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 reporting that a bench of the Indian Supreme Court observed that "courts can't do much" in response to a request that it take notice of the widespread police brutality 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 longer that list grows the more inane the ultimate relief becomes. What must be flagged, though, is that a number of remarkable interventions also include efforts by the same Supreme Court to help usher in police reforms to curtail police brutality, leading a foreign scholar to comment that the Supreme Court has been the only agent of change in this arena among all branches of State. This glowing praise came while referring to landmark decisions of the Supreme Court in 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, we find that the Delhi High Court has been building on these foundations through orders such as those passed in Amandeep Johar and Court on its Own Motion, which 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, when they choose to. In the 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 right 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 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 the flouting of 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 Frankensteins 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 prevented any determination of who had been detained, let alone the opportunity to offer legal assistance.
The second of these monsters is the very idea that the individual accused or suspect is an 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. This is designed to sanitise our doubts about the purportedly unbelievable recoveries of material that the police might secure on the strength of the statement. All this is done under the gaze of the Indian Constitution that secures a fundamental right against self-incrimination.
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. This is designed to sanitise our doubts about the purportedly unbelievable recoveries of material that the police might secure on the strength of the statement. 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 being 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.
POST SCRIPT: After the Supreme Court refused any urgent hearing in the matter and indicated that the High Court should be approached first, several petitions came to be filed before the Delhi High Court in relation to incidents surrounding the alleged police violence suffered by students. After hearing the arguments for several hours in a packed courtroom, the Delhi High Court today refused to grant any of the interim reliefs sought by the Petitioners. This included reliefs such as appointing an independent fact-finding commission, protecting students against arrest, passing orders to preserve CCTV footage, and providing funds for students to foot their medical bills after being brutally beaten up by persons wearing uniform. On top of which it fixed the next date of hearing in February 2020.
Compare this with what happened outside Tis Hazari Courts in Delhi at the start of November, 2019. After heated arguments between some lawyers and policemen, the scuffle became violent and led to destruction of public property (burning of a police vehicle no less) and police officers opening fire on some advocates. The very next day, on a court holiday, the Delhi High Court entertained a petition that sought orders to protect lawyers from any arrests etc. by police, and also for appointing an independent commission to inquire into the incident. The requests were granted. In spite of this there continued to be reported incidents of sporadic violence by lawyers / people dressed as lawyers across the district courts of Delhi, where the victims of this violence were often police officials but also litigants. There were no observations rebuking the lawyers or asking them to stop the rioting before courts took any actions. In fact, the Court refused government requests to modify the initial orders granting protection from arrests.
Justice is deemed to have been done in both cases.
POST SCRIPT: After the Supreme Court refused any urgent hearing in the matter and indicated that the High Court should be approached first, several petitions came to be filed before the Delhi High Court in relation to incidents surrounding the alleged police violence suffered by students. After hearing the arguments for several hours in a packed courtroom, the Delhi High Court today refused to grant any of the interim reliefs sought by the Petitioners. This included reliefs such as appointing an independent fact-finding commission, protecting students against arrest, passing orders to preserve CCTV footage, and providing funds for students to foot their medical bills after being brutally beaten up by persons wearing uniform. On top of which it fixed the next date of hearing in February 2020.
Compare this with what happened outside Tis Hazari Courts in Delhi at the start of November, 2019. After heated arguments between some lawyers and policemen, the scuffle became violent and led to destruction of public property (burning of a police vehicle no less) and police officers opening fire on some advocates. The very next day, on a court holiday, the Delhi High Court entertained a petition that sought orders to protect lawyers from any arrests etc. by police, and also for appointing an independent commission to inquire into the incident. The requests were granted. In spite of this there continued to be reported incidents of sporadic violence by lawyers / people dressed as lawyers across the district courts of Delhi, where the victims of this violence were often police officials but also litigants. There were no observations rebuking the lawyers or asking them to stop the rioting before courts took any actions. In fact, the Court refused government requests to modify the initial orders granting protection from arrests.
Justice is deemed to have been done in both cases.
[The post was amended on 19.12.2019 to add the post script]
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