Introduction

The criminal justice dispensation system of India depends much upon the policing and the proactive role played by the judiciary, specially those officers from the lower ranks of the judiciary. Even though scholars and experts argue that the judiciary and the police, (the arm of the executive primarily responsible for law and order), are two independent institutions maintaining the rule of law in the country, in practice they are both interdependent and at times, very deficient in their functioning.

This interdependency continues all the way through from the very stage of institution of a criminal case to that of the prescribing of punishment if the accused is finally convicted and sentenced for imprisonment or acquitted as the case may be. However the criminal justice dispensation system in India has deteriorated to such an extent from pre-independence times that recovery and salvage of its basic tenets of justice and fairplay is practically impossible without a conscious and earnest effort on the part of all those citizens and organisations who are concerned with these issues. Currently, a conscious effort in this regard appears to be lacking.

The practical effect of the D.K. Basu case and the plight of Lilabati Chowdhury

However the criminal justice dispensation system in India has deteriorated to such an extent from pre-independence times that recovery and salvage of its basic tenets of justice and fairplay is practically impossible without a conscious and earnest effort on the part of all those citizens and organisations who are concerned with these issues.

Scholars often refer to judgments of Indian courts in their academic discourses and highlight these judgments as role models for other courts in several countries. But for practical purposes, these judgments only serve a limited purpose of high academic discourse. One such example is the D.K. Basu case. 1

This case originated from the state of West Bengal in India. Here, the  Supreme Court ruled that certain guidelines need to be followed during the time of arrest of a citizen. The court also directed in its judgment that these rules are mandatory in nature and that non-compliance would be severely dealt with. Though the judgment dates back to 1997 and has been highly  lauded in several countries, nothing has been heard from the various states to the effect that this 'landmark' judgment has made any impact.  Several cases of police torture reported from the same state, West Bengal, prove this argument.

Lilabati Chowdhury, seven months pregnant and mother of two children, was brutally beaten by a police patrol party of the Beharampore police station Murshidabad District, West Bengal, India at midnight on 7 August 2004. The police officers had entered Lilabati's hut allegedly looking for her husband and had prodded her awake with their batons. Lilabati had been sleeping in the courtyard with her children.

Lilabati's husband, Chhutka Chowdhury, is a daily wage laborer who catches fish in his spare time. The Chowdhury family belong to the Dalit community and are very poor. On the night of August 7, Chhutka was fishing in the nearby river, which is what Lilabati told the police. However, the police continued searching for him in other houses. Desperately, Lilabati asked the police why they were being harassed when there was no complaint against them, which was confirmed by the subsequent statement of the neighboring villagers. Lilabati also protested against the vulgar language used by the police towards her. The police then brutally assaulted Lilabati with their batons, seriously injuring her despite her pregnant state. Lilabati was admitted to the Baharampur Block Hospital in the Karnasubarna area, where it was reported that the condition of her baby was uncertain.

Thereafter, several uniformed policemen came to the hospital late at night without informing the hospital authority and warned Lilabati not to speak to anybody about the incident. The policemen also left Rs.100 on Lilabati¡¦s bed and told her to purchase some fruits with the money. The next day, the medical officer at the hospital said that while he was informed by hospital staff that some male policemen in uniform had come to the hospital and had gone directly to the female ward last night, the police officers had not obtained permission for such a visit. Neither had the hispital staff been informed of their visit.

When asked about the entire incident, the Deputy Police Super of Murshidabad district, Sahabul Hossein, said, " do not know of any such incident. No one has reported anything to me. After proper enquiry, steps will be taken if necessary."

The villagers stated that Chhutka's family was innocent and were not involved with any disputed village affairs. They failed to understand why the police assaulted Lilabati in her house. As of yet, no action has been taken against those responsible.

If this case, on a private complaint is taken to a local court narrating what the police had done to Lilabati, (a victim of brutal torture), it is probable that the court would not admit the case. Even if admitted, it would only refer the case to the same police station for an inquiry or report. One can imagine how far such an investigation would be impartial and truthful?

As it is evident, the fact that Pal was detained without relief for so long implies that all these judicial officers were implicated in the extension of the remand without seeing the detainee. It also implies that even though the judicial officers were responsible for the custody of the person, they ignored their duty and failed in the discharge of their judicial functions

The Satya Pal Case

According to prevalent law in India, once a person is arrested and remanded to custody, then the procedure is that the person remanded could be considered as under judicial custody. However this judicial custody could be only for fourteen days. This period could be extended after production of the person before the concerned magistrate or other judicial officer if his detention is necessary. However, the remandee is not released on bail. In theory, the person should be produced before the magistrate every fourteenth day. But what happens in reality is much different. Again this case is reported from the same state, West Bengal from which came the much applauded D.K. Basu decision.

On 24 July 1979, Mr. Satya Pal was arrested on suspicion of being involved in a murder case from his village Hayatpur by the officials of Khanakul police station, Hooghly District, West Bengal. (Case no.16 of 1979 under section 302 of IPC of Khanakul Police Station). He was produced before the court and the Sub Divisional Judicial Magistrate remanded him to Hooghly District Jail in 1979. 15 months later, Mr. Satya Pal was transferred from the Hooghly District Jail to the Dum Dum Central Jail. From that date till now Mr. Satya Pal is detained in the Dum Dum Central Jail waiting for trial. In the meantime, his case was transferred to Sessions Court of Hooghly District (Sessions Trial no. 134/1980).

