Wednesday, October 27, 2021

Bold judicial Initiative to prevent “third degree” by police

Will third degree treatment by police become thing of past? Perhaps. Hopes are raised by the apex court’s order of 2nd December.

‘Who will police the police’ is a big question for which world could not give any answer till today. But SC gave answer – Cameras can police the police.  Possibility of a watch either by citizen through RTI or judiciary through footage of camera recording will prevent the phenomenon of hurting the person to confess or admit a crime.  Transparency is the system that helps police not to resort to third degree methods to extract crime related information.

Supreme Court asked government to fix camaras in every possible place where the Police interrogates the persons. To avoid efforts or difficulties of investigation, the police mostly use easy technic of torture to extract the information and then collect evidence. The technology available could be effectively used for prevention of violation of Human Rights by police.

Police under the watch of camera

The Supreme Court on 2nd December was examining a case of custodial torture in Punjab and considering issue of CCTV installation in police stations and examination of witnesses by police. The Bench directed the Governments at the Centre, all the states and union territories to install CCTVs with night vision cameras in each police station, including central probe agencies such as CBI, ED, NIA etc across India. Justice RF Rohinton Nariman, heading a Bench with two other judges K.M. Joseph, Aniruddha Bose, said: “The state and union territory governments should ensure that CCTV cameras are installed in each and every police station functioning in the respective state and/or union territory. In addition, the Union of India is also directed to install CCTV cameras and recording equipment in the offices of: CBI, NIA, ED, NCB, DRI, SFIO and any other agency which carries out interrogations and has the power of arrest”…..The CCTV systems “must be equipped with night vision and must necessarily consist of audio as well as video footage…The SHO of the police station concerned shall be responsible for the working, maintenance and recording of CCTVs”. the SC also ordered constitution of Oversight Committees at state and district levels for this purpose.

Provide Electricity and internet

Fine. But most of the areas in our country do not have power connection and internet bandwidth. The SC took care of this situation and ordered that in areas without electricity and/or internet, the States/UTs have to provide the same as expeditiously as possible using any mode of providing electricity, including solar/wind power.

Mandate to Store for 18 months

Supreme Court went into details and ordered that the CCTV camera footage should be stored in digital video recorders and/or network video recorders. Importantly, the recording system should be such that the data stored therein is preserved for 18 months, and said: “If the recording equipment, available in the market today, does not have the capacity to keep the recording for 18 months but for a lesser period of time, it shall be mandatory for all states, union territories and the Central government to purchase one which allows storage for the maximum period possible”.

Role for SHCs

The top court has rightly recognized the role for State Human Rights Commissions and directed setting up of District level Human Rights Courts as prescribed under Section 30 of Human Rights Act. The court said in case of serious injury and/or custodial deaths, the injured persons shall be free to complain to the State Human Rights Commission as also to Human Rights Courts.

SC orders not implemented

It was not for the first time SC was dealing with this issue. On 3 April 2018 in SLP (Crl) No. 2302 of 2017, in Shafhi Mohammad v. State of Himachal Pradesh (2018) 5 SCC 311, it has directed that a Central Oversight Body (COB) be set up by the Ministry of Home Affairs to implement the plan of action with respect to the use of videography in the crime scene during the investigation. The Supreme Court in D.K. Basu Vs. State of West Bengal & Others (2015) 8 SCC 744, held that there was a need for further directions that in every State an oversight mechanism be created whereby an independent committee can study the CCTV camera footages and periodically publish a report of its observations thereon. The COB was further directed to issue appropriate instructions in this regard at the earliest. Court wanted COB to issue necessary directions to make videography a reality with implementation of first phase by July 2018, which did not happen. The crime scene videography ought to be introduced at least at some places as per viability and priority determined by the COB.

The Ministry of Home Affairs constituted COB  to oversee the implementation of the use of photography and videography in the crime scene by the State / Union Territory Government and other Central Agencies, to suggest the possibility of setting up a Central Server for implementation of videography.

Directions were issued to the Administrators of the Union Territory, State Governments and other Central Agencies for effective implementation of the use of photography and videography at the crime scenes, and to furnish an Action Taken Report on the implementation of the use of videography in the crime scene.

Non-Compliance by states

The SC mentioned that nothing substantial was done for 2 and half years to implement the SC directions and impleaded all states and union territories to file affidavits explaining the compliance of its earlier orders. The compliance affidavits and Action Taken Reports were filed by 14 States (till 24.11.2020), namely, West Bengal, Chhattisgarh, Tamil Nadu, Punjab, Nagaland, Karnataka, Tripura, Uttar Pradesh, Assam, Sikkim, Mizoram, Madhya Pradesh, Meghalaya, Manipur; and 2 Union Territories, namely, Andaman & Nicobar Islands and Puducherry. (It means two Telugu states did not file). But they failed to disclose the ground position of installation of CCTV cameras in each police station. SC noticed that they are bereft of details with respect to the total number of Police Stations functioning in the respective State and Union Territory; total number of CCTV cameras installed in each and every Police Station; the positioning of the CCTV cameras already installed; working condition of the CCTV cameras; whether the CCTV cameras have a recording facility, if yes, then for how many days/hours, have not been disclosed.

