Police reform and the crucial judicial actor
The senseless act of violence inside a police station in Thoothukudi, Tamil Nadu evokes extreme weariness. This fatal violence by state actors is a cruel reminder of just how little unshackling has happened in the domain of policing to free this essential public sphere from the demons of its colonial past. The Madurai Bench of the Madras High Court has taken notice of the Thoothukudi violence on its own and is “closely” monitoring the situation.
Judiciary induced police reforms
- To ameliorate the problem of police violence the top court has intervened in the 1990s through cases such as Joginder Kumar v. State of UP [AIR 1994 SC 1349] and D.K. Basu v. State of West Bengal [(1997) 1 SCC 416], where 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 all critical information regarding her arrest and also convey this to friends and family immediately in the event of being taken in custody.
- It took a decade, and in the form of amendments, as the Code of Criminal Procedure (Amendment) Act, 2008 to give statutory backing to these judicial guidelines; it remains part of the law today.
- The Supreme Court went even further in the Prakash Singh v. Union of India [(2006) 8 SCC 1] case where it 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. That it took reportedly 11 years for the State of Tamil Nadu to actually implement Prakash Singh (a law passed in 2013 but only given effect in 2017), and that several States remain in contempt of the Supreme Court’s judgment, give some insights into how seriously the issue of police reform ranks in the scheme of things for governments.
- Judicial concern with police violence is also witnessed in a different manner — judicial support for “scientific” investigations. The support and fascination for techniques such as narcoanalysis, ensuring video recording of investigations, passing orders for installing closed-circuit television cameras inside police stations, all comes from a place of grudging acceptance by courts about how often police employ physicality to obtain evidence.
Falling short of reforming the institution
- Constitutional courts have seemingly tried to change our reality of police brutality for well over two decades. Yet, across India there are as many as five custodial deaths a day. It is clear enough evidence that the judiciary’s approach of simply passing directions and guidelines, has proven to be a failure, and that it is the ordinary magistrate, and not the constitutional court, who is the judicial actor wielding real power to realise substantial change in police practices.
- The gap between the highest court and the lowly police officer in India has been demonstrated through studies which show how despite criminal laws being struck down as unconstitutional, they continue to be enforced in various parts of the country by local police. Rather than expend energies in only passing more guidelines, constitutional courts must seriously contend with the concrete cases that come their way and expose how hard it is for a common man to get justice against police violence, either through compensation claims or prosecutions.
- Rather than minimise, perhaps it is time to 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.
- Finally, constitutional courts could strike an inspired move by reorienting their guidelines to try and change the practices of magistrates, over whom they exercise powers of superintendence, as opposed to other non-judicial actors.
- This is not the fault of the magistrate but the crystallisation of a systemic failure which constitutional courts are indirectly responsible for, and could do much to change.