Mr. Satya Pal is reported as being mentally ill. After twenty four years of imprisonment he has become insane, but the doctors, up to now, could not come to a conclusion that whether he had been already mentally disturbed when he had been arrested or not. Circumstantial evidence suggests that Mr. Satya Pal might have been mentally ill at the point of his arrest. The Mental Health Act of 1987 of India provides for protection of mentally ill people while they are under custody whether it is in regard to pre-trial or after conviction. Disregarding such standards also violates the "Principles for the protection of persons with mental illness and the improvement of mental health care" adopted by General Assembly resolution 46/119 of 17 December 1991.

What is wrong here? The explanations are simple. To narrate a few more instances; if one goes to the police station to lodge a complaint, one needs to first inquire about the 'rates' of the officers. The ¡¥rates¡¦ simply mean the amount that one should pay for getting his or her work done. Apart from paying the 'required' 'rate', one needs also to buy paper for writing down the complaint, carbon for getting a copy, coffee, tea, food and other drinks including alcohol for the officers. If there needs to be an  investigation of the case involving travel, one needs to hire a vehicle and traveling includes other incidentals as well.

Assuming that these demands are all complied with, what happens then? The demands get more outrageous and the process drags on until the 'accused' is exhausted. The final outcome is a report, which does not amount to much in its substance. If one is willing to take the course of appealing to court for redress, then the payment context shifts to paying the lawyer and often, the judge as well.

In Satya Pal's case mentioned above, more than one judicial officer is responsible. Given the horrendously long period of twenty-five years and taking into account, the fact that every judge would only serve for a fixed term of three years in a station, at least eight judges have ignored this case. To extend the remand, the police should produce the person before the court and the court should actually record the reasons for extending the remand. As it is evident, the fact that Pal was detained without relief for so long implies that all these judicial officers were implicated in the extension of the remand without seeing the detainee. It also implies
that even though the judicial officers were responsible for the custody of the person, they ignored their duty and failed in the discharge of their judicial functions.

What is the actual nexus between these illegal acts of the judicial officers and corrupt police officers? We see many instances where judicial officers collect money and bribes in other forms through the local police. The prosecutors also play a role in this game, as it was exposed in the infamous case reported from Allahabad, where the judicial officer was issuing warrants after accepting bribes. This nexus does not end in a mere bribery deal but continues further. For example, the police officers, (as figures representing law and order in a particular locality), would be the first to get free tickets for shows and exhibitions. Thus, these tickets would be shared with judicial officers. We have had instances where police officers are used by judicial officers for tasks such as booking train tickets and obtaining movie tickets. How then can the judicial officer be honest in discharging his duty against any police officer who is abusing his powers? This is a classic situation where birds of the same feather are compelled to fly together.

Conclusion; What Should the Indian People Do?

In this background, when the Supreme Court delivers judgments, these are of limited impact. Who benefits from these high sounding pronouncements? Even though the judgment of the Apex Court is considered as the law of the country, its effect is limited to paper. As a result, ordinary people are rendered mute and helpless by reason of their extreme vulnerability. The Government of India maintains that India's domestic legislation is adequate to prevent any such happenings as mentioned above, which amount to blatant violation of the rights to life and liberty. But the fact is that, in the implementation of these laws, the problems that emerge are such as to defeat the very purpose of the laws themselves.

As the first step towards effective redressing of these grave problems that have arisen in the protection of basic norms of the rule of law in the country, it is necessary that India ratifies the Convention against Torture (CAT). If the CAT is ratified, the State will have to enact a domestic law to prevent torture and also to provide effective remedies in cases of torture. This should be accompanied by an earnest effort to prosecute cases of torture. In the process, one should also put into place adequate measures of protection of the victims of these cases since such people are at risk where the protectors are the perpetrators.

Unless the people feel impelled to take up their own cause and fight for the justice that is due to them, the prevalent violation of rights will never stop. For the victim to urge that the act of violation perpetrated against him should be prosecuted, he or she should have the basic feeling of safety and assurance of a result, (and that too, a result in one's life time). For this, the people need to engage in a long march towards achieving these objectives and have the courage to sustain immense pressure and inevitable opposition in this process.

Unless and until this transformation takes place, the Indian people would have judgements that are lauded internationally as models of judicial activism but which have little or no practical impact domestically.

Bijo Francis presently works as a programme officer at the Asian Legal Resource Centre

Editorial Note;

In the D.K. Basu case, the Court took note of the fact that the earlier decision of similar nature have not had effect at the ground level. Accordingly it was stated that failure on the part of any police officer to comply with these requirements shall, apart from rendering the official concerned liable for departmental action, also render him liable for contempt of court.

The Court further directed that these requirements laid down in the aforesaid matter be forwarded to the Home Secretary of every State. The Secretaries are obliged to circulate this to all police stations under their charge. All State Governments were moreover directed to file affidavits to ascertain the extent of compliance of the directions issued in the aforesaid decision of D.K.Basu case.

The D.K. Base case laid down the following principles;
- All personnel carrying out the arrest and interrogation must bear clear identification with name and designation;

- An arrest memo is to be prepared at the time of arrest containing the time and date of arrest, which is to be signed by a witness and countersigned by the arrestee; a friend or relative of the arrestee shall be informed of the arrest and the place of detention;

- the arrestee shall be informed of this aforesaid right as soon as he is arrested; an entry should be made at a diary in the place of detention regarding the arrest and also the name of the friend or relative of the arrestee who has been informed should be entered in this diary; the arrestee should be examined at the time of arrest and any injuries present on the person should be recorded in an inspection memo to be signed by the arrestee and the officer effecting the arrest;

- the arrestee should be subjected to medical examination every 48 hours during his detention by a doctor from the approved panel of doctors; copies of all the aforesaid documents should be sent to the concerned agistrates; the arrestee may be permitted to meet his lawyer during interrogation.

1 D. K. Basu v State of West Bengal (1997) 1 Supreme Court Cases p. 416