When most of the States do not file affidavits, though mandated, and do not disclose the real status, can we hope that this judgment becomes a reality? The constitution of Oversight Committees in accordance with the Order dated 03.04.2018, and/or details with respect to the Oversight Committees already constituted in the respective States and Union Territory have also not been disclosed. The apex court instructed states and UTs to file compliance affidavits within six weeks.

SC reminded that these directions are in furtherance of the fundamental rights of each citizen of India guaranteed under Article 21 of the Constitution of India. It directed the states and UTs to implement 2018 order of SC both in letter and in spirit as soon as possible and file affidavits of compliance within six weeks.

Duties of State Level Oversight Committees

The constitution of Oversight Committees in accordance with Supreme Court Order dated 03.04.2018 should be done at the State and District levels. The State Level Oversight Committee (SLOC) must consist of: (i) The Secretary/Additional Secretary, Home Department; (ii) Secretary/Additional Secretary, Finance Department; (iii) The Director General/Inspector General of Police; and (iv) The Chairperson/member of the State Women’s Commission.It shall be the duty of the SLOC to see that the directions passed by this Court are carried out. Amongst others, the duties shall consist of: a) Purchase, distribution and installation of CCTVs and its equipment; b) Obtaining the budgetary allocation for the same; c) Continuous monitoring of maintenance and upkeep of CCTVs and its equipment; d) Carrying out inspections and addressing the grievances received. Similarly, the District Level Oversight Committees should also be constituted with similar obligation.

Facilitate complaints

The Court directed facilitation of victims to complain. It said: “Whenever there is information of force being used at police stations resulting in serious injury and/or custodial deaths, it is necessary that persons be free to complain for a redressal of the same. Such complaints may not only be made to the State Human Rights Commission, which is then to utilise its powers, more particularly under Sections 17 and 18 of the Protection of Human Rights Act, 1993, for redressal of such complaints, but also to Human Rights Courts, which must then be set up in each District of every State/Union Territory under Section 30 of the aforesaid Act. The Commission/Court can then immediately summon CCTV camera footage in relation to the incident for its safe keeping, which may then be made available to an investigation agency in order to further process the complaint made to it”.

Union directed

The apex court directed the Union to install CCTV cameras and recording equipment in the offices of: (i) Central Bureau of Investigation (CBI) (ii) National Investigation Agency (NIA) (iii) Enforcement Directorate (ED) (iv) Narcotics Control Bureau (NCB) (v) Department of Revenue Intelligence (DRI) (vi) Serious Fraud Investigation Office (SFIO) (vii) Any other agency which carries out interrogations and has the power of arrest.

Police abuse is crime since 1860

Police have neither power nor right to torture the accused or witnesses. In fact, it is a crime since 1860 where police can be punished for such abuse of physical power to perform their duty.

IPC Section 330. Voluntarily causing hurt to extort confession, or to compel restoration of property.—Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person inter­ested in the sufferer to restore or to cause the restoration of any property or valuable security or to satisfy any claim or demand, or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Illustrations

(a) A, a police-officer, tortures Z in order to induce Z to confess that he committed a crime. A is guilty of an offence under this section.

(b) A, a police-officer, tortures B to induce him to point out where certain stolen property is deposited. A is guilty of an offence under this section.

IPC Section 331. Voluntarily causing grievous hurt to extort confession, or to compel restoration of property.—Whoever voluntarily causes grievous hurt for the purpose of extorting from the sufferer or from any person interested in the sufferer any confession or any information which may lead to the detection of an offence or misconduct, or for the purpose of constraining the sufferer or any person interested in the sufferer to restore or to cause the restoration of any property or valuable security, or to satisfy any claim or demand or to give information which may lead to the restoration of any property or valuable security, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

This are serious offences punishable with imprisonment for 7 years or more and fine. It is Cognizable, Bail­able and Triable by Magistrate of the first class and it is non-compoundable. But there are rarely any complaints because, no police generally takes any complaint against their colleagues. Hence any conviction can not be expected.

Can it be accessed through RTI Act?

The Right to Information Act 2005, Section 2(f)  said “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;

Section 2(i)  says “record” includes (a) any document, manuscript and file; (b) any microfilm, microfiche and facsimile copy of a document; (c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and (d) any other material produced by a computer or any other device;

Thus the video recording in the form of CCTV footage is also ‘record’ and ‘information’ under RTI Act, which mandates that it should be made accessible to citizen, subject to other provisions of RTI Act.

However, if the Supreme Court mandates that such a record should be available to victims such as accused, the persons interrogated and the police officers, it will strengthen the transparency as part of system to ‘watch’ the ‘interrogation’ to protect human rights in criminal justice system.

Prof. M. Sridhar Acharyulu
Author is Dean, Professor of law at Mahindra University at Hyderabad and former Central Information Commissioner. He published a number books in English and Telugu.

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