In the ongoing case of Paramvir Singh Saini vs Baljit Singh and Ors (S.L.P Crl. No. 3543 of 2020), the Supreme Court’s three Judge Bench (Justices Rohinton Nariman, K.M Joseph and Aniruddha Bose) is considering the installation of CCTVs in all police stations across the country to check State abuse.
This matter before the top court arises from the final order by the Punjab and Haryana Court dealing with illegal detention of the petitioner’s sons.
On November 22, 2016, Justice Fateh Deep Singh of the Punjab & Haryana High Court held that illegal detention of petitioner’s sons by the Police was a violation of their Right to Life under Article 21 of the Constitution. (Baljit Singh & Ors vs State of Punjab CRWP No. 1245 of 2016)
“From the conduct of the respondent-State through its functionaries, the Police Officials have tortured and criminally assaulted causing indignity to these persons which conduct is cruel and inhumane and, thus, necessitates intervention by this Court”, he said while directing compensation to be paid as a relief to redress to some extent the wrong done to the persons who were illegally detained by the Police.
In 2020, a Special leave Petition was filed before the top court in pursuance of the same matter, focusing on the larger question of installing CCTVs in police stations and audio-video recordings of the statement given to the Police under section 161 (examination of witnesses by the Police) of the Code of Criminal Procedure. This was done to explore the measures that can be taken to curb police brutality.
On September 16, 2020, the Bench of Justices Rohinton Fali Nariman, Navin Sinha and Indira Banerjee, decided to implead all States and Union Territories (UT’s) in the matter to seek their responses on the exact position of installation of CCTV cameras. In addition to this they also ordered the states to apprise the court on the compliance with its 2018 order on the status of the constitution of Oversight Committees.
The 2018 judgment of the Supreme Court (Shafhi Mohammad v. State of Himachal Pradesh (2018) 5 SCC 311), by Justices Rohinton Fali Nariman and Adarsh Kumar Goel, had directed every State to have an oversight mechanism where an independent committee can study the CCTV camera footages and periodically publish report of its observations.
People’s Watch and Evidence are two human rights organisations based out of Tamil Nadu, dedicated towards the cause against illegal detentions, custodial torture, rapes, instances of police brutality and assisting survivors in their legal battles. Both organisations/applicants have sought intervention in the matter before the Supreme Court raising pertinent concerns with respect to investigative practices by the Police.
They have placed before the apex court, issues on the legitimacy of audio or video recording of the statements to the police, CCTV cameras, general issues regarding the electronic medium.
Section161(3) Proviso of the Code of Criminal Procedure gives discretion to the police officers to record the statement of a witness by audio-video or other electronic means. The intervenors/applicants have tried to put forth that allowing audio video recordings of statements by the police will give credibility to something that is not admissible in law. All statements recorded by the police under Section 161(3) of the CrPC, whether of an accused or witnesses, cannot be used as evidence in a court of law under section 162 of CrPC.
Section 162 provides that statements made to the police need not be signed by the accused or witness since such statements can only be used to contradict a witness on the stand during cross examination only. These statements can never be used for corroboration or substantial evidence. So, audio video recording it, would be practically giving a stamp akin to a signature to it, and therefore, it would be more appropriate to clarify that such a recording should not be considered to be voluntary any more than statements recorded in writing.
Under general principles of Evidence Act, a confession made to a police officer under any circumstances is not admissible in evidence against the accused in a court of law. Since this law does not assign credibility to statements made by witnesses or accused, giving legitimacy to audio video recordings serve no purpose to protect detainees from custodial abuse.
For instance, the application states, “If the concern is to protect an accused from custodial abuse, then encouraging an audio-video record is unlikely to serve that purpose because there is nothing to prevent the custodial officers from exercising the worst possible pressure or threats elsewhere, prior to making such a recording, and ensuring that the person nevertheless gives the recording in surroundings which seem sanitized. The very body of the person in custody is in the utter control of the custodial agency.” Psychological threats can have a greater impact than physical abuse.
Another technical issue that may arise, as described by the applicants is that certain portions of the recordings can be conveniently edited by the police which might not suit their narrative. So, if the intention is to preserve the credibility of witnesses and prevent them from deliberately lying, there are enough powers under Section 195 (giving false evidence to get a conviction) of the IPC read with Section 340 (inquiry into section 195 offences) of the CrPC to check such pernicious conduct.
The applicant hence, contends that even granting that witnesses may tend to deviate from their earlier positions for the wrong reasons, it is worth bearing in mind that persons of such flimsy reliability ought not to be trusted with their audio video recorded statements to the police either.
While the 128th Parliamentary Standing Committee noted that the Malimath Committee, in 2003, intention behind providing for audio-video recording of witness statements to the police was to reduce the possibility of witnesses changing their statements at a later stage or turning hostile, it rejected the same on the grounds that such a provision would violate the right against self-incrimination under Article 20(3). Such sections could be misused by the police.
Article 20(3) stipulates that no person accused of any offence shall be compelled to be a witness against himself. In Selvi and Ors vs State of Karnataka (SLP Crl. No. 10 of 2006), the court had held that this Article 20(3) protection against testimonial compulsion not only applies during trial but also during the stage of investigation. It has also been held that the guarantee applies equally to witnesses as it does to the accused; and that the right also protects all forms of testimony – verbal, written and/or non-verbal.
These are also not a fruitful solution as sometimes; the camera could be deliberately switched off by the authorities or detained persons/prisoners could be taken to ‘safehouses’ that lack monitoring tools.
SabrangIndia had reported on Justice Rohinton Nariman’s remark when the Bench was informed by the Tamil Nadu counsel that the Tamil Nadu prisons have installed CCTV’s wherever it is important. To this, Justice Rohinton remarked, “Unimportant places are where accused will be thrashed by Police”.
The organisations have also stated that when a Magistrate is allowed to record a statement of the accused in the presence of his lawyer under section 164 of Cr. PC via audio/video means, putting unprecedented power in the hands of investigative agencies without a lawyer’s presence can be unsafe. Judicial officers do not hold any stake in the investigations, but investigating authorities do. So, to lay undue trust on such recordings by an investigating agency could be detrimental to the rights of the accused.
During the investigation of the brutal custodial violence against the father son duo in Tuticorin, Tamil Nadu, BBC news had reported that the Judicial Magistrate did not get access to the CCTV footage from the night of the assault as the record was allegedly erased. Placing CCTV cameras can significantly act as a contributing factor to reducing ill treatment but it still lacks assurance.
In addition to CCTV cameras, the applicants also share concern over the usage of electronic devices in the police stations amongst other places and as a part of investigative techniques. Evidence seized in an electronic medium like a computer can include personal information, details of professional life, entertainment in addition to the actual evidence required for investigative purposes. Correspondence by way of emails and chats which is an integral aspect of privacy can be exposed which causes a breach.
The application reads, “Given the primacy of privacy and given the Constitutional limits on state power, the seizure of electronic/digital evidence without any guidelines or safeguards is giving the state control of a nature that cannot be constitutionally countenanced.”
In Justice (Retd) Puttaswamy v Union of India (2017) 10 SCC 1, a nine-judge bench of this Hon’ble Court reaffirmed the recognition of the right to privacy as a fundamental right protected under Part III of the Constitution including Article 21. When it comes to search and seizure of documents or anything necessary for investigation- the following sections guide the procedure.
1) Courts and the police have power under Section 91 of the CrPC to call for a document or other thing if necessary or desirable for the purposes of any investigation, enquiry or trial.
2) Section 93 of the CrPC is a provision by which a Court directs a search warrant after considering its justification. It is open to a Court under Section 93(2) to specify the places at which the warrant may be executed.
3) While investigating a cognizable offence, a police officer does have the power to search under Section 165 of the CrPC, but he is expected to record reasonable grounds for believing that it is something necessary for investigation, which is to be found in “any place”, after recording in writing the grounds of his belief.
Hence, there is a requirement to put on record what it is that is being looked for and where it is expected to be found, although this is often followed in the breach. The term document under section 93 can also mean all documents in a computer. If the term document in Section 93 is to be read in the manner defined under the IT Act, even then it is required that a specific document be named or described.
Likewise, when a phone is seized, it is so much about the person and also his/her contacts, as it has been seen that such contacts are also harassed, therefore, search and seizure powers of electronic/digital devices will have to be civilized, by way of directives from courts, so that they apply to all agencies uniformly.
Such search and seizure have to be shaped by some due process and specificity as to cause, relevance, location, and description and proper guidelines need to be in place.
The well-intentioned Judiciary acknowledges the unwarranted police brutality within the walls of prisons and police stations, aspiring to construct a framework within which such atrocities can be eliminated. But the concentration on infrastructural changes must be diverted to the entrenched systemic flaws. Legislations also need to be narrowed down to specifics in the general interest of everyone involved in the criminal justice system.
Activist Biswapriya Kanungo suggests that training on human rights and social behaviour must be given priority, as per The New Indian Express reports. Counselling and sensitive training of this executive branch may help in bringing about a more productive change instead of CCTV cameras.