"The threat to human rights and bodily integrity are the highest in Police Stations. Custodial torture and other police atrocities are problems which still prevail in our society."Chief Justice of India NV Ramana, in a speech on 8 January
Speaking at an event to release a vision statement for the National Legal Services Authority (NALSA), Chief Justice of India NV Ramana rightly identified custodial torture and police atrocities as an extremely serious concern in India.
Highlighting the fact that these abuses by the police continue (even against the privileged) despite constitutional guarantees and declarations, the CJI zeroed in on legal aid services as a solution to the problem.
"To keep police excesses in check dissemination of information about the constitutional right to legal aid and availability of free legal aid services is necessary."
Unfortunately, while display boards and notices about legal aid at police stations and police sensitization sessions (as referred to by the CJI) are no doubt important to deal with the problem, they are unlikely to do much when there is so little accountability for police brutality.
And it is there that the courts – from magistrates to the High Courts to the Supreme Court – must, do more, or such statements by the CJI will be nothing more than lip service.
'A Welcome Statement, But Action Needed': Rebecca John
"I welcome the statement of the Chief Justice, because it is a recognition of what happens in police stations," says senior advocate Rebecca John, one of India's foremost criminal law practitioners.
This is no hyperbole – the Home Ministry recently revealed in Parliament that, according to data from the National Human Rights Commission, there had been 348 deaths in police custody during the last three years, and 1,189 incidents of custodial torture.
While it is good that the CJI has acknowledged how bad the problem is, however, John argues that there also needs to be parallel action from the courts. To act with speed and urgency, from taking cognisance of police brutality cases to taking action against the police officers responsible.
"Unless it is done with speed, and unless a very strong message is sent, that we will not allow this – it will not bring any accountability to the system," she explains.
The chief weapon of such accountability is the registration of FIRs against the police, which then need to be investigated fairly, followed by charge sheets and trials within a reasonable timeframe. The courts have a key role to play in all of these stages, but their ability to play it is impaired almost from the start, thanks to a problematic approach from the magistrates on the frontline.
"Why do courts take so long to register FIRs about these situations? Why is there implicit faith in the police version – which is largely absurd – versus the version of the petitioner? Why is there resistance to take action against the police officers?"Rebecca John
Even once FIRs are registered, there is a long way to go. The investigation has to be conducted by an independent agency. The probe needs to be monitored by a judge, the National and State Human Rights Commissions should be involved. And at the end there need to be consequences for the police officers responsible.
Recent examples show just how little appetite there is for all of this. John cites the case of the four injured men forced to sing the national anthem by police, one of whom died - the police officers in question have not even been identified in one and a half years despite a video of what happened.
Then there is the case of the men killed by the Hyderabad Police in an encounter, who had been accused of the rape and murder of a woman in December 2019. Despite the high court ordering an inquiry commission into their deaths, and even the Supreme Court getting involved, there had been no results, as CJI Ramana himself recently observed.
John also notes how there has been no action regarding what happened to anti-CAA protester Khalid Saifi, arrested by the Delhi Police on charges of conspiracy to organise the Delhi riots.
Despite clear evidence that at the time of his arrest he had none of the serious injuries that put him in plaster casts and a wheelchair, no action has been taken by the courts. The magistrate had sought an inquiry into the injuries, but the police never responded, without any consequences.
Data from the National Crime Records Bureau backs up these concerns. In 2019, for which the most recent data is available, only 49 cases were registered against police personnel for human rights violations (including torture), and in none of the cases taken to trial that year – new or pending – were any police personnel convicted.
Looking at cases against police personnel for custodial deaths in 2019 again, there were no convictions, despite 85 recorded custodial deaths. Cases were registered in only 38 cases, with charge sheets only filed in 5.
What Magistrates Need to Do Better
Justice (retd) Anjana Prakash, a former judge of the Patna High Court, is of the opinion that the most important role in dealing with cases of police brutality is that of the magistrates.
In any criminal case, the police have to produce a person arrested by them before a magistrate within 24 hours and decide whether they should be remanded to police custody (ie lockup) or judicial custody (ie proper jail). It is at this time that any attempts by the police to rough them up can be nipped in the bud by a magistrate who is serious about their job.
"Whenever I attended a session with these magistrates, I would tell them that every time an accused is brought before you for the first remand, you must talk to him personally and ask him his experiences about what has happened with him at the station," the retired judge, who has now returned to her practice, recounts.
