By: Nishant Nagori
‘Panopticism’, one of Foucault’s most intriguing concepts on surveillance is premised upon the Panopticon, a prison where guards are positioned within a central tower to employ surveillance on all the inmates. This creates a conscious sense of ‘permanent visibility’ amongst the ones under surveillance, eventually leading to internalized authority and self-discipline. This automization and decentralization of power was termed as ‘disciplinary power’ by Foucault. Though Panopticon was originally designed for prisons, the underlying concept of permanent surveillance can be deployed at locations which are prone to violence and human rights abuses. Ironically, Indian offices of law enforcement agencies have continuously emerged as sites of egregious violence under the garb of state authority.
The National Campaign against Torture report reveals that approximately 1,731 people died under police/judicial custody in 2019. Further, 60% of those who died in custody in 2019 belonged to poor and marginalized communities such as Dalits, tribals, Muslims, labourers and rag-pickers, among others. Moreover, the disproportionately higher number of people belonging to vulnerable communities as under-trials, compared to their overall population is indicative of the underlying prejudices and bias amongst the police officers and incidental to rising cases of custodial torture. D.K. Basu v. State of West Bengal, one of the landmark judgments surrounding custodial violence described custodial torture as “naked violation of human dignity and degradation that destroys self-esteem of the victim and does not even spare his personality.”
Thus in December 2020, the Apex Court in the case of Paramvir Singh Saini v. Baljit Singh & Ors. attempted to change the status quo. (hereinafter “Paramvir Singh”). Inter alia, the court directed all the States & Union Territories to necessarily install Closed Circuit Television (“CCTV”) cameras across all the police stations or any agency which carries investigation and occupies the power of arrest. It was directed that no area of police stations should remain unmonitored and provided precise location where the CCTV cameras must be installed for surveillance. Any modalities linked to its functioning such as data backup of CCTVs must be ensured by the respective governments who are mandated to create oversight committees for the same at both the state and district level.
How do CCTVs help in abridging custodial violence?
This is indeed a well-intentioned step as CCTV acts as a monitoring tool, responds to potential threat and notifies the operator(s) about the deleterious incidents and actions during and after the occurrence of the incident. An Amnesty International Report of 2010 revealed that CCTVs were successful in reducing misbehavior of cops by 40 percent in Spain.
Further, a 2016 report of Human Rights Watch probed custodial violence and impunity among the police officers. It was observed that the failure of police to follow proper arrest procedures is the foremost reason of increasing assault and torture as these are likely to occur when the suspects are first brought into custody. It is especially hard for the families belonging to marginalized communities to get equitable justice in case of custodial crimes as they often face brutal threats and intimation from the police itself. Moreover, the officers comfortably report such incidents as suicides and death by natural causes, among others. It is also a cumbersome task to hold police accountable in cases of custodial crimes as they are often ‘bound by their ties of brotherhood’ which makes it hard to summon a police officer as witness. However, unlike earlier instances where policemen had to be exonerated for want of direct evidence, CCTVs substantially improves the objectivity and authenticity of evidence during investigation. Thus, installation of CCTVs instills confidence in the minds of litigants to take recourse to judicial mechanism in case of violence.
However, Paramvir Singh is not the first instance of directions for CCTV installation in police stations. In Leonard Xavier Valdaris v. Officer-in-Charge & Ors., the Bombay High Court initiated the judicial discourse around the efficacy of CCTV cameras in abridging custodial violence. It shed light upon the Law Commission of India’s Report No. 239 which expounded upon the mandatory provisions of videography at the time of registration of FIR and crime scenes and ordered State government to install rotating CCTVs across all police stations. The issue of CCTV monitoring while investigation to amass evidence has been discussed before in the cases of Shafique Mohammed v. State of Himachal Pradesh & D.K. Basu v. State of West Bengal. They admitted and ordered the need of CCTV monitoring and creation of oversight committees to periodically study CCTV camera footages and provide reports in case of any untowardly incident. This was mandated especially in stations located in sensitive areas which are prone to human rights abuses. However, the orders passed were not followed either in letter or spirit. The Paramvir case, thus acknowledged the gaps present earlier, and provided precise directions to be followed along with a strict timeline so that these guidelines, unlike earlier don’t go in vain.
Feasibility of these guidelines:
In February 2020, Faizan was allegedly assaulted and illegally detained by the police officers of Jyoti Nagar Police Station. Within hours from his release, he died from injuries and improper medical care. On 23rd March 2021, the Delhi Police in a reply to Delhi High Court ‘conveniently’ apprised that the CCTV cameras in the police station were de-functional on the required date due to some ‘technical fault’ and no tampering was involved therewith. Since the matter is sub-judice, only time will tell the truthfulness of Delhi Police’s claims. However, stories similar to the Faizan case are numerous and raise serious apprehensions regarding the CCTVs practical outcomes. Even though guidelines in Paramvir Singh are comprehensive to a large extent, some loopholes within them can actually withhold fair justice to the victims of custodial violence.
Firstly, mere installation of CCTV footage does not necessarily ensure fairness during investigation. Since the guidelines do not expressly mention and ensure independent investigations, it can result in an inspection by the same police station whose police officers are accused, which might lead into tampering with the evidence. Moreover, even though the guidelines mandate creation of oversight committees, the foremost responsibility to maintain cameras and backup data is rendered upon the Station House Officer (“SHO”). The guidelines, however failed to realize that SHO is often the authority under whose command torture is often manifested.
Secondly, the usage of the term “serious injuries and/or custodial death” is ambiguous as no clear definition of serious injuries has been provided. Additionally, no clarity has been provided whether serious injuries include only physical form of violence or does it involve mental torture as well. Since Indian laws do not count torture as an offence per-se, a seemingly high threshold has been implied by these guidelines for the victims to approach the court for redressal.
Thirdly, various studies indicate that torture is often inflicted by police during the transportation of detainees to police facilities such as police vans or streets. To tackle such issues, New Mexico passed a bill in 2020 mandating law enforcement officers to wear body cameras. Using dash cameras in police vans is also a common practice in the USA and India must follow suit as they have a drastic impact on police behavior towards public.
Conclusion and Way Forward
‘Police’ and ‘public order’ are part of the State List under the 7th Schedule of the Constitution, and since police is a state subject, comprehensive data regarding the number of police stations equipped with CCTVs is not rendered with the Central Government However, Central government is authorized to provide financial assistance for development of state police forces, which is provided under ‘Assistance to States for Modernisation of Police’. In furtherance, the Apex Court on April 6, 2021 directed the Ministry of Home Affairs to allocate budget to central agencies for installing CCTV Cameras. Further, the Court earlier also expressed displeasure regarding the state’s and central agencies’ lukewarm response to its December 2 guidelines and made the issue of installation of CCTVs as a matter of utmost importance. It opined that the lackadaisical approach is preposterous and detrimental to citizens’ rights under Article 21 of the Constitution of India.
Thus, even though the strict guidelines for implementation of CCTV cameras are a positive development, strict enforcement of the same is the pressing priority to tackle the quandary of custodial violence in its truest sense.
[The author is a 3rd year law student at Rajiv Gandhi National University of Law, Punjab]
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