Police reform and the crucial judicial actor
Police reform and the crucial judicial actor
1. CONTEXT OF THE NEWS
Recently a senseless act of police brutality gripped the public imagination due to the custodial death of a father-son duo in Thoothukudi district of Tamil Nadu.
This editorial looks into the much necessary police reforms in India and the role of the judiciary in it.
2. CUSTODIAL DEATHS IN INDIA
2.1 Details of theThoothukudiCase
- A father-son duo was arrested for an alleged violation of lockdown rules by opening their shops after permitted hours in Thoothukudi district of Tamil Nadu remanded to judicial custody.
- The police claim that the duo fell ill after being lodged in a sub-jail and breathed their last in a hospital.
- The Madurai Bench of the Madras High Court took suomotu cognizance of the incident and decided to closely monitor the progress of the statutory magisterial probe.
- The Chief Minister has announced a compensation of ?10 lakh each.
- Two sub-inspectors have been suspended and an inspector has been placed on compulsory wait.
3. JUDICIARY AS A BEACON IN POLICE REFORMS
3.1 Custodial Deaths in India
- The custodial deaths are a reminder of police brutality in India and how little development has been made in the domain of policing to unshackle it from its colonial heritage and reform it into a contributor and active participant of India’s democratic polity.
- In cases regarding police brutality and custodial death, the only ray of hope and action comes from the judiciary and as in this case too the Madras High Court has taken suomotu cognizance of the incident and is closely monitoring the situation.
- The constitutional courts in India have time and again issued directions to ameliorate the evil of police violence and custodial brutality in India.
- The lack of police reforms by legislative and a tendency of the police to continue functioning in the traditional way has led some scholars to hail the Supreme Court of India as the only institution in India that is working towards police reforms.
3.2 Right to life and Right to know.
- Some notable cases regarding issuing of directions by the judiciary are Joginder Kumar v. the State of UP (1994) and D.K. Basu v. State of West Bengal (1997), wherein the apex court issued guidelines to secure two rights with regard to any state action viz. a right to life and a right to know.
- These guidelines by the Court intended to curb the power of arrest and make sure that the accused is made well aware of all critical information regarding his / her arrest and also convey the same to family and friends immediately in the event of being taken in custody.
- These guidelines by the apex court were given statutory status only after a decade via the Code of Criminal Procedure (Amendment) Act, 2008 and today are a part of the law.
3.3 Prakash Singh v. Union of India Case (2006)
- In this case, the Supreme Court went ahead even further and pushed through new legislation to be passed by all States in India for governing police forces.
- The most vital component of this new legislation was a robust setup for accountability that contemplated a grievance redress mechanism.
- It took 11 years for the State of Tamil Nadu to implement this legislation (the law was passed in 2013 but came into effect only in 2017).
- Several other states have still not implemented these guidelines and stand in the contempt of the apex court.
- This paints a sorry picture of the lack of political will and how low the issue of police reforms ranks in the scheme of things.
4. WHY THE COURTS HAVE FAILED
4.1 Magistrate wielding the real power
- While the courts have tried to tackle and arrest the senseless tradition of police brutality for over more than two decades, yet many reports estimate up to five custodial deaths per day in the country.
- This is largely and undoubtedly due to the apathy and reluctance of the state institutions towards issuing police reforms.
- The writer suggests that the judiciary’s approach of passing guidelines and issuing directions has proven to be a failure.
- It is not the constitutional court but the ordinary magistrate, who is the judicial actor having real power to bring about substantial police reforms.
5. JUDICIARY MAKING EFFECTIVE REFORMS
5.1 Compensation claims and prosecutions
- The judiciary is often considered as the weakest branch of the state because mere noble intentions cannot transform a court order into reality.
- It requires money, resources, and the power of immediate implementation to put the words into action and the courts lack all the three.
- Studies have shown that even though the apex court has struck down many criminal laws deeming them as unconstitutional, they continue to be employed by the local police in various corners of the country.
- Instead of focusing their energies on passing more guidelines and orders, the courts must contend with the concrete cases that come their way and reveal the hardships a common man has to face against police violence in the way of getting justice, either through compensation claims or prosecutions.
5.2 Use of technology
- The Judiciary has also shown increasing support for “scientific” investigations to keep the police violence under check.
- The increasing support for techniques such as narcoanalysis, mandatory recording of all investigations, and issuing orders for installing closed-circuit television (CCTV) cameras inside police stations shows the concern and acceptance by the court of the frequent use of physical violence by the police to obtain evidence.
- There is a hope of delegitimizing and dismantling the traditional practices that rely upon the use of force as a means to extract truth as with the increasing use of technology by the police.
5.3 Culture of impunity
- The judicial court's mush also sheds the institutional baggage which leads them to protect the supposedly vulnerable morale of police, as evident when the Madras Court cited the Thoothukudi incident as a case of “few bad apples” ruining a system’s reputation.
- The writer suggests that it is the culture of impunity, which all the police officials experience, that drives a few of them to such brutality.
- The writer suggests that instead of minimizing, the courts should look at the possibility of imposing monetary penalties at the district level, to give away the message than the actions of 'a few bad apples' must be seen as the failure of the police force itself.
5.4 Reforming the local magistrate
- The apex court could strike an inspired move by reorienting their guidelines aimed to redefine the practices of magistrates as the courts exercise the power of superintendence over the magistrates when compared to other non-judicial actors and this can be more effective too.
- This is because it is the local magistrate is the point of the first contact for a citizen with rights given to him by the Indian constitutional, something which the largest democracy takes pride in.
- All arrested and detained individuals are to be produced before the local magistrate within 24 hours and hence any reform introduced at this level will be most effective.
- Thoothukudi incident has brought the inexcusable lapses by the magistrate on the surface.
- The laxity in remanding accused persons to further custody (both the police and judicial), is not the exception but the norm and should be taken into cognizance immediately.
The local magistrates are overworked and struggle with an ever-exploding docket. They are often in a rush to be done with “remand case”, rather than treat the accused with required courtesy and dignity which he/she is entitled to.
However, this is not the fault of the magistrate but the result of a systematic failure of which the courts are indirectly responsible for.
The courts can introduce much change without any legislative prerequisite if they focus their energies in the right direction and introduce reform in their own domain by striking the rod at the right place.