The Role of Criminal Justice System in Police Reforms

(Based on a talk with trainee judicial officers at

Uttarakhand Judicial and Legal Academy (UJALA) on 14 th
March 2013.)
The need to reform the police in India started being felt ever
since the inception of state police in the last decade of eighteenth
century, itself an effort to mitigate the excesses of darogahs
working for and paid by zamindars. Complaints of torture by the
state police (working under Collectors) for realization of land
revenues led to the setting up of a Commission for the
Investigation

of

Alleged

Cases

of

Torture

in

the

Madras

Presidency, and its two-volume report in 1855 unveiled the reality

of policing as based on

torture and extraction of confessions.

The change from Company Raj to British Raj saw the promulgation
of a host of laws, including the Police Act, the Criminal Procedure
Code, the Evidence Act, and various State Police Regulations
which sought to give a human rights orientation to policing by
constraining their powers of arrest and use of force and by
limiting the uses to which their records could be put to
substantiate charges before a court of law, However the laws
remained in the books and could not materially affect the
practice, except in terms of presentation styles, as was concluded
by the Police Commission of 1902. Freedom from colonial rule did
not mean freedom from police atrocities, which continued
unabated, constraining Justice Mulla to call the Indian Police a
lawless group whose record of crime for surpasses that of any
other group in the country. The National Police Commission

agreed with the view of the 1902 Commission about police

practices of extortion and oppression, their unnecessary
severity, harassment of people, and said that the people dread
getting involved with it (police) in any capacity. The legal scholar
Upendra Baxi has said that custodial violence or torture is an
integral part of police operation in India, and the recent spate of
arrest and prosecution of police officers of all ranks on charges of
fake encounter, torture in custody and illegal detentions indicates
that the need for reforms despite suggestions made by a plethora
of

Commission

and

Committees,

and

their

half-hearted

implementation, remains as pressing as ever.

As this historical account shows, the discourse on police
reform is not so much about police effectiveness or police
efficiency as it is about police conduct. The call for reforming the
police has emanated not because of their failure to control crime,
or detect crime, but on account of their unlawful, unscrupulous,
brutal and deceitful behaviour. The irony is that police officers of
all ranks believe, and have persuaded the politicians, the
bureaucrats, the media, and now increasingly the judiciary, to
believe, that police brutality is the price we pay for crime control,
that unlawful policing is the only effective crime control tool, that
detection of unknown offender cases of street crimes like theft,
robbery, burglary is essential if society is to be saved from
predatory criminals, and detection is possible only if suspects are
subjected to torture so that they might come out with the truth.
This is the main reason for persistence of police misconduct and

its imperviousness to attempts at police reform; the very

institutions which were expected to monitor police practices, and
put down unlawful behaviour, have themselves become complicit
in them, in the mistaken belief that crime will overwhelm us if a
few unknown offender cases go undetected because the police
are not allowed unlawful means. This is why even otherwise
honest police officers allow, nay, encourage their subordinates to
fabricate

evidence,

extort

confession,

and

make

illegal

detentions.
In the absence of quick convictions by the courts, police
arrest, interrogation and pre-trial detention (by refusal of bail) is
seen as the only punishment that culprits would get, and the due
process, regarding sufficient prima-facie evidence before arrest,
right to remain silent and consult an advocate, and bail as rule,
jail exception is given a go by. This results in grave miscarriages
of justice, only some of which are acknowledged later when
suspects are finally acquitted for lack of evidence, but only after
they have spent months or years together in prison as undertrials.
Advanced democratic countries like the US and the UK got
rid of routine use of third degree when the courts started rejecting
evidence which howsoever compelling was obtained by unlawful
means. The so-called exclusionary principle laid down by US
Supreme Court allowed judges to throw out cases whenever it
appeared that the suspect accused was subject to third degree or

was not afforded the protections prescribed by the law and the
constitution.
In the US, Wickersham Commission (1930s) had found
rampant use of third degree to extort confession despite the Fifth
Amendment of the US Constitution (1791) which forbade selfincrimination. The Miranda Ruling (1966) tried to extend the right
to remain silent during police interrogation by mandatory
information to suspect on this right, but by allowing for suspects
waiver of this right at the same time the courts allowed the police
to persuade the suspect to talk, and it has been argued that
Miranda Ruling has not really done much to safeguard a citizens
right to remain silent. However the Fifth Amendment and the
Miranda Ruling did allow this court to throw out confessions which
were blatantly extorted, especially through physical third degree,
and this led to the end of routine use of physical torture by police.
The United Kingdom, with its common law system based on
proof of guilt began with the requirement of sufficient evidence to
be assessed by a magistrate before police coercive powers could
be used through warrants of arrest or search, but in practice the
police would detain suspects without formal arrest, when they
were supposed to be helping police with their enquiries. The
Police and Criminal Evidence (PACE) Act promulgated in the
1980s sought to regularize and control this and similar other de
facto police tactics. The restrictions included requirements to tell
suspects why they are being arrested or searched, and to record
the transaction, but these only altered the way officers accounted

