In the absence of clear legal mechanisms ensuring access and transparency, it will be impossible to hold the police accountable.
On January 27, the Supreme Court has called for responses from all states and Union Territories on its judgement ordering that CCTV cameras be installed in police stations to ensure accountability for torture and custodial violence. These directions, intended to further the fundamental right to life under Article 21, were passed on December 2 in Paramvir Saini v Baljit Singh. They also extended to the offices of investigative agencies like the Central Bureau of Investigation, the National Investigation Agency and the Enforcement Directorate.
The custodial deaths of Jeyraj and Bennicks in Tamil Nadu last year underscored the need for urgent implementation of oversight mechanisms in cases of custodial violence. The Supreme Court has an opportunity to supplement these directives with clear standards on police accountability, rights of victims and transparency in judicial proceedings.
The intervention by the People’s Union for Democratic Rights in Delhi thanas and prisons over the years have found that victims are unable to access legal remedies for violations due to the complicity between investigative agencies. These ties of “brotherhood and fellow feeling”, as per the Law Commission of India, serve to shield perpetrators from accountability, and may best be demonstrated by the course of proceedings in the Paramvir Saini case itself.
Inspector Paramvir Saini is one of six police personnel of Sajanpur Police Station in Pathankot district of Punjab accused of illegal detention and torture of Salinder Singh and Achmal in September 2016. Their sons filed a Writ Petition before the Punjab and Haryana High Court, under which a Warrant Officer was appointed to rescue the two men from the Sujanpur police station.
In his report to the High Court, the Warrant Officer submitted that the police prevented him from entering the police station, after which they also delayed his access to documentary records. In a later hearing, the High Court noted that this delay was used to fabricate records. In November 2016, the High Court ordered the registration of FIR and administrative action against the accused police officers, and payment of compensation of Rs 1 lakh each to the victims.
Paramvir Saini appealed this judgment before the Supreme Court.
Even though the Supreme Court has so far not granted relief to Saini, the state government has not furnished any credible reason for delaying the registration of an FIR against the accused police officers. Failing to register an FIR is a common method by which the police hinder appropriate legal action.
In January 2018, a young man died in the temporary lockup at Karawal Nagar police station in North East Delhi, but the police have not registered an FIR by projecting it as a suicide. The father of the deceased has approached the court seeking the registration of FIR, clearly alleging wrongdoing by two police officers. Yet his application has been pending for more than two years as the police delayed in filing their reply.
This kind of lack of action against guilty police is not unique but rather depressingly routine. The PUDR has found that in cases of custodial torture and deaths where the police are accused, FIR registration, fair investigation and prosecution is extremely rare.
Victims and their kin struggle to navigate this opaque maze of legal proceedings as their rights to access relevant records and evidence is not recognised. Though the Supreme Court directions entitle victims to have CCTV footage secured through a court or the State Human Rights Commission, they do not grant access to a copy of the footage itself.
In another case monitored by PUDR, involving death in Nand Nagri police station in Delhi in June 2019, the family has still not received a copy of the FIR pursuant to a magisterial enquiry despite a formal representation to the station house officer. A copy of the enquiry report was also denied to him, while the postmortem report was provided only upon moving an RTI application.
In light of this, the Supreme Court’s directive could further be clarified permitting victims to access a copy of CCTV footage and other records.
The Madras High Court recently directed that in all cases of custodial violence, a copy of the postmortem report and its video footage should be necessarily given to the victims. In such cases where the police are both the accused and the investigators, it is imperative to secure independent access of victims to the records to prevent deliberate concealments and to access legal remedies.
The Warrant Officer’s ordeal in Paramvir Saini’s case also shows how judicial action ordered against perpetrators is inevitably met with resistance from their colleagues. Compensation was still denied to the victims, because of which they were compelled to file a contempt petition. The victims stated before the High Court that they were being pressurised to withdraw all cases. The High Court had given the state a final opportunity to comply with its orders, but before this could happen, the victims withdrew their case on the next date for inexplicable reasons. Meanwhile, Paramvir Saini was promoted as the Deputy Superintendent of Police.
Even for the installation of CCTV cameras, there is repeated non-compliance of Supreme Court directives, which were first passed in 2015 in the DK Basu case, again in 2018 in Shahfi Mohammad v. State of Himachal Pradesh, but without clear compliance thus far.
Given the strong ties of brotherhood among the police, installation of CCTV cameras is only one step to address the systemic impunity enjoyed by perpetrators. Case after case shows the deep resistance of police officers in granting access of documents to victims and a continuous design to protect their brethren from any investigative or prosecutorial action.
In such a situation, implementation of any guidelines would be a casualty. While this technological solution is welcome, in the absence of clear legal mechanisms ensuring access and transparency, it will be impossible to hold the police accountable for torture and custodial violence.