of Chiefs of the Central Police Organizations (CPO) with a minimum tenure of two years.

NITI Aayog suggested the following reforms:

State-level legislative reforms:

• States should be encouraged, with fiscal incentives, to introduce ‘ The Model Police Act of 2015’ as it modernizes the mandate of the police.

Administrative and operational reform

• A Task Force must be created under the MHA to identify non-core functions that can be outsourced to save on manpower and help in reducing the workload of the police.
• Functions such as serving court summons and antecedents and addresses verification for passport applications or job verifications can be outsourced to private agents or government departments.
• The states should be encouraged to ensure that the representation of women in the police force is increased.
• India should launch a common nationwide contact for attending to the urgent security needs of the citizens.
• NITI Aayog also suggests moving police as well as public order to the Concurrent List to tackle increasing inter-state crime and terrorism under a unified framework.

Best Practices: Janamaithri Suraksha in Kerala: This project is an initiative of the Kerala Police to facilitate greater accessibility, close interaction and better understanding between the police and local communities. For example, Beat Constables are required to know at least one family member of every family living in his beat area, and allocate some time to meet with people outside the police station every week. Janamaithri Suraksha Committees are also formed with municipal councillors, representatives of residents’ associations, local media, high schools and colleges, retired police officers, etc. to facilitate the process.

Meira Paibi (Torch-bearers) in Assam: The women of the Manipuri Basti in Guwahati help with improving the law and order problem in their area, by tackling drug abuse among the youth. They light their torches and go around the basti guarding the entry and exit points, to prevent the youth of the area from going out after sunset.

Solutions:

• Need to strengthen the Criminal Justice System and grassroots-level policing institutions.
• More investment is needed in the recruitment procedure.
• Better training, better pay and allowances and creating a system that rewards initiatives need to be incorporated.
• Increase budget expenditure on police. Improving police infrastructure.
• Independent Complaints Authority. Need to adopt the latest IT-enabled services.
• Improve Citizen police participation like bhagidari in Delhi and Jana Maitri Suraksha in Kerala
• Strengthen its investigative capabilities and emergency response infrastructure.
• Police should be made more gender sensitive. 33% women's reservations in police should be implemented
• There is need for broader political awareness about the need for police reform. Some states like Kerala and Telangana have tried to take the process forward.
• PM Modi, at the Guwahati Conference of the Directors of General Police in 2014, enunciated the concept of SMART Police-a police which should be sensitive, mobile, alert, reliable and techno-savvy.