Guarding the guardians

Context: The recent torture and custodial deaths of the father-son duo in Tamil Nadu have highlighted the arbitrary highhandedness of the executives. Implementation of DK Basu judgements can provide solutions. 

The significance of DK Basu judgements: in creating legal principles and techniques to reduce custodial deaths and torture.   

• In the best tradition of Mandamus: The Supreme Court decisions led to procedural, monitoring and coordinating judicial orders. It provides comprehensive coverage if implemented.

• Safeguards against executive highhandedness: It has been recognized that most torture is done before the arrest but the safeguards kick in only after the arrest. Following orders were given:

• Officials must carry name tags and full identification.

• Arrest memo to be prepared to contain all details of time and place of arrest, and to be signed by a respected member of the locality;

• Location of arrest to be intimated to a family member of the arrestee; 

• Inspection memo to be signed by arrestee;

• Significant breach would mean culpable with severe departmental action and additional contempt.

• Provided rights with a remedy: All preventive and punitive measures could go with, and are not alternative to, full civil monetary damage claims for constitutional tort.

• Vital orders of monitoring and ensuring compliance:

• Each state and UT, to file information in pre-designed charts for simple comparison and collation.
• Directed State Human Rights Commission to set up a special committee to monitor and report to the SC; where SHRC did not exist, Chief Justice of High Court was employed.
• Magisterial inquiries to be completed in 4 months as they have lackadaisical (carelessly lazy) potent powers under CrPC.
• Stern direction to setup SHRC in every state given in 2015 under Section 30 of the NHRC Act.
• All prisons must have CCTV cameras within one year.
• Directing surprise checks by non-official visitors and mandated prosecution/departmental actions.

Challenges to the spirit of DK Basu judgements:

• Failure in last-mile implementation: The intra-departmental solidarity with an errant policeman and delayed and prejudiced prosecution are testimony of failed execution of SC orders.

• Tax of Democracy-too high: difficult to implement regulations in India due to the dilatory polity

• The 1985 Law Commission report: directed the enactment of section 114-B into Evidence Act, to presume culpability of police in case of custodial deaths, has still not become a law.
• Still have deplorable rates of initiating prosecutions against accused police officers; actual convictions are non-existent.

Way Forward: 

• Monitoring and implementation of DK Basu recommendations by independent and balanced civil society individuals at each level, under court supervision, is sufficient to minimize the scourge.