CJI for special panels to probe ‘atrocities’

• IAS NEXT, Lucknow
• 04, Oct 2021

Chief Justice of India has mooted to form a Panel headed by High Court Chief Justice to probe any complaint received from Common man of “atrocities” committed by the bureaucracy, especially police officers.

Need for Such a Panel

• Police have been in the spotlight for committing serious crimes:
  • Gorakhpur (UP): The police officers in Gorakhpur in Uttar Pradesh have been accused of causing the death of a businessman during a raid in a hotel.
  • Thoothukudi (Tamil Nadu): Nine policemen were involved in the custodial deaths of the father-son duo P. Jayaraj and J. Benicks for violating Covid19 Curfew in June last year.
  • Agartala (Tripura): DM Shailesh Kumar Yadav was recorded on video physically manhandling citizens during the lockdown and was later suspended by the state government
• The politicization of Bureaucracy: CJI made the oral observation that Bureaucrats act with impunity with one government but have to “payback with interest” when there is a regime change
• ‘Targets of political vendetta’: Bureaucrats and especially Police officers find themselves being targeted by the new government. This impacts their efficiency, trust, and impartiality in the system.
  • G. ADG of Police Gurjinder Pal Singh in Chhattisgarh had sought protection from arrest in Supreme Court in various criminal cases, including sedition, extortion, and criminal intimidation, arraigned against him by the current government.

Atrocities by Police have emerged as human rights concern as it:

• Violates Fundamental Rights of citizen:
  • Article 21: Custodial violence is against the fundamental right to life and dignity.
  • Article 19: Use of Section 506 of IPC to get non-bailable remand for the accused is against the Fundamental Right to Freedom.
  • Article 20(3): Adopting third-degree tortures and methods to extract the information from the accused is in clear violation of Article 20 (3) of the Constitution of India.
  • Article 22: Right to counselis also a fundamental right under Article 22(1) of the Indian constitution, but custodial violence violates it.
• Violates Article 5 of the Universal Declaration of Human Rights: No one shall be subjected to torture or cruel, inhuman, or degrading treatment or punishment.
• Violates ‘Rule of Law’: 60% of all arrests made by police were “unnecessary” (National Police Commission (3rd Report))
• Violates the maxim “Salus Populi Est Suprema Lex” i.e. the safety of the people is the supreme law.

Challenges in curbing the misuse of power by Bureaucrats:

• India has not criminalized custodial violence: India also does not have an anti-torture legislation
• Non-implementation of SC Prakash Singh case (2006) order: Also, Recommendations of the 2nd ARC and the Supreme Court for constituting independent complaint authority to inquire into the cases of police misconduct have not been implemented by most of the States.
• Police force lacks accountability and impunity: Only the executive can sue a police officer and any inquiry against the officer need prior government approval.
• Perception of quick justice: 80% of police personal believe the use of violence by them is justified while 50% of citizens also believe so (“Status of Policing in India Report, 2019” by Common Cause)
• Underfunded, under-trained and understaffed Police force: Even the money under the Modernization of Police Forces (MPF) Scheme have not been fully utilized (Bureau of Police Reforms and Development (BPR&D) data)
  • This leads to undue pressure on police to solve the case without having the requisite resources to do it.
  • Nearly 12% of police personnel never receive human rights training (Common Cause and CSDS-Lokniti, report)

Measures to curb misuse of power by Bureaucrats:

• Law commission report implementation:
  • 273^rd report: those accused of committing custodial torture – be it policemen, paramilitary and military personnel – should be criminally prosecuted instead of facing mere administrative action.
• Legal Measures:
  • Section 197 of CrPC should be amended: This will ensure that prosecutors do not need the permission of the government before pursuing charges against police in cases such as arbitrary detention, extrajudicial killings, torture, and other criminal acts.
• Administrative Measures:
  • DK Basu judgment (1987) guidelines of SC should be strictly implemented: E.g. notifying the next of kin of the arrested person, medical examination of the accused was made mandatory, preparing memo at the time of arrest in front of a witness, etc.
• Judicial measures: Magistrate’s Role: magistrates must prevent overreach of police powers by inspecting arrest-related documents and ensuring the wellbeing of suspects by directly questioning them.
• Monitoring and implementation of DK Basu by independent and balanced civil society individuals at each level, under court supervision, will help in minimizing it.
• Adequate training to the police force: Training on modern, non-coercive techniques for suspect and witness interviewing and questioning as well as on respecting human rights aspects.
  • CCTVs inside police stations, use of Body cameras (as is done in the U.S. and the U.K.) can ensure police restraint.