Updated: July 1, 2020 9:45:13 am
In the current context of the reprehensible custodial deaths in Tamil Nadu, I am reminded of my own tryst with this seminal issue, being the Supreme Court’s Amicus on the subject, through the important DK Basu judgments, since 1987. Starting with a letter complaint of 1986, this converted PIL spawned four crucial and comprehensive judgments — in 1996, twice in 2001 and in 2015, laying down over 20 commandments.
Additionally, it led to at least five other procedural, monitoring and coordinating judicial orders, in the best traditions of continuing mandamus. These have created a valuable and seamless web of legal principles and techniques to reduce custodial death and torture. Little more by way of theoretical structure is required if DK Basu’s comprehensive coverage is genuinely implemented. But where we fail — as in many other things in this country — is in operationalising the spirit of DK Basu, in punitive measures, in last mile implementation, in breaking intra-departmental solidarity with errant policemen and in ensuring swift, efficacious departmental coercive action plus criminal prosecution.
As Amicus, we started with the existential Roman dilemma: “Who will guard the guardians”, the so-called “rakshak bhakshak” syndrome. Justice AS Anand, who piloted it till the end, based his approach on my written submissions, generously adding praise, tracing how torture is anathema to democracy, tracing Royal Commissions in the UK, Law Commissions and Police Commissions in India, Supreme Court progressive case law, like Joginder Kumar (1994) and Nilabati Behera (1993), to grapple with the core issue, not really soluble even today: Relatively little highhandedness occurs after formal arrest, most torture is done before the arrest is recorded. Safeguards obviously kick in only after the arrest is shown. This is a perennial, insoluble dilemma and all devious police forces globally use it.
The first 11 commandments in 1996, therefore, focused on vital processual safeguards: All officials must carry name tags and full identification, arrest memo must be prepared, containing all details regarding time and place of arrest, attested by one family member or respectable member of the locality. The location of arrest must be intimated to one family or next friend, details notified to the nearest legal aid organisation and arrestee must be made known of each DK Basu right, all such compliances must be recorded in the police register, he must get periodical medical examination, inspection memo must be signed by arrestee also and all such information must be centralised in a central police control room. Significantly, breach of this was to be culpable with severe departmental action and additionally contempt also, and this would all be in addition to, not substitution of, any existing remedy.
This first judgement went further, applying the principle that rights without remedies are illusory and futile. Hence, all of the above preventive and punitive measures could go with, and were not alternatives to, full civil monetary damage claims for constitutional tort.
The decades in between detailed judgements were spent in vital orders of monitoring and goading compliance. Each state and union territory was forced to file information in pre-designed charts by our team to make comparisons and collations simple. To get all responses and data from states after several adjournments for a country of India’s size was no mean achievement of the SC. They were then presented, analysed in court state-wise, and general and state-specific directions were then formulated, based on data found in these pre-prescribed formats.
Hence, the eight other intermediate orders till 2015 sought precise detailed compliance reports on each parameter, shamed deficient and delayed responses, directed any state human rights body, where constituted, to set up special sub-committees to monitor and report as eyes and ears of the SC and where no SHRC existed, directed the chief justice of the high courts to so monitor administratively. It emphasised that existing simple but potent powers for magisterial inquiries under the CrPC were lackadaisical and must be completed in four months, unless sessions court judges recorded reasons for extension. It also directed SHRCs to be set up expeditiously in each part of India.
The third and last phase ended in 2015, ironically with another chief justice from J&K, CJI TS Thakur. Stern directions were given to set up SHRCs but, more importantly, to fill up large vacancies in existing bodies. The as yet unused power of setting up human rights courts under Section 30 of the NHRC Act was directed to be operationalised. All prisons had to have CCTVs within one year — a similar direction sought by me for all police stations was given as a court exhortation to start a phase-wise CCTV in every police station without formulating it as a mandatory direction. It was directed that non-official visitors would do surprise checks on prisons and police stations and prosecutions and departmental action were unhesitatingly mandated.
I am amused by the ignorance and mulishness of both the Tamil Nadu police and their political masters when they suggest that DK Basu applies only in police and not in judicial custody. That is a travesty and a pitiable distortion. DK Basu is all-encompassing, loophole covering and makes absolutely no such distinction amidst categories of custody. Our democracy tax is too high and too dilatory: A 1985 Law Commission report directing enactment of section 114-B into our Evidence Act, raising a rebuttable presumption of culpability against the police if anyone in their custody dies or is found with torture, has still not become law, despite a bill introduced as late as 2017. We still have abysmally deplorable rates of even initiating prosecutions against accused police officers.
Actual convictions are virtually non-existent. Figures for initiating departmental action are better but woefully low and hardly ever taken to successful dismissal. Not much is needed. Monitoring and implementation of DK Basu by independent and balanced civil society individuals at each level, under court supervision, is sufficient to minimise this scourge. Sadly, this is so near yet so far.
This article first appeared in the print edition on July 1, 2020 under the title “Guarding the guardians”. The writer is an MP, former chairman Parliamentary Standing Committee on Law, former ASG, India and national spokesperson, Congress. He is SC Amicus since 1987 on custodial death/torture issues
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