INDIA: Judiciary is yet to catch up with reality in the country

On 24 July 2015, the Supreme Court of India, while deciding Criminal Miscellaneous Petition 1606/1997 along with Writ Petition (Criminal 539/1986), in short D.K. Basu (2), has directed the state governments to form State Human Rights Commissions in the states of Delhi, Arunachal Pradesh, Mizoram, Meghalaya, Tripura, and Nagaland. In the same Order, it has also directed the state governments to appoint chairpersons, and members at the State Human Rights Commissions, where these positions have been left unfilled for long periods of time. These states include Jammu and Kashmir, Jharkhand, Karnataka, and Tamil Nadu.

In the same order, the Court has directed the state governments to constitute district level human rights courts in all states. It is only in the state of Sikkim that such a facility exists today.

The Court has further directed the state governments to install CCTV cameras in all police stations, and prisons, and to appoint non-official visitors to make random and surprise inspections at prisons and police stations. The Court has fixed a deadline of six months, starting from July 2015, for the states to set up human rights commissions. The Court has fixed a period of three months for all vacancies at the State Human Rights Commissions to be filled. The Court has further instructed the state governments that any future vacancies arising at the State Human Rights Commissions must be filled within a period of 90 days from the day such vacancy occurs. It has also directed the state governments to install CCTV cameras in detention facilities within a period of two years.

An important aspect of these directives by the Supreme Court is that the Court has directed that in all cases “… where an enquiry establishes culpability of the persons in whose custody the victim has suffered death or injury, an appropriate prosecution for the commission of offences disclosed by such enquiry report and or investigation in accordance with the law…” must follow. The court has also directed the state government to appoint at least two women constables in each police station, where the number of women taken for custodial interrogation or interrogation for other purposes is high.

These above two directives, if the state governments implement them with honesty, will assist considerably to reduce the number of instances where victims allege that despite their complaint about torture, or death in custody, the government has failed to initiate a prosecution. The directives regarding appointment of women constables could also act as an additional layer of protection when women are detained in custody. It will also contribute to reduce the existing gender gap within the police force.

While this decision by the Supreme Court is a step forward in relation to D.K. Basu (1), the Court has still fallen short of recognising the need, and therefore directing the government, to clinically address custodial torture and custodial death in India. It is for this reason that the open call made by the Director General of Police in Kerala, Mr. Senkumar, is ahead of the Indian Judiciary’s approach to addressing the perennial problems of policing in the country.

The DGP of Kerala has rightly identified some of the major concerns that affect policing and its overall quality in India. The DGP has identified that what is required is the modernisation of the police force, as a whole. Modernisation, as rightly conceived by the DGP, involves active participation by policy makers, bureaucracy, police officers, media, experts in science and technology – forensics and IT, in particular – and even larger civil society participation. The open call made by the DGP, appealing for support and for opinion on the modernisation of the police force, also strongly suggests that, increasingly, within the police force itself, the need to modernise is now felt deeply.

Modernising the police force, however, is not the responsibility of the police or the Judiciary. It is one of the fundamental duties of the government to provide all resources that are required to set up modern policing institutions in the country.

Indian police is one of those state institutions that has been neglected and has continuously been smothered out of its life, by it being denied resources to undertake day-to-day functions. When the state governments fail to provide adequate resources and facilities for the police to function, expecting the same police not to resort to custodial torture that could also lead into custodial death makes no sense.

India has perhaps one of the widest gaps in the police to people ratio. This must end. It implies adequate recruitment of human resources in the police department, and the capacity of the police department to provide modern training to the newly recruited officers.

In the context of science and technology, in which India has taken a lead in the world for its development, the availability of such technology for crime investigation in the country is at the moment inadequate, to say the least. As opposed to circumstances that existed 50 years ago, crime investigation today is less and less dependent upon oral evidence.

In all modern democracies, the need to interview a suspect or witnesses has today taken a back seat because most crimes can be investigated, and proven, with the use of advanced science. However, in India, the government does not adequately set up basic facilities like forensic laboratories. Much worse are conditions where humans, or human body remains, undergo what is called a medical legal examination.

Eight years ago, the AHRC along with its partner organisation in India, documented the appalling conditions in what are known as autopsy procedures in India. Revealed through video documentation were tin roof sheds instead of proper mortuaries, where human remains were left unattended for years before an examination was undertaken on these remains.

The AHRC’s documentation brought to light that, invariably, in all cases, unqualified persons undertake such examination; in some parts of India a particular underprivileged caste community called Doms does this. It is trite to argue that such examinations of human remains are neither scientific nor capable of proving an offence. These examinations will not assist crime investigations. This practice, which continues today, only speaks to the neglect the government has entertained so far regarding one of the vital aspects of crime investigation in India.

Similar absence of facilities, or lack of access to available facilities, exist concerning other scientific aspects of crime investigation like DNA sampling, or finger printing, or communication analytics, or even to simple technologies, for instance footage of traffic cameras on busy roads. So, the only possibility available for a police officer to investigate a crime is to take into custody anyone, and everyone, whom the officer suspects of having committed a crime, and using force upon the person to make them confess to the crime.

The police also employ similar tactics upon witnesses, or, in desperation, even make up witness statements, which are all destined to fail the test of proof during a criminal trial in India. Unfortunately, in the process, police officers engage in torture, and in the commission of other crimes. The resultant chaotic atmosphere also provides ample opportunity to breed corruption. The overall result of all of this is a demoralised police force.

It is to address this, that Union and state governments should take immediate steps to provide adequate resources to rebuild the Indian police force into a service delivery agency that is capable of meeting the expectations of the people. Unfortunately, in India there is a stark contrast between the expectations of the people and that of persons in power, like the politicians who often decide governing policies for the country.

It has not been a priority for any government that has been in power in India since independence to restructure and modernise the Indian police. The result is Indian police today operate in a mind-set fixed by an out-dated concept of policing, which dates back at least 200 years, and are forced to pretend to be capable of serving the needs of the people in a country that is fast developing.

Policing by consent is still an alien concept in India. It is not merely the responsibility of the police to bring about this change, and singularly the police will not be able to achieve it. It is the collective responsibility of the government and the Indian civil society to bring this change.

In such a context, a direct conflict between policing and people’s aspiration occurs. The government, the Judiciary, and Indian policy makers have all equally failed to understand and end this unacceptable reality. Instead, attempts like setting district level human rights courts are made, portraying an impression that it is because of the absence of district level human rights courts that the police engage in custodial torture and deaths happen in custody.

Even the civil society in India has largely ignored this fact. As of today, the need for police modernisation has neither taken the centre stage in India, nor has it become a social movement. What the Indian civil society and the country’s media have been engaged in, and that too to a limited extent, is to blame the police for everything. What the police do is often the result of the environment the personnel are forced to work in is ignored. 

The discussion about police modernisation and fair trial is essentially a discussion about the concept of justice. India’s Judiciary, and its civil society, including the media has turned a big blind eye on the subject. Therefore, today, even demands from the police department itself to modernise do not receive adequate attention. Until this is changed, no matter how many human rights courts are set up in India, whether such courts exists in every district or even in all villages of the country, it will not still be able to be a workable substitute to the dire need of police modernisation in India.

This critique will be incomplete, without stating that, in a country where the Judiciary takes 29 years to decide on a fundamental issue like police reforms, what right does the Judiciary have to criticise the government and its manifold agencies for failing to discharge duties?

Document Type : Statement
Document ID : AHRC-STM-125-2015
Countries : India,
Issues : Administration of justice, Corruption, Democracy, Impunity, Judicial system, Police negligence, Prosecution system, Rule of law, Torture,