for the action taken by them, and not the way they actually acted.
Thus while PACE allowed detention only if charge-sheet was to be
laid, or where it was necessary to secure extra evidence, in
practice detention is hardly ever refused, and is continued for a
long as the investigating officers wish. Another, and more
important, control over police was the requirement of providing
free legal advice to all suspects who demand it, but again the only
proof that the suspect was told about his rights in this regard is
the custody record prepared by the police themselves, and police
lying about it is often a possibility. Moreover, the free legal service
being provided often takes a non-adversarial stance towards the
police, and routinely allow police to browbeat the suspect while
interrogating him. The right of silence of the suspect is another
important feature of PACE, but it has been found that few
suspects exercise it, and it too has been diluted by Criminal
Justice and Public Order Act 1994 by allowing courts to draw an
adverse inference if defense relies on a fact which was not
disclosed to the police at the time of interrogation. Interrogation
has been safeguarded for suspects by stipulating provision of
proper heating, ventilation, breaks, access to solicitors and others
etc., but on the other hand the police are allowed to persist with
interrogation even when the suspect invokes his right of silence.
The reality is that detention is experienced as coercive, the police
station environment is deliberately denuded of psychological
supports, and spending the night in the cell is a sufficient fear to
induce suspects to speak in the hope of release, and make
incriminating statements by answering leading questions put by

the police. Still, extreme methods like torture and violence are
now rare since the interrogations are tape recorded.
In India, the criminal justice system has not yet been able to
make a dent on police malpractices like third degree, fabrication
of evidence, preparation of false records and brutality generally.
It is not due to any dearth of laws and rules on the subject. In
fact, even during colonial times, Indian laws had been quite ahead
of their times in respect of constraining police coercive powers.
Thus, confession before a police officer, even if voluntary, was
inadmissible. Even statements of witnesses recorded by the police
were not relied upon during trial except in a limited manner, and
that too in favor of the accused. Provisions for asking an arrested
person if he was ill-treated by police, and his immediate medical
examination if he affirmed it, had been made. Torture or promise
of reward for inducing confession was made an offence. After
independence, the Indian Constitution included a number of
safeguards in the chapter on fundamental rights; e.g. the rights of
arrested person to consult and be defended by a lawyer of his
choice, and to be put up before a court promptly.
Article 20 gives an accused protection against testimonial
compulsion, which extends to police interrogation and thus
enshrines the right of silence. The Supreme Court of India has
also from time to time prescribed guidelines regarding arrest
(Joginder Kumar case-1994, D K Basus case-1997) to ensure that
it is exercised reasonably, the dignity of the arrested person
protected, use of force to overcome resistance minimized, use of

handcuffs/leg chain avoided, kin or friend informed about place of

detention, and the arrested person informed about his right to
consult a lawyer of his choice or avail free legal aid.
In actual practice these requirements are observed more in
the beach. NHRC Guidelines Regarding Arrest
Most of these guidelines have now been incorporated in the
Criminal Procedure Code and are thus clearly justiciable. And yet
unknown offender cases like burglary, murder (disclosed through
finding of a dead body), and terrorist incidents are still detected
through confessions made by persons arrested on suspicion
(based on source information) or arrested in some other offence
(e.g. possession of contraband). As noted before confessions
before police are inadmissible and they have to be recorded by a
Magistrate, but most of the confessions which underlie police
detections are never got recorded by a magistrate, as they are
generally extorted by police through physical or mental torture or
harassment. When the arrested person is produced before the
court, the only evidence against him is the confession recorded
by the police, and yet he is remanded to custody (even police
custody) on the basis of this inadmissible piece of evidence. The
police is not even

asked to get the confession recorded by a

magistrate as ordained in law. In fact no effort is made to

ascertain whether the legal provisions mentioned above have
been complied with or not, especially those relating to testimonial
compulsion and consultation with counsel. The accused is
remanded to custody often without any legal representation,

solely on the basis of assertions made by public prosecutor and

the records prepared by the police. Later, bail is denied to the
accused, again not because of any additional evidence against
him, but because the police oppose the bail. Several other
persons are arrested on the basis of the earlier confession, and
they in turn confess

before the police (again, not before a

magistrate), and further confirm the earlier confession. During

trial of course the inadmissibility of the prosecution evidence is
recognized, and rejected, and the accused acquitted, but not
before they have already spent months or years in prison. This is
the usual modus operandi of the police (including the CBI and the
NIA) in so called cracking of unknown offender cases.
The neglect of provisions of procedural justice enshrined in
the Indian Constitution and the laws often results in miscarriage
of justice, although only a few cases come to light, as a result of
public protest, media exposure, or merely a chance-happening.
Thus, the innocence of the persons arrested by Anti- terrorist
squad
of