"Ask him then what happened - was he treated alright, was he not treated alright. This should be something which should be religiously done. If you do this, it is the only way to stop police brutality; no amount of CCTVs and all that will help. It is the magistrate at the first instance who remands the accused person who's the only one who can do a big service in upholding human rights."Justice (retd) Anjana Prakash
If the magistrates were to do this, she explains, they wouldn't even need to wait for an accused or their family to file a complaint regarding police brutality, as they can register a case themselves once they've been made aware of such an incident.
But it's not just at these stages that a magistrate or other judges further up the hierarchy need to be watchful and ask the accused about their treatment, according to Justice Prakash.
These should be posed at further remand and bail hearings, and even during a trial, at the time the accused records a Section 313 statement, so as to cover custodial torture or other mistreatment by police or jail officials.
Custodial deaths (whether before or after remand) also need action, and again, magistrates have a duty to ensure these are investigated. According to the National Human Rights Commission (NHRC) guidelines, there must be a magisterial enquiry into all custodial deaths.
Once again the NCRB data shows just how poor the implementation of this is. Out of the 85 custodial deaths from 2019, magisterial enquiries were only launched into 30 of them.
Where the High Courts and Supreme Court (and CJI) Come In
The Supreme Court in 1996 addressed the issue of custodial deaths in the landmark DK Basu case, where it laid down guidelines against torture and spelled out procedural protections for people when arrested by the police. It also reiterated the need for ensuring an accused was aware of their rights and protections, including their right to legal aid.
"However, while in DK Basu and other police reform cases since then the Supreme Court has given directions and guidelines for the police, there are no clear guidelines or directions to the magistrates, who have such an important job," Justice Prakash observes.
Agreeing with her, Justice (retd) Amar Saran, a former judge of the Allahabad High Court, believes that the high courts in each state should step in here.
"Whether through suo motu cases or through the exercise of their supervisory powers on the administrative side, high courts can pass directions for magistrates and lower courts to follow in all cases, which can help address concerns about police brutality, custodial torture and custodial deaths."Justice (retd) Amar Saran
Such directions or guidelines could be used to ensure the right questions are asked to ascertain mistreatment of an arrested person, and could also crystallise the procedure for inquiries in the even of custodial deaths.
The high courts could also form committees to check up on whether these guidelines are actually being enforced, and take action against magistrates who fail to do so.
At present, these things can happen if the victim files a petition in the relevant high court, but both judges feel the judiciary owes a greater responsibility in such cases.
The apex court (and the CJI) could also take up these issues in a suo motu case if it wanted.
Rather than get into the guidelines and directions for magistrates and lower court judges to follow, however, it can instead look at getting the central government and state governments to implement reforms ordered by the court in previous cases that would go a long way in protecting the human rights of people in the police's clutches.
While Parliament did implement some of the DK Basu guidelines as amendments to the Code of Criminal Procedure, it did not do so for all of them, including special provisions in the Evidence Act for custodial death cases.
Implementation of other Supreme Court orders on police reform has also been patchy.
Take for example the direction in Prakash Singh in 2006 for setting up Police Complaint Authorities at district and state levels in all states and union territories.
According to the Commonwealth Human Rights Initiative's 2020 report on implementation of police reforms, however, only Andhra Pradesh had complied fully with the directions for setting up these authorities. Arunachal Pradesh had fully complied with the state level authority requirements, but failed to set up district level ones.
The other 20 states to have set up one or both committees had failed to comply with most of the directions, including for the authority's recommendations to be binding. Uttar Pradesh, Jammu and Kashmir and Telangana had not even bothered to set up any of these authorities.
UP says there are already enough forums for complaints to be filed, while J&K cited security concerns (of course), for their failure to implement the directions.
Since CJI Ramana is aware of just how bad the situation is – note that he said that the threat to human rights is "highest" in police stations – he could very easily set up a suo motu case at the apex court to look into enforcement of these kinds of reforms.
The top court could also consider passing guidelines for compensation of victims of police brutality, Justice Saran suggests. While it has passed orders to this effect in individual cases in the past, there are no consistent guidelines or directions for this – which could go a long way in fixing accountability.
At the end of the day, there will be little action from Parliament or the Executive when it comes to these serious issues – India remains one of only five countries that hasn't yet ratified the 1987 UN Torture Convention after all.
So if the courts are going to take notice, it is vital they don't settle for half measures.