Can Constitutional Courts Really Not Do Much About Police Brutality?

By Abhinav Sekhri


India’s constitutional courts have won deserving acclaim for intervening to save forests, put curbs on pollution, fearlessly address corruption in government, usher in prison reforms, drive governments to pass anti-lynching laws, and strike down patently unconstitutional laws and practices to enable the expression of individual freedom. So to read a news article that says “courts can’t do much” is what a bench of the Indian Supreme Court reportedly observed in response to a request, pleading that it takes notice of the widespread police brutality that was witnessed in Delhi this past weekend, came as a rude shock.

The gamut of examples that I began with can be multiplied almost endlessly, and the further that list grows the more inane the ultimate relief becomes. What must be flagged though is that a number of those remarkable interventions also include efforts by the same Supreme Court to help usher in police reforms, leading a foreign scholar to comment that the Supreme Court has been the only agent of change in this arena out of all the branches of State, with its efforts to curtail police brutality? This glowing praise came while referring to landmark decisions of the Supreme Court such as Joginder Kumar and D.K. Basu, which took steps to curtail the vast discretion that police officers have on using their coercive powers. If we shift the focus to High Courts as well, we find that the Delhi High Court has been building upon these foundations through orders such as those passed in Amandeep Johar and Court on its Own Motion, which go ahead and prescribe detailed guidelines that police must comply with before effecting arrests.

So, let’s be very clear: Indian constitutional courts can do a lot about police brutality and have already been doing a fair bit if they choose to. In those multiple cases mentioned above, the judiciary chose to do something. Does that mean that the orders in Joginder Kumar or D.K. Basu are unwaveringly obeyed by the police forces? Of course not. But the very pronouncement of such an order empowers a citizen because it confers upon her the power to invoke an authority against state oppression that she did not have before that moment. A Court order is, therefore, as much an act of faith as it is an act of governance. Today, when petitioners knocked on the two Courts’ doors seeking that they intervene after a day of maddening violence, the Justices spoke and expressed sympathy, but they chose not to empower citizens and restore their faith in the law, at a time when this balm was sorely needed.

Surely when the courts choose to face the facts, in due course if not urgently, they will remember that a lot can be done about police brutality. But rather than simply go for low-hanging fruit by passing, say, another judgment regulating arrests and preaching reporting requirements to curb flouting of the rules, it’s time to take things to the next level and really face the monsters lurking within our criminal justice system. And trust me, there are several such Frankenstein’s in the system — principles that are birthed by judicial orders which have ended up having a life of their own, singularly destroying the very fabric of individual freedom and personal liberty that a constitutional order aspires to secure.

The first of these monsters is the lip-service paid to the idea of legal assistance within the criminal justice system. To prevent a lawyer-police nexus, the Supreme Court in Nandini Satpathy went ahead and spoke harshly against the idea of permitting a lawyer within the confines of a police station. The 2008 amendments to the Criminal Procedure Code gave accused persons the right to request for a lawyer during questioning, but this was still made subject to police consent [Section 41-D Cr.P.C.].

When police violence is so deeply entrenched in society, how does it make sense to have a law that, as a default position, leaves individuals at the mercy of police officers and restricts their ability to seek legal assistance? Besides the innumerable false confessions, what such a regime contributes to is situations like the night of December 15 when, after all the horrible violence, lawyers were simply refused entry into the police stations which thus prevented from even determining who had been detained, let alone offer them legal assistance.

The second of these monsters is the very idea that the individual accused or suspect is equal in her dealings with the police. Let’s unpack this a bit. It is stating the obvious to say that the police are the most visible agents of state power, and the very sight of an angry policeman can send a person shaking in her boots. This unique ability to inspire fear is why the law treats both, statements by witnesses and confessions by suspects / accused persons, with immense skepticism when made to police officers [Section 161 Cr.P.C.; Section 25 IEA].

But at the same time, our legal system permits courts to rely upon these statements and confessions where they consequently lead to the recovery of any material [Section 27, IEA]. The incentive this regime creates for “planting” evidence and “making” persons sing the police’s tune is obvious, especially when coupled with the fact that within the confines of a police station, a person is entirely at the mercy of the police officer. But here’s the thing: Rather than carry on the legal logic of skepticism to which confessions are subjected and extend it to interrogations at large, the law instead reverses the logic to hold that in the context of “mere questioning” by the police the law will not even remotely suggest that a person could have been coerced into giving a statement. Instead, it considers this an exchange between equals. The law thus willingly ignores the hours of waiting, the aggressive posturing and tone, the repeated badgering, and all coercion except that which leaves visible marks on the person, to sustain a fiction of voluntariness around the statement by an accused person, which is designed to sanitize our doubts about the purportedly unbelievable recoveries of material that the police might secure on the strength of the statement. And all this is done under the gaze of the Indian Constitution that secures a fundamental right against self-incrimination.

In a way, isn’t the same logic being perpetuated by the Supreme Court right now, when it asks both sides to maintain peace before it takes up petitions that are seeking intervention to check violence? Is it not insidious to even remotely suggest equality between the police who are tasked with enforcing the state’s monopoly of violence with a band of students, and selectively singling out the latter by making them responsible for peace and suggesting that they can’t bully the court? Bully how? By the strength of being beaten mercilessly by countless lathi blows and responding by pelting stones in the face of tear gas shells? By being singled out and held responsible for damage to public property that occurred and was arguably the fallout of violent madness all around?

To repeat, then. Our constitutional courts can do a lot when it comes to police brutality, much like many other problematic areas of life in India. Besides the tangible change it brings to society, these acts of intervention carry enormous symbolic value, reinforcing a belief in the rule of law in times when there is very little reason for keeping the faith. But at the end of the day, all judicial intervention is an expression of choice. Thus, unlike other days when to hear a matter of “national importance” the Supreme Court’s doors were open even on a holiday without any petition being filed, today, courts chose to refuse an urgent hearing of pleas made by hundreds who were hoping for a restoration of faith after facing a night of horror, even though a lot could have been done.

[The author is a criminal lawyer based in Delhi. This post was first published on his blog ‘The Proof of Guilt’.]

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