2006

(ATS) of Maharashtra Police in the Malegaon bomb-blast

could

be

established

only

because

the

National

Investigation Agency investigating the Samjhauta Express blast of

-2007 arrested a suspect in November 2010 who confessed to the
complicity of his group in the Malegaon blast of 2006.
found the confessions recorded by the ATS

The NIA

to have been

extorted or fabricated. However, it was on the basis of such

confessions and recoveries based on them that the accused

had been denied bail and had to spend more than 5 years
languishing in prisons.
Similarly, the Special Task Force of UP Police had arrested
two persons outside the Barabanki Railway Station in December,
2007 and claimed to have seized explosives from them and
obtained their confessions of involvement in Gorakhpur serial
blast of May, 2007. Public protest over these arrests led to setting
up of a judicial commission which found the arrest, recovery and
confessions to be false and fabricated, and yet the two remain in
jail ever since (one of them died in May, 2013 while being taken
to jail). The State Governments efforts to withdraw the false cases
against them have been stayed by the High Court.
The Delhi Police arrest of Liyaqat Ali shah from Indo Nepal
border on charge of planning a suicide attack in Delhi, and the
ammunition recovered later at his instance could be questioned
only because the Jammu & Kashmir Police was already awaiting
his surrender, and could insist on a change in investigation which
was handed over to the NIA, and Shah could be released on bail
as the NIA did not oppose it.
The miscarriage of justice, in the sense of unjustified arrest
and incarceration of suspects, could came to light in these cases
because of a chance happening or a public protest, or protest by
another police agency; the criminal justice system itself had been
unable to detect them for early intervention. A similar incapacity
to monitor police use of coercive powers is seen in run of the mill
criminal cases, especially the unknown offender cases like

burglary and robbery, or discovery of violent deaths, in which

arrests by police are accepted on the basis of police narrative
which is largely made up of information by source and confession
of the arrested person. The subsequent remand and bail hearings
similarly keep on depending on the police narrative, and do not
try to elicit whether sufficient prima-facie evidence which is
independent of police version (e.g. recoveries witnessed by
independent witnesses or confessions and statements recorded
by a Magistrate) is available or not. As pointed out earlier, only
some of the egregious cases of unjust imprisonment come to light
although the lack of application of judicial mind at the time of
considering bail and remand application is rampant. Thus 3
persons, one of whom was a juvenile at the time of incident, were
kept behind bars for 10 years, and it was only after the
murdered person returned from his place of hiding that the
Supreme Court released them on bail (the appeal against their
conviction by Session Court and the High Court is still pending). It
was only the good fortune of the convicts that the victim had
decided to come back.
Even

in

cases in which

manifest

injustice has been

highlighted, the imperviousness of the criminal justice system

makes any timely relief difficult. The case of Dr. Binayak Sen, who
could be released on bail only after two years despite appeal by a
host of Nobel Laureates, and in editorials in prominent national
and international newspapers, magazine and journals is a case in
point.

Dr. Binayak Sen, who was arrested in 2007 on charge of

acting as a courier of a Maoist prisoner on the basis of recovery
from one Piyush Guha, who was earlier arrested by the police, of
three letters purportedly written by the jailed Maoist Narayan
Sanyal, which he confessed before police to have been given by
Dr Sen. This was sufficient to keep Dr Sen in prison before he was
allowed bail by the Supreme court in 2009 (The Supreme Court
itself had rejected bail in 2007.) The case against him ended in
conviction and life imprisonment, and again he was denied bail
during pendency of appeal till the Supreme Court came to his
rescue.
As pointed out earlier, these cases reveal only the tip of the
iceberg of unjustified incarceration of accused and suspects in
India. While the Supreme Court has been lamenting the problem
of overcrowding in prisons and mandating release of under trial
prisoners on bail in certain cases, it has also denied bail in a
number of high-profile case, like the Arushi murder case (to Nupur
Talwar, even though CBI did not find prosecutable evidence
against her), or the 2G trial case (where the Supreme Court itself
later affirmed the principle of bail as rule, jail as exception while
releasing five corporate executives on trial). This ambivalent
attitude

towards

pre-trial

incarceration

is

reflected

in

pronouncements like public sentiments no basis to deny bail,

deprivation of liberty must be considered a punishment, bail is
the rule and jail an exception, on the one hand, and the actual
denial of bail for years together, on the other. Similar ambivalence

is seen in attitude to torture. While narco-analysis without consent

is dubbed illegal and as bad as torture, as going against the
right against self-incrimination, the confessions recorded by
police are not scrutinized for their voluntariness during pre-trial
stage and considered a sufficient basis for denial of bail, or for
remanding the accused to police remand. In some cases, the
infirmities in evidence are brought out by the courts themselves,
but only at the time of acquittal, or in appeal against conviction
as in Haren Pandya murder case when the Gujarat High Court
observed,while

acquitting

all

the

12

accused,:

..The

investigating officers concerned ought to be held accountable for

their ineptitude resulting into injustice, huge harassment of many
persons concerned However the Court did not hold the judicial
officers to account for their contribution in the huge harassment
in terms of denial of bail, and later conviction, of the

accused

persons on the basis of evidence presented by CBI which the

Court found incredible.
This disjunct between the lofty concept of innocent till
proven guilty and the actual practice of long pre-trial detentions
on the basis of inadmissible or untrustworthy evidence stems
primarily from a belief, amongst all stakeholders, that while
convictions are difficult to achieve, it is the criminal process itself
that should be a punishment in order to deter crime and terror.
This results in an excessive use of remand detention by denying
bail. Imprisonment based only on a hunch about guilt or because
the police hold someone guilty, or because they apprehend

tampering with evidence or witnesses, becomes the norm. Thus

frustration with slow legal process of trial has in practice
undermined civil liberties and the due process itself. An indication
of this hiatus between law and practice is the history of the
amendment made in provisions of arrest by CrPC Amendment Act
2008 which was initially opposed on the ground that diluting
powers of arrest of a police officer (the amendment provided for
arrest only when necessary, and with reason) will fail to deter
criminals (thus betraying the underlying notion of arrest as
punishment). In fact, the amendment was opposed by lawyers
also, but more because many of them made their living out of bail
applications and fewer arrests would mean reduced opportunities
for them.
While the Act was notified with effect from 31 December
2009, the section amending the powers of arrest could be notified
only after a year on 1st November 2010, and a further provision
had to be added requiring the police officer to give reasons for not
making an arrest, and to issue notice in all such cases. It is a
moot point, however, whether the magistrates are insisting on
compliance of these provisions when an arrested person is put up
before them. In fact, the Supreme Court guidelines on arrest
issued in D K Basu case in 1996, especially regarding immediate
information of arrest to friend and magistrate and permission to
consult lawyer during interrogation, are seldom followed, even
after these were given legal shape in 2005, and the magistrate

required to satisfy himself that these provisions relating to rights

of the arrested person are complied with.
The National Human Rights Commission has in a letter to
Chief Justices of all the High Courts in India stressed the need to
emphasize on the magistrates that remand proceedings are not
matters of routine but a serious exercise affecting the liberty of
the accused, and therefore they are expected to ascertain
whether or not there are prima-facie reasons for authorizing
further detention.
It is high time that the criminal justice system was brought in
tune with the law of the land in the matter of arrest and remand
of suspects and accused persons. This would require first and
foremost a change in the attitude of judicial officers who should
look at their role more as a dispenser of justice and protector of
human rights than as a crime-fighter. Once they start insisting on
requirement of due process in the matter of arrest and
interrogation by police (especially access to legal aid, freely
provided

if

needed),

and

the

availability

independent evidence for authorising

of

prima-facie

further detention, the

misuse of police powers in making unreasonable arrests, workingout cases through extorted confessions, and illegal detentions will
be exposed at a much earlier stage, and the resulting release of
arrested persons would discourage the police from adopting these
unlawful tactics; at the moment the police know that the arrested
person will remain behind bars for a sufficiently long time before
the paucity of evidence is found out by the courts. The

miscarriages of justice in terms of long pre-trial detentions can be

minimized only by paying as much attention to pre-trial judicial
proceedings as to the trial itself.
As in advanced countries where third degree treatment of
accused became minimal once courts began to throw out, via the
Exclusionary

Principle,

evidence

obtained

through

unlawful

means, the police in India shall have to reform their methods once
they find that their outputs are shown up as tainted, and rejected
by the system. On the other hand, a misperception about the role
of criminal justice system as punishing criminals rather than
producing justice will make the courts tolerate or even participate
in the injustices initiated by police, turning them into capricious
entities which are often punitive, but sometimes rights-respecting,
usually after the lapse of a long period of harassment and
incarceration of citizens. Such an approach sends a signal to the
citizens that the police can inflict punishment themselves merely
by arresting the accused person and subjecting him to torture,
and putting up a contrived narrative before the courts which will
accept their version at least for denying him bail and keeping him
behind bars for long. This is the reason behind the clamour for
immediate arrest merely because an allegation has been made.By
treating remand proceedings as an important stage for deciding
who will lose his liberty, for how long, and on whether police
arrest, search, seizure and interrogation have been lawful, the
criminal justice system can push the police into a more fair and
just agency of social control.

----