Comprehensive reforms, not just CCTVs, can end custodial torture

The realities of torture and its prosecution in India would temper our expectations from this one development. The Supreme Court needs to ensure robust implementation of its order and simultaneously plug the gaps so that incidents of torture are curtailed.

In a bid to curb torture, a three-judge bench of the Supreme Court recently mandated that CCTV cameras be installed in police stations and offices of other investigative agencies. Though a significant step to curtail custodial torture at these sites, it can have a meaningful impact only if coupled with long-pending reforms to end impunity for torture and a change in the culture of police violence.

While the judgment has been assigned a “landmark” status, it is not the first time that courts have called for the deployment of CCTVs. Previous decisions with similar recommendations have been poorly implemented, evidenced by reports of installation of defunct cameras and exaggerated claims of authorities about the number of cameras installed.

It is, however, important to note that the present decision shows a marked difference than the earlier ones in its approach. It shows more care by listing out areas of police stations where cameras must be installed to ensure that there are no blind spots. It asks for oversight committees to be set up to monitor the functioning of the cameras. It also specifies that the cameras must be equipped with night vision and be able to record audio and visual footage. The recordings will have to be preserved for at least 12 months.

Though the decision acknowledges the right of the victims to secure the footage, there is little clarity on how this translates into practice. Even if the decision is followed in letter and spirit, there are a host of other issues that come in the way of fixing criminal responsibility on perpetrators of custodial violence.

Since torture is not recognised as an offence per se under Indian law, the judgment’s reference to the use of force resulting in “serious injuries and/or custodial deaths” unwittingly creates a high threshold for what amounts to torture. It fails to acknowledge the existence of forms of physical and psychological torture that leave behind no marks on the body.

Availability of CCTV footage and the setting up of human rights courts do not address concerns about the fairness of investigations. The absence of statutory guidelines mandating independent investigation results in police officers from the same police station investigating the crime, providing ample opportunities to them for suppressing evidence.

Alteration of a video to conceal an object, an event or change the meaning conveyed by the video is a well-documented reality in the United States. Indian courts have also expressed their apprehension of police tampering with CCTV footage. The judgment does not assuage these concerns. In fact, it vests the responsibility for the working and maintenance of the cameras with the station house officers under whose command torture often takes place.

Requiring prior sanction from the government operates as the foremost hurdle in initiating criminal complaints. It is not unknown for the courts to grant protection while holding that the atrocities were “done under the colour of official duty”. This absolves many perpetrators of any responsibility.

Between 2005-2018, with respect to 1,200 deaths in police custody, 593 cases were registered, 186 police personnel were charge-sheeted, and only seven were convicted (National Crime Records Bureau). Evidentiary concerns frequently arise since often the only witnesses are the victims themselves. The Supreme Court (1995) has noted that police officials remain silent to protect their colleagues as they are “bound by brotherhood” and held that courts should not insist on direct or ocular evidence in these cases. This position is rarely applied and many cases result in acquittal for want of evidence. Installation of cameras may help in collecting incriminating evidence in the rare instances where police are brazen enough to torture under surveillance.

In the absence of a definition, it is common for courts to charge responsible personnel with less serious offences. Those held responsible for custodial deaths are often not convicted for murder, but for offences that are comparatively less grave such as grievous hurt.

Besides, CCTVs will monitor only one of many sites where torture happens. Multiple works on torture in India suggest that torture is often not inflicted in police stations, but isolated areas or police vehicles. Victims are illegally detained and tortured in undisclosed locations before officially arrested and brought to the police station. Cameras in police stations will not foreclose the possibility of torture in other locations. They may just shift torture to other sites, away from the scrutiny of the cameras. Further, this does not address other forms of equally pervasive violence such as extra-judicial killings and summary executions in India’s conflict zones.

Monitoring the police through CCTVs is an important step towards combating torture but its effectiveness is contingent on broader reforms. The realities of torture and its prosecution in India would temper our expectations from this one development. The Supreme Court needs to ensure robust implementation of its order and simultaneously plug the gaps so that incidents of torture are curtailed.

This article first appeared in the print edition of The Indian Express on December 11, 2020 under the title “The cruelty camera can’t see.” The writers are with Project 39A at the National Law University, Delhi. The article can be accessed here.