Police reform and the crucial judicial actor

IASbaba

July 2, 2020

GOVERNANCE / SECURITY

Topic: General Studies 2,3:

Security and its challenges

Government policies and interventions for development in various sectors

Context: The death of a father and son due to alleged custodial torture in Thoothukudi district of Tamil Nadu.

P. Jayaraj(58) and his son J Beniks(31), were taken into police custody for violating COVID-19 curfew hours. However, they died four days later allegedly due to custodial torture.
The Madurai Bench of the Madras High Court has taken notice of the Thoothukudi violence on its own and is “closely” monitoring the situation
According certain report, across India there are as many as five custodial deaths a day.

Impact of Custodial deaths

Against Human rights
Against rule of law
Leads to tyranny of State authorities
Leads to erosion of Democratic culture
Disproportionately impacts the poor & vulnerable who don’t have access to tools of justice
Increases burden on Judiciary for providing guidelines on police procedures

What are the SC judgements on Police reforms?

Supreme Court of India is often considered as the only institution working towards police reforms in the Indian state.
Through cases such as Joginder Kumar v. State of UP (1994) and D.K. Basu v. State of West Bengal (1997) 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 and
- Ensure that an accused person is made aware of all critical information regarding his 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.

Why Custodial deaths still persist or Why police reforms are lagging behind?

Long time to implement SC guidelines: It took reportedly 11 years for the State of Tamil Nadu to actually implement Prakash Singh and that several States remain in contempt of the Supreme Court’s judgment
Lack of Political will: Continued institutional apathy from bureaucracy & political masters towards the issue of police reform has prevented reform in policing
Inadequate Powers of Judiciary: The judiciary’s approach of simply passing directions and guidelines, has proven to be a failure. For judgements to transform into reality there is a need for money and a power of immediate implementation.
The gap between the highest court and the lowly police officer in India: Despite criminal laws being struck down as unconstitutional, they continue to be enforced in various parts of the country by local police

Culture of impunity: Madras High Court reportedly saw the Thoothukudi incident as the result of a “few bad apples” ruining a system’s reputation which leads to continuance of culture of impunity
Overworked magistrate: Struggling with an ever-exploding docket and in a rush to get done with the “remand case”, magistrate don’t treat an arrested person with the care and the consideration which leads to persistence of police brutality

Way ahead

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.
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.

Connecting the dots: